United States v. Pettry

* 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this opinion should not be published and is not precedent except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
December 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40599
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
versus
EMORY ALLAN PETTRY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-43-RAS-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Emory Allen Pettry appeals his sentence following a guilty
plea conviction for possession of a controlled substance with
intent to distribute, using and carrying a firearm during and in
relation to a drug trafficking crime, and manufacturing an
unregistered firearm. Pettry argues that the district court
misapplied the Sentencing Guidelines by enhancing his offense
level for manufacturing an unregistered firearm on the basis that
Pettry manufactured the firearm in connection with another felony

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No. 04-40599
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offense. Pettry argues that the sentence enhancement is
erroneous in light of U.S.S.G. § 2K2.4, comment. (n.4), because
his sentence for manufacturing a firearm is to be served
consecutively to his sentence for using and carrying a firearm
during and in relation to a drug trafficking crime.
Pettry’s sentence for manufacturing an unregistered firearm
was not enhanced based on his use of a firearm, but because he
manufactured the device in connection with the felony offense of
manufacturing methamphetamine. Accordingly, we find no error in
the district court’s sentencing determination. United States v.
Washington, 340 F.3d 222, 230-31 (5th Cir.), cert. denied, 124 S.
Ct. 942 (2003).
AFFIRMED.

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