United States v. Coleman

Case: 09-30545 Document: 00511143724 Page: 1 Date Filed: 06/16/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 16, 2010

No. 09-30545 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JAMES RAY COLEMAN

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before GARWOOD, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

James Ray Coleman was charged with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He sought dismissal on the ground

that his underlying felony conviction was not a valid predicate offense. The

underlying felony conviction was pursuant to 18 U.S.C. § 371 for conspiracy to

pirate encrypted satellite signals and to infringe a copyright. Coleman alleged

that the conviction should fall within the 18 U.S.C. § 921(a)(20)(A) exception to

§ 922(g)(1) for offenses relating to the regulation of business practices. The

district court ruled that Coleman’s prior conviction did not fall within the §

921(a)(20)(A) exception and that the exception was not unconstitutionally vague,

and denied the motion to dismiss. Coleman then conditionally pleaded guilty,

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and now appeals the denial of the motion to dismiss. He also appeals the

assignment of a four-point increase to his offense level for “possession of a

firearm in connection with another felony offense” for stalking under L A. R EV .

S TAT. § 14:40.2. We AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background

Frankie Manley called 911 to report that James Ray Coleman was on his

way to her residence to kill her, her adult granddaughter, and himself. Deputies

from the East Carroll Parish Sheriff’s Office responded to the call and, upon

arrival, found a visibly intoxicated Coleman at his shop across the street from

the Manley residence. When asked if he “had anything on him,” it was

discovered that he had a pistol in his waistband.

Manley explained to the deputies that Coleman had been living at her

residence, but that she had asked him to leave three days earlier because of his

drinking problem. Manley told officers that Coleman called her several times a

day begging her to allow him to return and threatening her if she did not. He did

this for three days straight, and became upset each time Manley refused to allow

him to return. He became belligerent and threatened her and her

granddaughter. Manley believed her life was in danger and was so upset that

she could not write a statement. Coleman was arrested for felonious stalking

under Louisiana law.

B. Procedural History

Coleman was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Coleman filed a Motion to Dismiss the

indictment, alleging that the underlying felony conviction was not a valid

predicate offense because it fell within the 18 U.S.C. § 921(a)(20)(A) exception

to § 922(g)(1) for offenses relating to the regulation of business practices, and

that Coleman was therefore not prohibited from possessing a firearm under §

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922(g)(1). Coleman’s underlying felony conviction was a 1994 conviction under

18 U.S.C. § 371 for conspiracy to manufacture or distribute equipment for

decrypting satellite cable signals in violation of the Communications Act of 1934,

47 U.S.C. § 605(e)(4), and to willfully infringe a copyright in violation of the

Criminal Copyright Infringement Statute, 17 U.S.C. § 506(A). See United States

v. Coleman, No. 1:92-10016-3 (W.D. La. Feb. 4, 2009).

The district court denied the Motion to Dismiss. Relying on Dreher v.

United States, 115 F.3d 330, 332 (5th Cir. 1997), the district court found that the

offense of conspiracy pursuant to § 371 is not excepted from the scope of the felon

in possession statute by § 921(a)(20)(A). The district court also stated that even

if it were to consider the target offenses of the conspiracy, Coleman’s prior

conviction would still qualify as a predicate felony for purposes of the firearm

statute because theft of copyright-protected satellite programming was not an

unfair business practice. In addition, the court rejected Coleman’s argument that

the statute was unconstitutionally vague. Coleman then entered a conditional

plea of guilty, reserving his right to appeal the denial of his motion to dismiss

the indictment.

At sentencing, the Presentence Investigation Report (PSR) calculated

Coleman’s offense level at 15 with a criminal history category of I, yielding a

Guidelines sentencing range of 18 to 24 months. After hearing testimony from

an East Carroll Parish Sheriff’s Deputy who participated in Coleman’s arrest,

the district court concluded that Coleman had possessed the firearm in

connection with another felony offense—the Louisiana offense of felonious

stalking—and increased his offense level by four. Coleman objected to this

increase and the court overruled his objection. The court then imposed a

21-month term of imprisonment to be followed by a three-year term of

supervised release. Coleman did not object to the reasonableness of his sentence.

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II. DISCUSSION

A. Evaluating a Predicate Offense under the Business Practices Exception

Coleman first asserts that the district court erred by denying his Motion

to Dismiss the indictment. He claims that his § 371 conviction for conspiracy to

violate § 605(e)(4) and § 506(a) falls within the “business practices exception”

created by § 921(a)(20)(A) for offenses “pertaining to antitrust violations, unfair

trade practices, restraint of trade, or other similar offenses relating to the

regulation of business practices.” Because Coleman’s motion to dismiss the

indictment was based on the interpretation of a federal statute, this court

reviews the denial of the motion de novo. See United States v. Perez-Macias, 335

F.3d 421, 425 (5th Cir. 2003).

The “felon in possession of a firearm” statute, 18 U.S.C. § 922(g)(1), makes

it a crime “for any person who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year . . .” to possess a

firearm or ammunition which has traveled in interstate or foreign commerce.

The “business practices exception” to § 922(g)(1), set out in 18 U.S.C. §

921(a)(20), excludes from the definition of a “crime punishable by imprisonment

for a term exceeding one year . . . any federal or state offenses pertaining to

antitrust violations, unfair trade practices, restraints of trade, or other similar

offenses relating to the regulation of business practices . . . .” Thus, a felon in

possession of a firearm who has been convicted of one of the types of violations

itemized in § 921(a)(20)(A) cannot be found guilty under § 922(g)(1) on the basis

of that conviction.

In Dreher v. United States, this court applied a framework for evaluating

whether a prior felony conviction falls within the § 921(a)(20)(A) business

practices exception. 115 F.3d at 330. The defendant had been convicted of

conspiracy to commit mail fraud and mail fraud in violation of 18 U.S.C. §§ 371,

1341 and 1342. Id. at 331. He petitioned for a declaratory judgment that he was

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not a convicted felon under § 922(g)(1) because the predicate offenses fell within

the business practices exception. Id. The defendant argued that the court should

evaluate the conduct underlying the convictions— billing for services not

rendered. The Dreher court, however, reasoned that “the plain meaning of the

term ‘offenses’ in the context of the statute is the charged violation of law, not

the facts underlying the violation of law.” Id. at 332. The court evaluated

whether the elements that the Government was required to prove under 18

U.S.C. §§ 371 and 1341 depended “on whether they have an effect upon

competition.”1 Id. at 332-33. It analyzed the statutes as follows:

The “offenses” (or violations of law) of which Dreher was convicted

are conspiracy to commit mail fraud and mail fraud, pursuant to 18

U.S.C. §§ 371, 1341. To prove conspiracy under § 371, the

government must show: (1) an agreement between two or more

persons to commit an unlawful act and (2) an overt act by one of the

conspirators in furtherance of the agreement. See United States v.

Schmick, 904 F.2d 936, 941 (5th Cir. 1990). To convict under § 1341,

the government must prove (1) a scheme to defraud; (2) intent to

defraud; and (3) use of the mails in furtherance of the scheme. See

United States v. Nguyen, 28 F.3d 477, 481 (5th Cir. 1994).

Id. at 332. The court then held that “[b]ecause violations of §§ 371 & 1341 in no

way depend on whether they have an effect upon competition, they are not

1

Like this court in Dreher, other circuits have similarly adopted an elements test to

determine whether a predicate offense has an effect on competition or on consumers for

purposes of determining the applicability of § 921(a)(20). See United States v. Schultz, 586 F.3d

526, 530 (7th Cir. 2009) (holding that in order for an offense to fall within § 921(a)(20)(A)’s

exception, the Government must “have been required to prove, as an element of the predicate

offense, that competition or consumers were affected; possible incidental effects are not

relevant.”); United States v. Stanko, 491 F.3d 408, 421 (8th Cir. 2007) (holding that a prior

conviction under the Federal Meat Inspection Act (FMIA) was not excepted by § 921(a)(20)(A)

because “none of the provisions of the FMIA require the Government to prove an effect upon

competition or commerce as an element of the offense.”); United States v. Meldish, 722 F.2d

26, 28 (2d Cir. 1983) (refusing to apply the business practices exception where the defendant’s

prior conviction “in no way depends upon whether it has an effect on competition or

consumers.”).

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‘offenses’ that are excluded from the § 921(a)(20) definition of ‘crimes punishable

by imprisonment for a term exceeding one year.’” Id. at 333.

The defendant in Dreher had been convicted of both conspiracy to commit

mail fraud under § 371 and mail fraud under § 1341. Id. at 332. Both or either

of those convictions could have potentially functioned as predicate offenses under

§ 922(g)(1). Consequently, the court’s evaluation of the elements under both §

371 and § 1341 does not necessarily clarify whether, in cases such as the present

one, the court must evaluate the elements of the offense underlying a conspiracy

conviction where there is no conviction for the underlying offense. Additionally,

although Dreher specifically rejected any examination of the facts underlying the

charged crime, it did not clearly address whether the court might examine the

violation of the law that is the target of the charged conspiracy.

The Government asserts that, consistent with the categorical approach of

Taylor v. United States, 495 U.S. 575 (1990), the district court properly

evaluated only the elements of the charged offense for the prior conviction to

determine whether an offense falls within the business practices exception. The

Government claims that the offenses that were the target of the conspiracy are

merely underlying facts and are irrelevant to Dreher’s elements test. If we were

to apply the approach advocated by the Government, we would not consider the

target offenses of the conspiracy conviction, but would analyze only the elements

of conspiracy pursuant to § 371. This reasoning would require the conclusion

that any conspiracy conviction pursuant to § 371 would qualify as a predicate

offense under § 922(g)(1).

We reject such a conclusion. According to the Government’s position, a

conviction under § 371 invariably qualifies as a predicate offense under §

922(g)(1), even where the “unlawful act” that was the object of the conspiracy is

one of the offenses listed in § 921(a)(20)(A). But, for example, given that the

language of § 921(a)(20)(A) exempts “any Federal or State offenses pertaining to

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antitrust violations,” conspiracy to commit an antitrust violation would be an

offense “pertaining to antitrust violations.” (emphasis added).

Moreover, a conviction for conspiracy under § 371 requires that the

Government show: (1) an agreement between two or more persons to pursue an

unlawful objective; (2) the defendant’s knowledge of the unlawful objective and

voluntary agreement to join the conspiracy; and (3) an overt act by one or more

of the members of the conspiracy in furtherance of the objective of the

conspiracy. United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001) (citing

United States v. Dadi, 235 F.3d 945, 950 (5th Cir. 2000)). Thus, § 371 requires

that the Government prove as an element that the conspiracy was targeted at

a specific offense or “unlawful objective.”2 See United States v. White, 571 F.3d

365, 372 (4th Cir. 2009) (“[t]he Conspiracy Offense cannot be divorced from its

. . . objective”). Consequently, if the targeted offense requires the Government

to prove an effect upon competition as an element of the offense, then the

conspiracy conviction falls within the business practices exception.

We therefore conclude that the district court erred by evaluating only §

371; the analysis under § 921(a)(20)(A) also requires an examination of the

elements of the target offense of the conspiracy conviction. As the district court

correctly held in the alternative, however, even considering the target offenses

2

As described in the Fifth Circuit’s pattern jury instructions:

Title 18, United States Code, Section 371, makes it a crime for anyone to

conspire with someone else to commit an offense against the laws of the United

States. . . . For you to find the defendant guilty of this crime, you must be

convinced that the government has proved each of the following beyond a

reasonable doubt: First: That the defendant and at least one other person made

an agreement to commit the crime of _______ (describe) as charged in the

indictment; Second: That the defendant knew the unlawful purpose of the

agreement and joined in it willfully, that is, with the intent to further the

unlawful purpose; and Third: That one of the conspirators during the existence

of the conspiracy knowingly committed at least one of the overt acts described

in the indictment, in order to accomplish some object or purpose of the

conspiracy.

FIFTH CIRCUIT CRIM INAL PATTERN JURY INSTRUCTIONS (2001) § 2.20.

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of the conspiracy, Coleman’s prior offense qualifies as a predicate felony for

purposes of § 922(g)(1). The first offense3 charged as the target of Coleman’s

conspiracy conviction was 47 U.S.C. § 605(e)(4), the Communications Act of

1934. To prove a violation of § 605(e)(4), the Government must show that the

defendant: (1) manufactured, assembled, modified, imported, exported, sold, or

distributed; (2) any electronic mechanical, or other device or equipment that was

primarily of assistance in the unauthorized decryption of satellite cable

programming or direct-to-home satellite services; (3) while knowing or having

reason to know that the device or equipment was primarily of assistance in the

unauthorized decryption of satellite cable programming or direct-to-home

satellite services. These elements do not require any proof of “an effect upon

competition.” Dreher, 115 F.3d at 332.

Coleman argues that the legislative history of the Communications Act

indicates that the purpose of § 605 is to protect the competitive nature of the

satellite industry and prohibit unfair trade practices. Courts have looked to the

legislative history of a statute in order to determine whether it falls within the

business practices exception. See, e.g., Stanko, 491 F.3d at 416-17 (“[T]he

statement of congressional findings . . . includes concerns about the effects of

unwholesome meat on competition and markets. These concerns, however, are

subordinate to the FMIA’s primary public-health purpose. . . ”); United States v.

McLemore, 792 F. Supp. 96, 98 (S.D. Ala. 1992) (“[O]dometer rollback is

prohibited by 15 U.S.C. §§ 1984 and 1990c(a) as an unfair trade practice exactly

because of its ‘effect on competition and consumers.’ This interpretation is

3

We evaluate both the alleged target offenses of the conspiracy conviction because it

is unclear from the record which of the two target offenses (or both) provided the basis for the

conspiracy conviction. Where there is only one conspiracy count and the finder of fact was

required to find that the conspiracy has as its object each of the target offenses, then it would

presumably be sufficient to deny the exception if there was at least one target offense that did

not meet it. However, if the conviction could have been based on either target offense, and we

cannot discern which one it was based on, then both must be evaluated.

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supported by the legislative history of the Truth in Mileage Act of 1986.”). But

legislative history remains secondary to an examination of the elements of the

statute. See Stanko, 491 F.3d at 416-17 (“[M]ore significantly, none of the

provisions of the FMIA require the Government to prove an effect on competition

or consumers as an element of the offense.”). Regardless, even taking into

account legislative history, this court has stated that § 605(e)(4)’s “purpose is to

proscribe the piracy of programming signals, whether they be for commercial or

personal use.” United States v. Harrell, 983 F.2d 36, 39 (5th Cir. 1993).

The other offense charged as the target of Coleman’s conspiracy conviction

was 17 U.S.C. § 506(A), the Criminal Copyright Infringement Statute. To prove

a violation of § 506(A), the Government must show that the defendant: (1)

willfully infringed; (2) a valid copyright; (3) for commercial advantage, for

private financial gain, or in a manner otherwise prohibited by the statute. See

17 U.S.C. § 506(A). For the conviction to fall within the business practices

exception, the Government must “have been required to prove, as an element of

the predicate offense, that competition . . . [was] affected; possible incidental

effects are not relevant.” Schultz, 586 F.3d at 530; see also Dreher, 115 F.3d at

332. Under § 506(A), the Government would not have been required to prove any

effect upon competition.

We hold that in evaluating whether a § 371 conspiracy conviction falls

within the business practices exception, courts must evaluate the elements of §

371 and the target offenses of the conspiracy. Here, the conspiracy conviction for

the target offenses of § 605(e)(4) and § 506(A) does not fall within the business

practices exception. Coleman’s prior conspiracy conviction is therefore a

predicate offense for purposes of § 922(g)(1), and we affirm the conviction.

B. Constitutionality of the Business Practices Exception

In his second point of error, Coleman asserts that the phrase in §

921(a)(20) excluding as predicate offenses “any . . . offenses pertaining to

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antitrust violations, unfair trade practices, restraints of trade, or other similar

offense relating to the regulation of business practices” is unconstitutionally

vague. Whether a statute is unconstitutionally vague is a question of law, which

this court reviews de novo. United States v. Rudzavice, 586 F.3d 310, 315 (5th

Cir. 2009) (citing United States v. Monroe, 178 F.3d 304, 308 (5th Cir. 1999)).

The vagueness doctrine “bars enforcement of ‘a statute which either

forbids or requires the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its

application.’” United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally

v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). A principal element of the

vagueness doctrine is “the requirement that a legislature establish minimal

guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 357

(1983) (internal quotation marks and citation omitted). The touchstone of the

analysis, however, “is whether the statute, either standing alone or as construed,

made it reasonably clear at the relevant time that the defendant’s conduct was

criminal.” Lanier, 520 U.S. at 267.

Addressing § 921(a)(20), the dissent in United States v. Stanko stated that

it “is a criminal statute that is impermissibly vague.” 491 F.3d at 420 (Bright,

J., dissenting) (citing Kolender, 461 U.S. at 357). The Stanko dissent explained

that to apply the exemption for “similar offenses” under § 921(a)(20), courts must

determine which business offenses are similar to antitrust violations, unfair

trade practices, and restraints of trade. Id. at 420-21. It reasoned that “[t]he

complete absence of Congressional guidance and scarcity of federal precedent

leaves the meaning of the similar offenses clause unconstitutionally vague, and

thus the class of individuals who may possess a firearm without the threat of

prosecution is in part undefined.” Id. at 421.

Rejecting the conclusion that § 921(a)(20) is unconstitutionally vague, the

Stanko majority explained that “Congress used the comparative term ‘similar’

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to modify ‘offenses,’ rather than saying ‘any other offenses’ or simply ‘other

offenses.’” Id. at 414. “The term ‘similar’ indicates an intent to limit the business

practices clause’s reach to offenses which are ‘comparable’ or ‘nearly

corresponding’ to the enumerated offenses.” Id. (citing W EBSTER’S T HIRD N EW

I NTERNATIONAL D ICTIONARY 2120 (2002)). Because “the general phrase ‘or other

similar offenses relating to the regulation of business practices’ refers back for

its meaning to the three types of offenses Congress specifically enumerated,” the

court concluded that “the plain meaning of the statute indicates Congress’s

intent to limit the offenses that fall within the § 921(a)(20)(A) exclusion to those

pertaining to antitrust violations, unfair trade practices, restraints of trade, or

offenses similar to them.” Id.

The Seventh Circuit in United States v. Schultz also rejected a vagueness

challenge to the “similar offenses” clause of § 921(a)(20). 586 F.3d at 531. The

Schultz court explained that:

According to its terms, § 921(a)(20)(A) excludes those “[f]ederal or

state offenses pertaining to antitrust violations, unfair trade

practices, restraints of trade, or other similar offenses relating to

the regulation of business practices.” In the final phrase, the word

“similar” limits the term “offenses,” so that it refers back to the

three enumerated offenses, and is further limited by “relating to the

regulation of business practices.” Accordingly, an ordinary

individual would have notice that the § 921(a)(20)(A) exception

applies only if he or she committed an enumerated or similar offense

related to the regulation of business practices.

Id.

Consistent with the reasoning of Stanko and Schultz, the business

practices exception is not unconstitutionally vague because it requires that the

excluded offenses be a specific type of business offense or similar to such specific

offenses relating to the regulation of business practices. “Antitrust law” is

“designed to protect trade and commerce from restraints, monopolies, price

fixing, and price discrimination.” B LACK’S L AW D ICTIONARY, 104 (8th ed. 2004).

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While it is “almost impossible to formulate an all inclusive definition of ‘unfair

trade practice’ . . . implicit in the term itself is the requirement that the practice

adversely affect either competitors or consumers . . . .” Stanko, 491 F.3d at 416.

Likewise, “restraint of trade” has a definite meaning at common law and

includes “contracts for the restriction or suppression of competition in the

market, agreements to fix prices, divide marketing territories, apportion

customers, restrict production and the like practices, which tend to raise prices

or otherwise take from buyers or consumers the advantages which accrue to

them from free competition in the market.” Apex Hosiery Co. v. Leader, 310 U.S.

469, 497 (1940).

These exempted offenses demonstrate that Congress intended to exclude

under § 921(a)(20)(A) only commercial crimes violating statutes designed to

prevent “an adverse economic effect on competition or consumers.” Dreher, 115

F.3d at 332. The elements test used to determine whether an offense falls within

the business practices exclusion is specific and overall gives fair warning as to

which offenses meet the definition of a “crime punishable by imprisonment for

a term exceeding one year” and which are excluded pursuant to the exception in

§ 921(a)(20)(A). We therefore affirm the district court’s conclusion that §

921(a)(20)(A) is not unconstitutionally vague.

C. U.S.S.G. § 2K2.1(b)(6) Enhancement

Finally, Coleman argues that the district court erred in assigning a four-

point increase to the offense level for “possession of a firearm in connection with

another felony offense.” The felony offense to which the court referred was

stalking under L A. R EV. S TAT. § 14:40.2, and Coleman claims there is insufficient

evidence in the record to support a finding that he possessed a firearm while

making any type of threat against the victim.

This court reviews the district court’s application of the Sentencing

Guidelines de novo and its factual findings for clear error. United States v.

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Delgado-Martinez, 564 F.3d 750, 751 (5th Cir. 2009). In determining whether a

Guidelines enhancement applies, the 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

district court’s determination of the relationship between the firearm and

another offense is a factual finding. United States v. Condren, 18 F.3d 1190,

1199-1200 (5th Cir. 1994). “A factual finding is clearly erroneous when the

reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. Cooper, 274

F.3d 230, 238 (5th Cir. 2001) (internal quotation marks and citation omitted). A

factual finding is not clearly erroneous if it is plausible in light of the record as

a whole. Id.

U.S.S.G. § 2K2.1(b)(6) provides that “[i]f the defendant used or possessed

any firearm or ammunition in connection with another felony offense . . .

increase by four levels.” The commentary to § 2K2.1(b)(6) states that the

enhancement applies where the firearm “facilitated, or had the potential of

facilitating,” the other felony offense. U.S.S.G. § 2K2.1(b)(6), cmt. n.14. Thus, to

obtain an enhancement under § 2K2.1(b)(6), the Government must establish by

a preponderance of the evidence “that the firearm ‘facilitated, or had the

potential of facilitating’ another felony offense and that the defendant used or

possessed the firearm in connection with that offense.” United States v.

Anderson, 559 F.3d 348, 357 (5th Cir. 2009).

L A. R EV. S TAT. 14:40.2(A) provides as follows:

Stalking is the intentional and repeated following or harassing of

another person that would cause a reasonable person to feel

alarmed or to suffer emotional distress. Stalking shall include, but

not be limited to the intentional and repeated uninvited presence of

the perpetrator at another person’s home . . . or any place which

would cause a reasonable person to be alarmed, or to suffer

emotional distress as a result of verbal or behaviorally implied

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threats of death, bodily injury, sexual assault, kidnapping, or any

other statutory criminal act to himself or any member of his family

or any person with whom he is acquainted.

Stalking is a felony offense if the defendant “is found . . . to have placed the

victim . . . in fear of death or bodily injury by the actual use of or the defendant’s

having in his possession during the instances which make up the crime of

stalking a dangerous weapon or is found . . . to have placed the victim in

reasonable fear of death or bodily injury.” L A. R EV. S TAT. § 14:40.2(B)(2)(a).

Louisiana defines “harassing” as “the repeated pattern of verbal communications

or nonverbal behavior without invitation which includes but is not limited to

making telephone calls, transmitting electronic mail, [or] sending messages via

a third party. . . .” L A. R EV. S TAT. § 14:40.2(C)(1).

At sentencing, East Carroll Parish Sheriff’s Deputy Brandon Wiltcher,

who was present at the time of Coleman’s arrest, testified that Manley made two

911 calls to request assistance and protection from Coleman. The first 911 call

informed authorities that Coleman had stated that he was on his way to

Manley’s residence to kill her, her granddaughter, and himself. She called a

second time shortly thereafter to report that Coleman was attempting to enter

the residence and was making verbal threats to kill Manley and her

granddaughter. When deputies arrived on the scene, Coleman was across the

street from the Manley residence and armed with a pistol carried in his

waistband. Deputy Wiltcher also testified that for three days Coleman had called

Manley’s home several times a day, making threats against her and her

granddaughter.4

4

In the sentencing context, a “district court may consider any relevant evidence

without regard to its admissibility under the rules of evidence applicable at trial, provided that

the information has sufficient indicia of reliability to support its probable accuracy.” United

States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996) (internal quotation marks and citation omitted).

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Coleman’s contention that he did not possess the gun “in connection with”

the felony stalking offense for purposes of § 2K2.1(b)(6) is without merit.

Regardless, at a minimum possession of the gun “had the potential of

facilitating” the felony stalking offense. See § 2K2.1(b)(6), cmt. n.14. Coleman

correctly notes that the deputies did not see him in possession of a firearm at the

time he made the threats to the Manleys that day and or on the previous days.

There was likewise no testimony that either of the victims saw him with a

weapon when he threatened them. However, the deputies arrived soon after the

second 911 call and found Coleman immediately across the street from the

Manley residence and armed. As the Government argues, it is logical to infer

and quite plausible that Coleman had the firearm with him only moments before

his arrest when he was attempting to enter the Manleys’ residence. Further,

Coleman had previously threatened to kill the Manleys and himself.

It is entirely reasonable to infer that Coleman intended to accomplish

these threats with the firearm in his possession at the time that he was arrested.

The district court’s finding of fact that Coleman possessed the firearm in

connection with the commission of another felony is therefore not clearly

erroneous and we affirm the four-point increase to Coleman’s offense level.

III. CONCLUSION

For the reasons discussed, we AFFIRM Coleman’s conviction and sentence.

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