United States v. Lee Bell, Jr. ( 2018 )

Case: 17-10800 Document: 00514445240 Page: 1 Date Filed: 04/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-10800 April 25, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
LEE CURTIS BELL, JR.,
Defendant−Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:16-CR-510-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Lee Bell, Jr., appeals his sentence for being a felon in possession of a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 17-10800 Document: 00514445240 Page: 2 Date Filed: 04/25/2018
No. 17-10800
firearm in violation of 18 U.S.C. § 922(g)(1). He contends that the district court
clearly erred in applying the U.S.S.G. § 2K2.1(b)(6)(B) enhancement because
there was no evidence that he possessed the firearm in connection with the
distribution of marihuana. He emphasizes that the officers did not discover
any evidence indicative of distribution, such as scales, ledgers, or cash. Bell
posits that the number of baggies and amount of marihuana found on him
actually support the conclusion that it was only for personal use. Bell also
underscores that the decision to charge him only with possession should weigh
against application of the enhancement.
The district court’s interpretation of the guidelines is reviewed de novo,
its factual findings for clear error. United States v. Stanford, 823 F.3d 814,
843 (5th Cir.), cert. denied, 137 S. Ct. 453 (2016). The government must prove,
by a preponderance of the evidence, the facts forming the basis of a sentencing
enhancement. United States v. Serfass, 684 F.3d 548, 553 (5th Cir. 2012). If
the district court’s findings are plausible in light of the entire record, there is
no clear error. Id. at 550.
The number of baggies with at least some amount of marihuana, along
with a phone call in which Bell discussed having additional baggies before his
arrest, supported a finding of current or recent drug sales. See United States
v. Jeffries, 587 F.3d 690, 693−94 (5th Cir. 2009). Moreover, the fact that the
government did not charge Bell with distribution is of no consequence. See
§ 2K2.1(b)(6)(B), comment. (n.14(C)). Considering the clear-error standard of
review and the government’s burden to establish the enhancement by a pre-
ponderance of the evidence, the district court could infer plausibly that Bell
possessed the firearm in connection with distribution. See Serfass, 684 F.3d at
550, 553. Accordingly, there was no clear error in the application of the
§ 2K2.1(b)(6)(B) enhancement. See id.
2
Case: 17-10800 Document: 00514445240 Page: 3 Date Filed: 04/25/2018
No. 17-10800
Finally, Bell’s notion that § 922(g) is unconstitutional because it regu-
lates conduct that falls outside the Commerce Clause is foreclosed by United
States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Similarly, the failure of
the indictment to allege that Bell knew the firearm traveled in interstate com-
merce is not reversible error. See United States v. Rose, 587 F.3d 695, 705−06
& n.9 (5th Cir. 2009).
AFFIRMED.
3