United States v. Avila ( 2022 )

Case: 22-50088 Document: 00516586382 Page: 1 Date Filed: 12/21/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 21, 2022
No. 22-50088 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Samuel Jesus Avila,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-280-1
Before Jones, Smith, and Graves, Circuit Judges.
Per Curiam:*
Samuel Avila pled guilty to receipt of a firearm while under
indictment, in violation of 18 U.S.C. § 922(n). On appeal, he challenges the
constitutionality of that statute. He also raises three challenges to the district
court’s application of three sentencing enhancements. All but one of these
*
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opinion should not be published and is not precedent except under the limited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.
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No. 22-50088
arguments is raised for the first time on appeal, and all of them fail. We
AFFIRM.
I.
In August 2021, the police received a tip that Avila was distributing
narcotics and possessed a firearm used in a murder. Avila had previously
been arrested and indicted for armed burglary. He pled guilty to the burglary
and was sentenced to an eight-year probation, adjudication deferred.
Soon after receiving the tip, officers detained Avila along with three
other individuals. The four men had been seen smoking marijuana and then
driving a car registered to one of Avila’s family members. In plain view inside
the car, the officers saw two firearms. The police obtained a search warrant
for the car and found 1.05 ounces of marijuana, a digital scale, a Glock with a
31-round magazine, two stolen Smith & Wesson guns, and a stolen American
Tactical AR-15.
The defendant admitted possessing the Glock, the marijuana, and the
digital scale. He was charged with, and pled guilty to, receipt of the Glock
while under indictment in violation of 18 U.S.C. § 922(n).
The presentence report (PSR) recommended enhancements,
(1) because the offense involved three or more firearms, U.S.S.G.
§ 2K2.1(b)(1)(A); (2) because at least one of the firearms was stolen,
U.S.S.G. § 2K2.1(b)(4); and (3) because the firearm was possessed in
connection with another felony offense—in this case, drug trafficking--
U.S.S.G. § 2K2.1(b)(6)(B).
The district court adopted the PSR in full. The defendant appealed.
II.
We address each of Avila’s contentions in turn. First, because the
defendant did not challenge the constitutionality of § 922(n) at trial, this
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court reviews the decision below for plain error. FED. R. CRIM. P. 52(b). To
show plain error, the defendant must demonstrate “(1) that an error
occurred; (2) that the error was plain, which means clear or obvious; (3) that
the plain error would affect his substantial rights; and (4) that not correcting
the error would seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Stockman, 947 F.3d 253, 259 (5th
Cir.), cert. denied, 141 S. Ct. 369 (2020) (brackets omitted). The parties focus
their arguments on the second prong.
An error is only “plain” if there is no room for reasonable dispute.
United States v. Ramirez, 37 F.4th 233, 235 (5th Cir. 2022). It follows that a
“lack of binding authority is often dispositive in the plain-error context.”
United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). “Even where
the argument requires only extending authoritative precedent, the failure of
the district court to do so cannot be plain error.” United States v. Evans,
587 F.3d 667, 671 (5th Cir. 2009). And “when any analogy to existing
authority would be strained, the district court’s actions cannot amount to
plain error.” Stockman, 947 F.3d at 260.
The defendant has failed to meet this standard. There is no binding
precedent holding § 922(n) unconstitutional. Instead, the defendant urges
this court to extend the decision in New York State Rifle & Pistol Association,
Inc. v. Bruen, 142 S. Ct. 2111 (2022) to an entirely new context—
Section 922(n). To do so, this court would have to (a) survey the historical
pedigree of similar laws and (b) adopt the defendant’s interpretation of that
history, thereby disagreeing with several other federal courts that confronted
this issue post-Bruen. See, e.g., United States v. Perez-Garcia, 2022 WL
4351967, at *7 (S.D. Cal. Sept. 18, 2022) (“the Nation’s historical tradition
supports such targeted regulations” as § 922(n)); United States v. Kays,
2022 WL 3718519, at *5 (W.D. Okla. Aug. 29, 2022) (finding that there are
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“proper historical analogues for § 922(n)”). All of this can be appropriate
on de novo review. It is not consonant with a finding of plain error.
The parties agree that plain error review applies to the multiple-
firearm enhancement. That enhancement applies “if the offense involved
three or more firearms[.]” U.S.S.G. § 2K2.1(b)(1)(A). The commentary
counsels courts to “count only those firearms that were . . . unlawfully
possessed.” U.S.S.G. § 2K2.1, app. n. 5.
Because the defendant has only admitted that he received the Glock
while under indictment, he argues that the government never showed that
his possession of the other guns in the car was unlawful. After all, § 922(n)
does not bar the possession of weapons while under indictment, only their
shipment, transport, or receipt.
Yet the record corroborates the enhancement. While possession and
receipt are not equivalent, a finding of possession can support a finding of
receipt. United States v. Solomon, 29 F.3d 961, 964 (5th Cir. 1994). True, “a
felon may possess a firearm without having ‘received’ it; he may have
manufactured the gun himself.” Ball v. United States, 470 U.S. 856, 862,
105 S. Ct. 1668, 1672 & n.9 (1985). But the firearms in the backseat were
made by American Tactical and Smith & Wesson, not the defendant. Thus,
he must have received them at some point.
Moreover, there is good reason to believe the receipt occurred after
indictment. The defendant was arrested in August 2020 for armed burglary,
at which point it is likely that any guns in the defendant’s possession would
have been taken. He was indicted the next month. And the defendant’s
admission that he received the Glock after his indictment supports the
proposition that he continued acquiring firearms during this time. In sum, it
was not plain error for the district court to conclude, on the preponderance
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of the evidence, that the defendant unlawfully received firearms while under
indictment.
Next, plain error review applies to the stolen-firearm enhancement,
U.S.S.G. § 2K2.1(b)(4), imposed because all three of the guns found in the
backseat were stolen. The defendant asserts that, because he was not subject
to the multiple-firearms enhancement, he was not responsible for the stolen
guns in the backseat of the car. And since the Glock was not stolen, the
district court erred by enhancing his sentence.
This argument fails for two reasons. First, the district court correctly
imposed the multiple-firearms enhancement. Second, even if it erred, the
stolen-firearms enhancement does not share the multiple-firearms
enhancement’s requirement of unlawful possession. The stolen firearm
enhancement applies if any firearm was stolen. U.S.S.G. § 2K2.1(b)(4).
Therefore, even if the defendant had lawfully possessed the stolen firearms,
the enhancement would still apply. Consequently, the district court’s
application of the enhancement was not wrong, much less plain error.
Guideline § 2K2.1(b)(6)(B) imposes a four-level increase if the
defendant “used or possessed any firearm . . . in connection with another
felony offense.” “Another felony” here means “any federal, state, or local
offense . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction
obtained.” U.S.S.G. § 2K2.1, app. n. 14(C). This enhancement is
automatically applied where the “other felony” is drug trafficking and the
gun is found in proximity to drugs, drug-manufacturing materials, or drug
paraphernalia. U.S.S.G. § 2K2.1, app. n. 14(B).
A “determination that a firearm was used or possessed in connection
with another felony offense for purposes of U.S.S.G. § 2K2.1(b)(6)(B) is a
factual finding that is reviewed for clear error.” United States v. Bass,
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996 F.3d 729, 742 (5th Cir. 2021). Therefore, the court should affirm if the
decision below “is plausible in light of the whole record.” United States v.
Blanco, 27 F.4th 375, 382 (5th Cir. 2022).
In light of the whole record, it was plausible to conclude that the
defendant had engaged in drug trafficking. Several facts support the
conclusion. First is the presence in the car of a digital scale. As the district
court stated, while it may be that “people use digital scales for personal use
sometimes . . . they certainly use [them] for distribution.” Second is the tip
that the defendant was involved in drug trafficking. While an unverified tip
is not sufficient evidence of criminal behavior by itself, the tip here
corresponds with the other evidence. This court has inferred drug trafficking
from similar fact patterns in the past. United States v. Sharp, 6 F.4th 573, 579
(5th Cir. 2021), cert. denied, 142 S. Ct. 1124 (2022) (“The presence of these
guns and drug distribution materials [such as a digital scale] allowed the jury
to infer an intent to distribute even if the quantities were consistent with
personal use.”) See also United States v. Kates, 174 F.3d 580, 582 (5th Cir.
1999) (noting that evidence “such as drug paraphernalia, guns, or large
quantities of cash” may support an intent to distribute). Finally, defendant’s
possession of four guns is suggestive of drug trafficking. United States v.
Cooper, 979 F.3d 1084, 1090 (5th Cir. 2020) (“firearms are common ‘tools of
the trade’ of drug trafficking”), cert. denied, 141 S. Ct. 1715 (2021). At
minimum, these circumstances indicate that the district court’s decision was
not clearly erroneous.
The judgment of conviction and sentence is AFFIRMED.
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