United States v. David McDaniel ( 2020 )


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  •      Case: 19-50885      Document: 00515482093         Page: 1    Date Filed: 07/08/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT   United States Court of Appeals
    Fifth Circuit
    FILED
    July 8, 2020
    No. 19-50885
    Summary Calendar                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    DAVID MCDANIEL,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 1:19-CR-14-1
    Before HIGGINBOTHAM, HO and ENGELHARDT, Circuit Judges.
    PER CURIAM: *
    David     McDaniel      pleaded      guilty    to   conspiring     to    distribute
    methamphetamine and received a below-guidelines sentence to 188 months in
    prison and 3 years of supervised release. On appeal, he argues that the district
    court erred in applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)
    based on his possession of a handgun. McDaniel was arrested in a motel room
    in which officers found the gun in question, a piece of methamphetamine
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-50885     Document: 00515482093      Page: 2    Date Filed: 07/08/2020
    No. 19-50885
    weighing 6.1 grams, and methamphetamine and marijuana residue; police also
    found a small bag on McDaniel’s person containing various pills.
    A district court’s application of § 2D1.1(b)(1) is a factual finding reviewed
    for clear error, and a factual finding “is not clearly erroneous if it is plausible,
    considering the record as a whole.” United States v. Ruiz, 
    621 F.3d 390
    , 396
    (5th Cir. 2010). Section 2D1.1(b)(1) provides for a two-level enhancement if a
    firearm or other dangerous weapon “was possessed” during a drug trafficking
    offense. § 2D1.1(b)(1). We have held that for this enhancement to be applied,
    the Government must establish the defendant’s possession of a dangerous
    weapon by a preponderance of the evidence, which it may do by showing “that
    a temporal and spatial relation existed between the weapon, the drug
    trafficking activity, and the defendant.” United States v. King, 
    773 F.3d 48
    , 53
    (5th Cir. 2014) (internal quotation marks and citation omitted). “Under this
    standard, the Government must show that the weapon was found in the same
    location where drugs or drug paraphernalia are stored or where part of the
    transaction occurred.” United States v. Romans, 
    823 F.3d 299
    , 317 (5th Cir.
    2016) (internal quotation marks and citation omitted). If the Government
    carries this burden, the defendant can avoid the enhancement only by showing
    it is “clearly improbable that the weapon was connected with the offense.”
    Id. (internal quotation
    marks and citation omitted).
    McDaniel does not dispute that he was found in possession of both
    methamphetamine and a firearm during the time the conspiracy was
    operative. Although the quantity of the methamphetamine may have been
    consistent with personal use, as McDaniel argues, he has not shown that this
    is inherently problematic under our caselaw. Cf. United States v. Akins, 
    746 F.3d 590
    , 610 (5th Cir. 2014). Nor are we convinced that to associate the gun
    with his offense is implausible under the circumstances.             As McDaniel
    2
    Case: 19-50885    Document: 00515482093    Page: 3   Date Filed: 07/08/2020
    No. 19-50885
    produced no rebuttal evidence showing that such an association is clearly
    improbable, we accordingly conclude that the district court did not clearly err
    by applying the enhancement.
    AFFIRMED.
    3
    

Document Info

Docket Number: 19-50885

Filed Date: 7/8/2020

Precedential Status: Non-Precedential

Modified Date: 7/9/2020