United States v. McDonald ( 2023 )

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Case: 22-60073 Document: 00516674649 Page: 1 Date Filed: 03/13/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-60073 FILED
March 13, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lamar McDonald,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:19-CR-107-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Lamar McDonald was convicted after a jury trial of one count of
conspiring to possess with intent to distribute 500 grams or more of a
substance or mixture containing a detectable amount of cocaine and a
mixture or substance containing a detectable amount of methamphetamine;
two counts of possessing with intent to distribute a mixture of substance
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60073 Document: 00516674649 Page: 2 Date Filed: 03/13/2023
No. 22-60073
containing a detectable amount of cocaine; and two counts of attempting to
distribute a mixture of substance containing a detectable amount of
methamphetamine. On appeal, McDonald challenges the sufficiency of the
evidence to support his convictions. He further argues that the district court
incorrectly applied three sentencing enhancements.
First, because McDonald preserved his sufficiency issue in the district
court, our review is de novo. See United States v. Carbins,

882 F.3d 557

, 562-
63 (5th Cir. 2018). In reviewing preserved sufficiency claims, we determine
whether “after viewing the evidence and all reasonable inferences in the light
most favorable to the [Government], any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
United States v. Vargas-Ocampo,

747 F.3d 299

, 301 (5th Cir. 2014) (en banc)
(citing Jackson v. Virginia,

443 U.S. 307

, 319 (1979)).
To prove conspiracy to possess with intent to distribute cocaine and
methamphetamine, the Government must show: “(1) two or more persons,
directly or indirectly, reached an agreement to possess with the intent to
distribute a controlled substance; (2) the defendant knew of the agreement;
(3) the defendant voluntarily participated in the agreement; and (4) the
overall scope of the conspiracy involved the drug amount in the charged
crime.” United States v. Bowen,

818 F.3d 179

, 186 (5th Cir. 2016) (internal
quotation marks, brackets, and citation omitted). A defendant is guilty of an
attempt crime under

21 U.S.C. § 846

 when, acting with the kind of culpability
otherwise required to commit a substantive offense, he engages in conduct
that constitutes a substantial step toward commission of the offense. United
States v. Redd,

355 F.3d 866

, 872-73 (5th Cir. 2003). To prove distribution of
methamphetamine, the Government must show: “(1) knowledge, (2)
possession [of the illegal substance], and (3) intent to distribute.” United
States v. Garza,

990 F.2d 171

, 174 (5th Cir. 1993). When viewing the evidence
and all reasonable inferences in the light most favorable to the Government,
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No. 22-60073
we conclude that the evidence was sufficient to support McDonald’s
convictions. See Vargos-Ocampo,

747 F.3d at 301

.
Next, we review a denial of a motion for new trial for abuse of
discretion. United States v. Franklin,

561 F.3d 398

, 405 (5th Cir. 2009).
“Generally, motions for new trial are disfavored and must be reviewed with
great caution.” United States v. Piazza,

647 F.3d 559

, 565 (5th Cir. 2011).
We conclude that the guilty verdict was not against the weight of the evidence
and that the district court did not abuse its discretion by denying McDonald’s
motion for a new trial.
Finally, McDonald challenges three sentencing enhancements
applied to the calculation of his offense level. We review de novo a district
court’s interpretation or application of the Sentencing Guidelines and its
factual findings for clear error. See United States v. Muniz,

803 F.3d 709

, 712
(5th Cir. 2015). We conclude that the district court did not clearly err when
it determined that the record supported a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1) for possession of a firearm by a coconspirator. See
United States v. Vital,

68 F.3d 114

, 119 (5th Cir. 1995). The district court did
not clearly err in applying a U.S.S.G. § 2D1.1(b)(5) enhancement because the
court could reasonably infer that the methamphetamine involved in the drug-
trafficking conspiracy was imported from Mexico. United States v. Serfass,

684 F.3d 548

, 550, 553-54 (5th Cir. 2012). The district court did not clearly
err in applying a three-level enhancement under U.S.S.G. § 3B1.1(b) because
the evidence supported a finding that McDonald managed or supervised at
least five participants in the criminal activity. See United States v. Zuniga,

720 F.3d 587