United States v. Jessie

United States Court of Appeals
for the Fifth Circuit

No. 19-10824

United States of America,

Plaintiff—Appellee,

versus

Corry Jessie,

Defendant—Appellant.

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-444-1

Before Higginbotham, Jones, and Higginson, Circuit Judges.
Per Curiam:*
Corry Jessie pleaded guilty to two counts of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to a total
of 55 months in prison. Jessie argues that the district court clearly erred in
increasing his offense level by four levels under U.S.S.G. § 2K2.1(b)(6)(B)
and by two levels under § 2K2.1(b)(1)(A).

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
October 16, 2020

Lyle W. Cayce
Clerk
Case: 19-10824 Document: 00515604588 Page: 1 Date Filed: 10/16/2020

No. 19-10824
2
The district court applied the four-level increase after finding that
Jessie’s January 2017 offense, being a felon in possession of a firearm in
connection with the felony offense of aggravated assault with a deadly
weapon, constituted relevant conduct with respect to his offenses of
conviction, which occurred in June and November 2017, because all of the
offenses were part of the same course of conduct. The district court applied
the two-level increase after finding that Jessie possessed three firearms,
which included the firearm used in the January 2017 offense.
In determining whether the Guidelines at issue apply, the district
court must consider the offenses of conviction as well as relevant conduct,
which includes conduct that was part of “the same course of conduct,” such
as an “ongoing series of offenses.” U.S.S.G. § 1B1.3(a)(2); § 1B1.3,
comment. (n.5(B)(ii)); § 2K2.1, comment. (n.14(E)); see United States v.
Rhine, 583 F.3d 878, 886 (5th Cir. 2009). Relevant course-of-conduct factors
are “the degree of similarity of the offenses, the regularity (repetitions) of the
offenses, and the time interval between the offenses.” § 1B1.3, comment.
(n.5(B)(ii)); see Rhine, 583 F.3d at 886. With respect to the four-level
increase, we review the district court’s application of the Guidelines de novo
and its factual findings for clear error. See United States v. Brummett, 355 F.3d
343, 344 (5th Cir. 2003). With respect to the two-level increase, we review
for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Jessie argues that the January 2017 offense does not constitute
relevant conduct because, when compared to the offenses of conviction, it
was not similar, regular, or temporally proximate. He contends that the
district court relied too heavily on general similarities—the unlawful
possession of firearms in or near a vehicle—without regard to the more
specific differences—the types of firearms, the occupants of the vehicles, and
the nature of the underlying offense conduct, including the context in which
it occurred.
Case: 19-10824 Document: 00515604588 Page: 2 Date Filed: 10/16/2020

No. 19-10824
3
Jessie’s three unlawful possession offenses occurred over a period of
10 months, creating a pattern that was similar and regular. The district court
did not clearly err in concluding that Jessie’s unlawful firearm possession in
January 2017, which occurred in connection with another felony offense,
constituted relevant conduct because it was part of his ongoing series of
illegal firearm possessions over the course of 10 months. See Brummett,
355 F.3d at 345; U.S.S.G. § 2K2.1(b)(6)(B), comment. (n.14(E)(ii)). The
case law Jessie cites to distinguish Brummett concerns drug-related crimes.
This court has already rejected that line of reasoning in an unpublished
opinion. See United States v. Brown, 783 F. App’x 330, 333 n.3 (5th Cir.
2019), cert. denied, 140 S. Ct. 1136 (2020) (“We acknowledge that in defining
similar conduct in some drug cases this court has required that the allegedly
similar conduct involve more than the mere presence of the same drug. . . .
But drug cases are analogically distinct from felon-in-possession cases where
the elements of the underlying offense are simply being a convicted felon in
possession of a firearm.”). Brummett controls.
In light of the foregoing, the district court did not clearly err in
applying the four-level increase under § 2K2.1(b)(6)(B). Id. It also did not
plainly err in applying the two-level increase under § 2K2.1(b)(1)(A) after
finding that Jessie possessed three firearms, including the firearm in the
January 2017 relevant conduct offense.
AFFIRMED.
Case: 19-10824 Document: 00515604588 Page: 3 Date Filed: 10/16/2020