Filed: Sep. 09, 2020
Latest Update: Sep. 09, 2020
Summary: Case: 19-51038 Document: 00515557109 Page: 1 Date Filed: 09/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-51038 September 9, 2020 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus James Leroy McMillion, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 6:18-CR-283-16 Before Jones, Barksdale, and Stewart, Circuit Judges. Per Cu
Summary: Case: 19-51038 Document: 00515557109 Page: 1 Date Filed: 09/09/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 19-51038 September 9, 2020 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus James Leroy McMillion, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 6:18-CR-283-16 Before Jones, Barksdale, and Stewart, Circuit Judges. Per Cur..
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Case: 19-51038 Document: 00515557109 Page: 1 Date Filed: 09/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-51038 September 9, 2020
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
James Leroy McMillion,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-283-16
Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
James Leroy McMillion pleaded guilty to one count of conspiracy to
possess, with intent to distribute, 50 grams or more of methamphetamine, in
*
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not be published and is not precedent except under the limited circumstances set forth in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: 19-51038 Document: 00515557109 Page: 2 Date Filed: 09/09/2020
No. 19-51038
violation of 21 U.S.C. § 846, and one count of distribution of 50 grams or
more of methamphetamine, in violation of § 841(a)(1). He was sentenced to,
inter alia, 87-months’ imprisonment.
McMillion challenges the district court’s application of the
dangerous-weapon enhancement under Sentencing Guideline § 2D1.1 (b)(1);
contends the court failed to rule on a disputed factual finding, as required by
Federal Rule of Criminal Procedure 32(i)(3)(B), when it overruled his
objection to the enhancement; and maintains the court improperly shifted
the burden of proof and pressured him into waiving his objection to the
quantity-of-drug estimate, violating his right to due process. His claims fail.
Although post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard.
Id. at 51; United States v. Delgado-
Martinez,
564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
The court’s determination that the Guideline § 2D1.1(b)(1)
enhancement applies is a factual finding and is, therefore, reviewed only for
clear error. United States v. Romans, 823 F.3d 299, 317 (5th Cir. 2016).
Section 2D1.1(b)(1) provides for a two-level enhancement “[i]f a dangerous
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No. 19-51038
weapon (including a firearm) was possessed” during a drug-trafficking
offense. The Government must establish possession of a weapon within the
meaning of § 2D1.1(b)(1) by a preponderance of the evidence—which it may
do by showing “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).
If the Government carries this burden, defendant can avoid the enhancement
only by showing it is “clearly improbable that the weapon was connected with
the offense”.
Romans, 823 F.3d at 317 (internal quotation marks and citation
omitted).
A Special Agent’s testimony established McMillion used his RV to
conduct drug transactions and acquired at least one firearm as collateral for
such a transaction. The Agent testified that this firearm, as well as another
firearm and drugs, were stolen from the RV and that, pursuant to intercepts,
McMillion “referenced frequently going back and forth” to the vehicle on
the day it was burglarized. Based on these facts, the court reasonably inferred
the firearms and drugs were stored in proximity of each other, as well as in a
place McMillion performed drug activity. See King, 773 F.3d at 52–53
(applying enhancement because drugs and firearm were stored in the same
residence).
McMillion’s contention that the firearms may have been inoperable
or locked in a safe does not satisfy his burden of rebutting the Government’s
evidence. See United States v. Rodriguez, 62 F.3d 723, 724–25 (5th Cir. 1995)
(“That the weapon was not brandished and was unloaded does not negate a
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No. 19-51038
finding of possession under § 2D1.1(b)(1). The dispositive factor is the
accessibility of the weapon to the defendant.”) (citations omitted); United
States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990) (noting the inoperable
character of a gun is not dispositive). The court did not clearly err in applying
the § 2D1.1(b)(1) enhancement.
Because McMillion did not raise his Rule 32 and due-process claims
in district court, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, McMillion must
show a forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States,
556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct such reversible plain error, but generally should do so
only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”.
Id.
Regarding Rule 32, the court did not commit the requisite clear or
obvious error in overruling McMillion’s objection to the dangerous-weapon
enhancement. Rule 32(i)(3)(B) requires the court to make findings regarding
disputed factual issues that affect sentencing. Fed. R. Crim. P. 32(i)(3)(B).
A court may make implicit findings through adopting the presentence
investigation report (PSR), which “operate[s] to satisfy the mandates of Rule
32 when the findings in the PSR are so clear that the reviewing court is not
left to ‘second-guess’ the basis for the sentencing decision”. United States v.
Carreon,
11 F.3d 1225, 1231 (5th Cir. 1994). Application of the dangerous-
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No. 19-51038
weapon enhancement is supported by the PSR and the Agent’s testimony;
we have no basis to second-guess the court’s sentencing decision.
McMillion’s due-process claim similarly fails. McMillion had the
burden to rebut the PSR with respect to the quantity-of-drug estimate; the
district court did not improperly shift the burden to him in violation of his
due-process rights. See United States v. Zuniga, 720 F.3d 587, 591 (5th Cir.
2013). McMillion’s assertion that the court attempted to coerce him into
withdrawing his objection is also not supported by the record. Accordingly,
there is no clear or obvious error.
AFFIRMED.
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