United States v. Ross ( 2023 )

Case: 21-51249 Document: 00516696797 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 21-51249 March 31, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Randy Dwain Ross,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-255-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Randy Dwain Ross pleaded guilty of being a felon in possession of a
firearm. In this appeal, Ross challenges the four-level enhancement of his
offense level under U.S.S.G. § 2K2.1(b)(6)(B) because he used or possessed
a firearm or ammunition in connection with a drug trafficking offense. See
§ 2K2.1, comment. (n.14(B)(ii)).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-51249 Document: 00516696797 Page: 2 Date Filed: 03/31/2023
No. 21-51249
Our review of the district court’s application of the Sentencing
Guidelines is de novo, and our review of the district court’s factual findings
is for clear error. See United States v. Alcantar, 733 F.3d 143, 146 (5th Cir.
2013). “A factual finding is not clearly erroneous if it is plausible in light of
the record as a whole.” Id. (internal quotation marks and citation omitted).
Ross contends that the findings in the presentence report did not bear
sufficient indicia of reliability to support the district court’s reliance on them
without additional corroborating evidence. He contends that the evidence
did not show that he was involved in drug distribution or that the firearm
facilitated drug distribution.
In general, a presentence report bears sufficient indicia of reliability to
be considered as evidence by the sentencing court. See United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012). In addition to the presentence
report, the record in this case also includes a police detective’s affidavit filed
in support of the criminal complaint. See United States v. Robins, 978 F.2d
881, 892 (5th Cir. 1992).
Here, a firearm, ammunition, and items associated with firearms were
found in close proximity to items that have been recognized by this court as
associated with the drug trade. See United States v. Mays, 466 F.3d 335, 341
(5th Cir. 2006); see also United States v. Bass, 996 F.3d 729, 742 (5th Cir.
2021); Alcantar, 733 F.3d at 146-47. The district court’s finding that the
firearm was possessed in connection with Ross’s drug trafficking activity was
plausible in light of the record as a whole and, therefore, was not clearly
erroneous. See Alcantar, 733 F.3d at 146. The judgment is AFFIRMED.
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