United States v. Myers ( 2021 )

Case: 20-50570 Document: 00515998172 Page: 1 Date Filed: 08/27/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 27, 2021
No. 20-50570 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kyle Leroy Myers,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-10-1
Before Stewart, Ho, and Engelhardt, Circuit Judges.
Per Curiam:*
Kyle Leroy Myers appeals the 365-month within-guidelines sentence
imposed by the district court following his guilty plea convictions of
conspiracy to possess with intent to distribute 50 grams or more of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and
possession with intent to distribute 50 grams or more of actual
*
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opinion should not be published and is not precedent except under the limited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. 20-50570
methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Myers
challenges the district court’s drug quantity determination and its application
of a firearm enhancement under U.S.S.G. § 2D1.1(b)(1). He also argues that
his sentence is substantively unreasonable. Because Myers has failed to show
that the district court committed procedural or substantive error in imposing
his sentence, we AFFIRM.
I. Facts & Procedural Background
On December 12, 2019, law enforcement observed a vehicle occupied
by three individuals arrive at a residence that was believed to be involved in
the trafficking of methamphetamine. Officers later conducted a traffic stop
of the vehicle. While retrieving a jacket from the vehicle for the driver, an
officer observed a loaded pistol on the rear passenger floorboard. During a
subsequent search of the vehicle, officers located a purse in the front
passenger side of the vehicle where one of the occupants, Tiffany Sutton, had
been seated. The purse contained approximately 18.5 grams of heroin and
15.6 grams of methamphetamine. Sutton claimed ownership of the purse but
denied owning the drugs inside. She was arrested and remains in federal
custody today.
After additional investigation, law enforcement learned that Sutton
received the heroin and methamphetamine from her roommate, Kyle Myers,
who resided in a recreational vehicle (“RV”) in Odessa, Texas. Officers
obtained and executed a search warrant of the RV on December 13, 2019.
During the search of the RV, Myers was detained along with another person
inside, Brandy Dean. The search resulted in the seizure of approximately
1,290 grams of methamphetamine, 521 grams of heroin, a pistol, ammunition,
and $21,456 in currency. Officers also recovered packaging materials, digital
scales, and detailed ledgers of drug transactions. Myers was arrested and
remains in federal custody today.
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After Sutton was arrested, she pled guilty to one count of conspiracy
to possess with intent to distribute 50 grams or more of actual
methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and one count
of possession with intent to distribute five grams or more of actual
methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court
imposed a two-level dangerous weapon enhancement pursuant to
U.S.S.G. § 2D1.1(b)(1) for the pistol found on the floorboard of the vehicle
subjected to the December 12th traffic stop and sentenced Sutton at the
bottom of the guidelines range to concurrent terms of 168 months’
imprisonment, to be followed by concurrent five-year terms of supervised
release. Thereafter, she appealed her sentence urging error with respect to
the dangerous weapon enhancement and other related sentencing issues. See
No. 20-50597, United States v. Sutton, 2021 WL 3276524, at *1 (5th Cir. July
30, 2021). A panel of this court has now vacated the district court’s
imposition of the dangerous weapon enhancement to Sutton’s sentence and
remanded for resentencing. Id. at *4.
At Myers’s rearraignment, the Government orally set forth his factual
basis using the factual resume that Sutton had previously signed and
submitted in support of her guilty plea. Myers denied knowledge of the pistol
and heroin and stated that he possessed only eight ounces of
methamphetamine. The district court explained that Myers was only
pleading guilty to possession with intent to distribute and conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine but
advised him that the guns and heroin could affect his guidelines calculations.
Myers then pled guilty.
The information in the offense conduct section of Myers’s
presentence report (“PSR”) aligned with the information that was set forth
in Sutton’s factual resume. The PSR noted Myers’s interview with law
enforcement where he admitted to obtaining drugs and storing them in his
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RV, denied selling drugs other than methamphetamine, and stated that
Sutton sold drugs but not for him. The probation officer converted the
$21,456 in currency that was found in Myers’s residence to 2.5 kilograms of
actual methamphetamine. The PSR held Myers accountable for 76,600.26
kilograms of converted drug weight, resulting in a base offense level of 36.
The PSR assessed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for
possession of a firearm during his drug trafficking offenses and applied a
three-level reduction for acceptance of responsibility. Myers’s total offense
level of 35 and criminal history category of VI yielded a guidelines range of
292 to 365 months’ imprisonment.
Myers objected to the drug quantity calculations and firearm
enhancement. In response, the probation officer prepared an addendum that
recommended denying Myers’s objections because the district court could
consider his relevant conduct under U.S.S.G. § 1B1.3(a)(1)-(2). This
included reasonably foreseeable acts of a coconspirator subject to the
limitations set forth in the Guidelines and information in the PSR that had
been obtained from investigative reports, Sutton’s factual resume, and
Myers’s oral factual basis. Myers renewed his objections at sentencing and
the district court overruled them. It then found that the PSR was accurate
and adopted it. The district court denied Myers’s request for a downward
variance and sentenced him to concurrent terms of 365 months’
imprisonment and concurrent five-year terms of supervised release. Myers
filed this appeal.
II. Standard of Review
We engage in a bifurcated review of the sentence imposed by a district
court. See Gall v. United States, 552 U.S. 38, 51 (2007). We first consider
whether the district court committed a “‘significant procedural error,’ such
as miscalculating the advisory Guidelines range.” United States v. Odom, 694
4
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F.3d 544, 547 (5th Cir. 2012) (citation omitted). If there is no procedural
error, or if any such error is harmless, “this court may proceed to the second
step and review the substantive reasonableness of the sentence imposed for
an abuse of discretion.” Id.For preserved claims of procedural error, we review the district
court’s application of the Sentencing Guidelines de novo and its factual
findings for clear error. See United States v. Gomez-Alvarez, 781 F.3d 787, 791
(5th Cir. 2015). “[I]n determining whether an enhancement applies, a district
court is permitted to draw reasonable inferences from the facts, and these
inferences are fact-findings reviewed for clear error as well.” United States v.
Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014) (internal quotation marks
and citation omitted). A factual finding is not clearly erroneous if it is
plausible given the entire record, even if the reviewing court “would have
weighed the evidence differently and made a different finding.” United States
v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (internal quotation marks and
citation omitted). Conversely, a factual-finding is clearly erroneous if the
court’s “review of all the evidence leaves [it] with the definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks
and citation omitted).
A district court may adopt the facts in a PSR without additional
inquiry “if those facts have an adequate evidentiary basis with sufficient
indicia of reliability and the defendant does not present rebuttal evidence or
otherwise demonstrate that the information in the PSR is unreliable.” United
States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007) (internal quotation marks
and citation omitted). The defendant has the burden to demonstrate that the
PSR’s information is “materially untrue, inaccurate, or unreliable.” United
States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citation omitted). “Mere
objections to such supported facts are generally insufficient.” Id.5
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III. Discussion
On appeal Myers argues that: (1) the district court reversibly erred in
its calculation of the drug quantity attributed to him, (2) the district court
reversibly erred in imposing a firearm enhancement under U.S.S.G.
§ 2D1.1(b)(1), and (3) the sentence imposed is substantively unreasonable.
We address each argument in turn.
A. Drug Quantity
Myers first argues that the district court erred in calculating the drug
quantities attributed to him. We disagree. The district court’s drug quantity
determinations, including its determination that the currency represented
drug proceeds, are factual findings that we review for clear error when
preserved. 1 United States v. Barry, 978 F.3d 214, 218 (5th Cir. 2020). When a
defendant is convicted of a drug-trafficking crime, his base offense level is
determined by the quantity and type of drugs involved in the offense. See
United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009);
U.S.S.G. § 2D1.1(a)(5), (c). “[T]he base offense level can reflect quantities
of drugs not specified in the count of conviction if they were” derived from
relevant conduct, Rhine, 583 F.3d at 885, meaning they were “part of the
same course of conduct or common scheme or plan as the offense of
conviction.” U.S.S.G. § 1B1.3(a)(1)-(2).
“Where there is no drug seizure or the amount seized does not reflect
the scale of the offense, the court shall approximate the quantity of the
controlled substance.” Id. at § 2D1.1, comment. (n.5). The district court may
extrapolate drug “quantity from any information that has sufficient indicia of
reliability to support its probable accuracy,” including a law enforcement
1
Myers objected to paragraph 8 of the PSR holding him responsible for 76,600
kilograms of converted drug weight, thus preserving this error for appellate review.
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agent’s approximation and hearsay evidence. United States v. Valdez, 453
F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted).
As relevant here, the district court may convert cash into drug quantities
based upon a determination that the cash represented proceeds of drug
transactions. See United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997);
see also U.S.S.G. § 2D1.1, comment. (n.5) (noting that, in approximating the
drug quantity, the court may consider the price generally obtained for the
controlled substance, as well as financial and other records). Factors to be
considered in determining whether cash represented proceeds of drug
transactions include that the denominations of cash were consistent with
drug sales, that the defendant had presented an incredible explanation for
possession of the currency, and that the defendant was unemployed with no
apparent source of legal income. United States v. Fitzgerald, 89 F.3d 218, 223–
24 (5th Cir. 1996).
Here, the information in the PSR was based on sufficiently reliable
evidence for the district court to conclude that Myers was supplying Sutton
with methamphetamine and heroin, and that they lived together in an RV. 2
This information was included in Sutton’s factual resume and she swore
under oath that the information in it was true. See United States v. Rico, 864
F.3d 381, 384–86 (5th Cir. 2017) (noting that the PSR and addendum
established that the challenged information was provided by a coconspirator
and “[s]tatements by coconspirators are sufficiently reliable to form the basis
of a finding”). Moreover, Myers has failed to present reliable evidence
2
In his reply brief, Myers challenges the Government’s assertion that his and
Sutton’s residence was an RV. However, he did not argue in the district court that his
residence was not an RV and his defense counsel referred to the residence as a trailer
multiple times during sentencing. Accordingly, the information before the district court
was sufficient to establish that Myers’s residence was an RV.
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establishing that the information in the PSR and Sutton’s sworn testimony
were “materially untrue, inaccurate, or unreliable.” Harris, 702 F.3d at 230.
As stated, the RV contained $21,456 in cash, distribution quantities of
methamphetamine and heroin, drug packaging materials, ledgers
documenting drug sales, a loaded firearm, and ammunition. Myers does not
identify a plausible legal explanation for his or Sutton’s individual or joint
possession of such a large sum of cash. 3 Although Myers implies that the
currency may have belonged to Dean, 4 he provides no evidence that she
resided in the RV with him and Sutton and proffers no legitimate reason for
her to carry such a large amount of cash. See Barry, 978 F.3d at 218–19. Based
on the foregoing evidence, the district court could have plausibly inferred
that the cash constituted drug proceeds and that the amount of drugs seized
did not sufficiently reflect the scope of the conspiracy. Id. at 218.
Accordingly, we hold that the district court did not err in calculating the drug
quantities attributable to Myers.
Myers’s second argument that he should only be held responsible for
the eight ounces of methamphetamine that he admitted to possessing also
falls short. Possession of a controlled substance may be proven by either
direct or circumstantial evidence, may be actual or constructive, and may be
joint with others. United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th
Cir. 2008). “Constructive possession is ownership, dominion, or control
over the contraband itself or dominion or control over the premises in which
the contraband is concealed.” United States v. Fells, 78 F.3d 168, 170 (5th Cir.
1996) (internal quotation marks, emphasis, and citation omitted).
3
At the time of the search, Myers was earning $13 per hour, which would yield
approximately $27,000 per year for full-time employment.
4
Dean was not charged in the instant offense.
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Here, there was sufficient evidence in the record for the district court
to plausibly conclude that Myers supplied Sutton, his coconspirator, with
methamphetamine and heroin, and that Myers and Sutton lived together in
the RV where the methamphetamine, heroin, and drug proceeds were seized
pursuant to the search warrant. Although Dean may have been present in the
RV when officers arrived to execute the search warrant, she was not charged.
The charged drug conspiracy in this case consisted only of Myers and Sutton.
Given this evidence, the district court could have plausibly concluded that
Myers possessed all of the seized drugs and drug proceeds in the RV, and that
his possession was in furtherance of the drug conspiracy to which he pled
guilty. See Barry, 978 F.3d at 218–20; United States v. Cooper, 274 F.3d 230,
238 (5th Cir. 2001) (“The quantity includes the drugs for which the
defendant is directly responsible and the drugs that can be attributed to him
in a conspiracy as relevant conduct.”); United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005) (affirming the district court’s drug quantity relevant
conduct calculation because it was plausible in light of the record as a whole);
see also U.S.S.G. § 1B1.3(a)(1)(A), (B) (stating relevant conduct includes
defendant’s actions during commission of the offense, as well as relevant
conduct in a jointly undertaken criminal activity that is “within the scope,”
“in furtherance of,” and “reasonably foreseeable in connection with” the
conspiracy). For these reasons, we conclude that the district court did not err
in holding Myers accountable for the drugs and drug proceeds found in the
RV. 5
5
We do not address Myers’s arguments relating to the items seized as a result of
the December 12 traffic stop, see U.S.S.G. § 2D1.1(a)(5), (c)(2) (drug quantity table),
because Myers’s base offense level of 36 was not affected by the quantities of drugs found
in Sutton’s purse or the firearm found in the vehicle.
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B. Firearm Enhancement
Whether the defendant possessed a dangerous weapon is a factual
finding that is reviewed for clear error. See United States v. Ruiz, 621 F.3d
390, 396 (5th Cir. 2010). An argument that “does not concern the specifics
of the factfinding, but, rather, whether the facts found are legally sufficient to
support the enhancement,” is reviewed de novo. United States v. Zapata-
Lara, 615 F.3d 388, 390 (5th Cir. 2010). Myers advances both factual and
legal challenges to the enhancement.
Section 2D1.1(b)(1) provides that, if “a dangerous weapon (including
a firearm) was possessed, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(1). The
commentary provides that the enhancement applies “if the weapon was
present, unless it is clearly improbable that the weapon was connected with
the offense.” Id. at § 2D1.1, comment. (n.11(A)). The Government can take
two approaches in proving the applicability of this enhancement. United
States v. Marquez, 685 F.3d 501, 507 (5th Cir. 2012). “First, the
[G]overnment can prove that the defendant personally possessed the weapon
by showing that a temporal and spatial relation existed between the weapon,
the drug trafficking activity, and the defendant.” United States v. Hooten, 942
F.2d 878, 882 (5th Cir. 1991). Under this approach, “the [G]overnment must
provide evidence that the weapon was found in the same location where
drugs or drug paraphernalia are stored or where part of the transaction
occurred.” Id. Second, “when another individual involved in the commission
of an offense possessed the weapon, the [G]overnment must show that the
defendant could have reasonably foreseen that possession.” Id.Myers disclaims knowledge or ownership of the pistol found in the
RV. However, given the small size of the RV and the nature of the items
found in the RV with the firearm, the district court could have plausibly
found that the RV constituted the situs of Myers and Sutton’s drug
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trafficking conspiracy. Id. Furthermore, considering that Dean was never
charged in the conspiracy with Sutton and Myers, the district court could
plausibly conclude that the firearm more likely belonged to Myers rather than
to Dean. See United States v. King, 773 F.3d 48, 54 (5th Cir. 2014) (upholding
application of the U.S.S.G. § 2D1.1(b)(1) enhancement because although the
defendant “shared the residence with his wife, there is no indication that she
was involved in any drug activity”). Myers advances no discernible argument
to establish that it was clearly improbable that the firearm was connected to
his drug trafficking offenses after the Government established his possession.
See Ruiz, 621 F.3d at 396; U.S.S.G. § 2D1.1(b)(1), comment. (n.11(A)). For
these reasons, we hold that the district court did not err in imposing the
U.S.S.G. § 2D1.1(b)(1) firearm enhancement based on the pistol found in the
RV. 6
C. Substantive Reasonableness
Finally, Myers contends that his 365-month sentence is substantively
unreasonable. Because Myers argued that a within-guidelines sentence was
unreasonable at sentencing, we review his substantive reasonableness
challenge for abuse of discretion. See Holguin-Hernandez v. United States, 140
S. Ct. 762, 766–67 (2020). Thus, the relevant question here is whether the
district court “abused [its] discretion in determining that the [18 U.S.C.]
6
Because we have held that the district court did not err in its determination that
Myers possessed the firearm found in the RV and we can affirm the U.S.S.G. § 2D1.1(b)(1)
enhancement on that basis, we need not address Myers’s arguments pertaining to the
firearm found in the vehicle that was subjected to the traffic stop. Likewise, because a panel
of this court vacated the firearm enhancement in Sutton’s appeal, and her appeal involved
only the firearm found in the vehicle that was subjected to the traffic stop, the disposition
of Sutton’s appeal has no bearing on our disposition of Myers’s appeal. See Sutton, 2021
WL 3276524, at *4.
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§ 3553(a) factors supported the sentence imposed.” Id. at 766 (internal
quotation marks and citation omitted).
As a preliminary matter, Myers’s 365-month within-guidelines
sentence is presumptively reasonable. See United States v. Hernandez, 876
F.3d 161, 166 (5th Cir. 2017). The presumption of reasonableness “is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). Here, the district court listened to defense counsel’s arguments
in favor of a downward variance, Myers’s allocution, and the Government’s
response in opposition to the downward variance. As support for a within-
guidelines sentence, the Government cited Myers’s conviction for drug
conspiracy, the scope of the conspiracy, and the nature and extent of his
criminal history. It further stated that aside from the relevant conduct, eight
ounces of methamphetamine is still a significant amount. The district court
agreed with the Government. Myers offers no support for his argument that
the district court failed to consider a factor that should have received
significant weight or gave significant weight to an irrelevant or improper
factor. See United States v. Maes, 961 F.3d 366, 379 (5th Cir. 2020); Cooks,
589 F.3d at 186. Furthermore, the district court’s sentencing decision is
entitled to deference, and this court may not reweigh the 18 U.S.C. § 3553(a)
factors or reverse a sentence even if it reasonably could conclude that a
different sentence was proper. See Gall, 552 U.S. at 51; see also Hernandez,
876 F.3d at 166. Myers’s disagreement with the district court’s denial of his
request for a downward variance does not rebut the presumption of
reasonableness that attaches to his within-guidelines sentence. See
Hernandez, 876 F.3d at 166–67. Accordingly, he fails to establish that the
district court imposed a substantively unreasonable sentence. See id. at 167.
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IV. Conclusion
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
13