United States v. Lands

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30931
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL K. LANDS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CR-25-ALL
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Michael K. Lands appeals his sentence following his guilty
plea conviction for one charge of being a convicted felon in
possession of a firearm. Lands argues that the district court
erred by assessing an adjustment to his base offense level in
accordance with U.S.S.G. § 2K2.1(b)(5). Lands contends that the
§ 2K2.1(b)(5) adjustment was inappropriate because the discharge
offense is subsumed within his conviction for being a felon in
possession of a firearm. Because this precise argument was not
raised in the district court, it is reviewed for plain error

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No. 05-30931
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only. See United States v. Villegas, 404 F.3d 355, 362-63 (5th
Cir. 2005). Lands’s argument concerning the disputed adjustment
is unavailing. The adjustment was based on Lands’s act of
discharging a firearm. This act is distinct from his underlying
offense of possessing a firearm and provides a proper basis for
the adjustment. See United States v. Outley, 348 F.3d 476,
477-78 (5th Cir. 2003).
Lands argues that the district court erred by departing
upwardly at sentencing and imposing the statutory maximum term of
imprisonment. Our review of the record shows that the district
court’s choice to depart was properly based on Lands’s
substantial criminal history as well as his propensity towards
violence, his obstruction of justice, and his risk of recidivism.
See U.S.S.G. § 4A1.3; see also United States v. Simkanin, 420
F.3d 397, 418 (5th Cir. 2005), cert. denied, 126 S. Ct. 1911
(2006); United States v. Ismoila, 100 F.3d 380, 397-98 (5th Cir.
1996); United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir.
1995). There is likewise no error in connection with the extent
of the departure. See Simkanin, 420 F.3d at 419; see also United
States v. Smith, 417 F.3d 483, 491 (5th Cir.), cert. denied, 126
S. Ct. 713 (2005).
The judgment of the district court is AFFIRMED.

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