Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50622

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OSCAR ELOY TENA

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-4-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Oscar Eloy Tena pleaded guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 84 months in

prison. He argues that the district court erred in applying a four-level upward

adjustment pursuant to U.S.S.G. § 2K2.1(b)(6) for possessing a firearm in

connection with another felony offense, namely, the offense of unlawfully

carrying a weapon on licensed premises, in violation of TEXAS PENAL CODE ANN.

§ 46.02. Tena asserts that the offense of unlawfully carrying a weapon was not

United States Court of Appeals

Fifth Circuit

F I L E D

July 24, 2009

Charles R. Fulbruge III

Clerk
No. 08-50622

2

sufficiently distinct from the offense of being a felon in possession of a firearm

so as to permit the enhancement. 

After United States v. Booker, 543 U.S. 220 (2005), this court continues to

review a district court’s interpretation and application of the guidelines de novo

and its findings of fact for clear error. United States v. Villegas, 404 F.3d 355,

359 (5th Cir. 2005). In determining whether a guideline enhancement applies,

a district court is allowed to draw reasonable inferences from the facts, and these

inferences are fact-findings reviewed for clear error. United States v. Caldwell,

448 F.3d 287, 290 (5th Cir. 2006).

The Sentencing Guidelines provide for a four-level increase if the

defendant “used or possessed any firearm or ammunition in connection with

another felony offense.” § 2K2.1(b)(6). “Another felony offense” is defined as

“any federal, state, or local offense, other than the explosive or firearms

possession or trafficking offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought, or a

conviction obtained.” § 2K2.1, comment. (n. 14)(C)). 

A person violates § 46.02(a) if he intentionally, knowingly, or recklessly

carries on or about his person a weapon. An offense under this section is a

felony if the offense is committed on any premises licensed or issued a permit by

this state for the sale of alcoholic beverages. § 46.02(c). Tena does not dispute

that he violated § 46.02(c).

Here, Tena’s mere possession of the firearm would not itself implicate

§ 46.02(c). Rather, Tena also had to carry or possess the firearm on licensed

premises, an act that goes beyond mere possession. See United States v. Kuban,

94 F.3d 971, 975-76 (5th Cir. 1996). Thus, the enhancement was properly

applied. See id. at 976; see also United States v. Armstead, 114 F.3d 504, 512-13

(5th Cir. 1997).

We also agree with the Government’s alternative argument that Tena’s

conduct of waving the loaded firearm at a crowd of people warranted the
No. 08-50622

3

imposition of the enhancement. See Kuban, 94 F.3d at 976; United States v. Le,

512 F.3d 128, 134-135 (5th Cir. 2007); § 2K2.1, comment. (n.14(C)).

AFFIRMED.