Summary Calendar UNITED STATES OF AMERICA v. Solomon Appiah

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 This case applies the 2005 version of the Sentencing Guidelines. This provision has
since been redesignated as U.S.S.G. § 2K2.1(b)(6).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20754
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SOLOMON APPIAH
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-15-ALL
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Solomon Appiah appeals his sentence following his guilty plea conviction
for possession of a firearm by a convicted felon. Appiah argues that the district
court erred by applying an enhancement pursuant to U.S.S.G. § 2K2.1(b)(5)
(2005)1 for his using or possessing a firearm in connection with another felony
offense or possessing or transferring a firearm with knowledge, intent, or reason
United States Court of Appeals
Fifth Circuit
F I L E D
June 26, 2008
Charles R. Fulbruge III
Clerk

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No. 06-20754
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to believe it would be used in connection with another felony offense. He asserts
that there was insufficient evidence that he was involved in the September 13,
2005, shooting that the district court used to support the enhancement.
The presentence report (PSR) contained three statements from the victim
of the September 13, 2005, shooting. While the statements were not consistent
with each other and the victim was a felon with an admitted bias against
Appiah, all three statements implicated Appiah, and ballistics evidence
confirmed that the victim was shot with the firearm Appiah pleaded guilty to
possessing. Appiah did not present any evidence to rebut the facts stated in the
PSR. It is the defendant’s burden to show that the information in the PSR is
materially untrue, United States v. Betancourt, 422 F.3d 240, 248 (5th Cir.
2005), and absent rebuttal evidence, the district court is entitled to rely on the
facts stated in the PSR. United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th
Cir. 2005). As the district court’s factual determination was not implausible in
light of the record as a whole, Appiah has not shown that the district court
clearly erred by applying the enhancement. See United States v. Caldwell, 448
F.3d 287, 290 (5th Cir. 2006).
Appiah argues that the district court clearly erred by applying the
§ 2K2.1(b)(5) enhancement because the other felony offense found by the district
court did not have a sufficient temporal relationship with the offense of
conviction. Because Appiah did not raise this challenge below, we review for
plain error. See United States v. Puckett, 505 F.3d 377, 383-86 (5th Cir. 2007),
petition for cert. filed (Mar. 3, 2008) (No. 07-9712).
Appiah’s offense of conviction was the possession of a firearm on October
29, 2005. The district court applied the § 2K2.1(b)(5) enhancement based upon
Appiah’s involvement in a shooting with the same firearm on September 13,
2005. As Appiah’s involvement in the September 13, 2005, shooting involved his
illegal possession of the firearm on September 13, 2005, the issue before us is -
whether Appiah’s possession of the firearm on September 13, 2005, was relevant

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No. 06-20754
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conduct as to the offense of conviction. See United States v. Brummett, 355 F.3d
343, 344-45 (5th Cir. 2003).
The district court was not required to make findings regarding relevant
conduct because Appiah did not raise this issue below. See United States v. Ruiz,
43 F.3d 985, 989-92 (5th Cir. 1995), overruled on other grounds by United States
v. Doggett, 230 F.3d 160, 163-64 (5th Cir. 2000). Appiah’s assertion that the
enhancement was improper because the September 13, 2005, shooting, itself was
not relevant conduct is without merit. See United States v. Outley, 348 F.3d 476,
477-78 (5th Cir. 2003).
The district court found that Appiah possessed the same firearm on two
occasions over the course of less than two months. Appiah’s “pattern of behavior
of possessing firearms was similar and regular, and the time period between the
offenses permits a conclusion that the firearms possessions were part of an
ongoing series of offenses.” Brummett, 355 F.3d at 345. Accordingly, his
possession of the firearm on September 13, 2005, was relevant conduct. See id.
Appiah has not shown that the district court committed error, plain or
otherwise, by applying the § 2K2.1(b)(5) enhancement. See id. at 344-45.
Appiah argues that his sentence was unreasonable because the district
court improperly considered his employment history and commented on his prior
convictions. Because Appiah did not argue that his sentence was unreasonable
below, we review this issue for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-8978).
The district court sentenced Appiah within the properly calculated
guidelines range. Accordingly, the sentence is presumptively reasonable. See
United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Appiah has not
rebutted the presumption of reasonableness or shown that the sentence was
plainly erroneous. See id.; Gall v. United States, 128 S. Ct. 586, 597 (2007).
AFFIRMED.

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