United States v. Chappell ( 2023 )

Case: 23-30100 Document: 00516952601 Page: 1 Date Filed: 11/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-30100 November 1, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brian W. Chappell,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:22-CR-37-1
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit
Judges.
Per Curiam: *
Brian W. Chappell pled guilty to possession of an unregistered firearm
in violation of 26 U.S.C. § 5861(d), and possession of a firearm without a
serial number in violation of 26 U.S.C. § 5861(i). The firearms cited in the
offenses of conviction were firearm silencers. Chappell was sentenced to 46
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
Case: 23-30100 Document: 00516952601 Page: 2 Date Filed: 11/01/2023
No. 23-30100
months of imprisonment and three years of supervised release. He now
appeals, challenging his sentence.
The undisputed facts recounted in Chappell’s presentence report
show that he was stopped by police while driving his tow truck. In the cab of
the truck was a box addressed to Chappell. The contents included 168 grams
of methamphetamine, digital scales, and plastic baggies. The silencers cited
in the conviction offenses were found in exterior storage compartments of
the tow truck. 1 The silencers were in, or could readily have been put in,
operating condition, and there were other firearms in the exterior storage
compartments with the silencers. In determining Chappell’s guidelines
range, the probation officer applied the cross-reference under U.S.S.G.
§ 2K2.1(c)(1)(A) to U.S.S.G. § 2X1.1, which resulted in the application of
U.S.S.G. § 2D1.1, the Guideline addressing drug-trafficking offenses.
Chappell unsuccessfully objected to the application of
Section 2K2.1(c)(1). His objection was that the adjusted offense level was
the same whether his guidelines range was calculated under Section 2K2.1 or
Section 2D1.1 because the probation officer had erroneously calculated his
adjusted offense level under Section 2D1.1. In his sole issue on appeal,
Chappell contends that the district court erred in imposing the cross-
reference under Section 2K2.1(c)(1) because there was no connection
between his possession of the silencers and his possession of the drugs. This
argument is different from the one he raised in the district court, and we
review it only for plain error. See United States v. Hill, 63 F.4th 335, 364 (5th
Cir. 2023); United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016).
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1
The record supports a finding that the exterior storage compartments were locked
when Chappell left his home following a hurricane, but it is silent as to whether the storage
compartments were still locked a month later when he was pulled over by police.
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No. 23-30100
Firearm silencers are firearms as defined in 26 U.S.C. § 5845(a)(7), 18
U.S.C. § 921(a)(3)(C), and U.S.S.G. § 2K2.1 cmt. n.1. Pursuant to the
commentary to Section 2K2.1, subsection (c)(1) applies “if the firearm or
ammunition facilitated, or had the potential of facilitating,” another felony
offense. § 2K2.1 cmt. n.14(A). In cases like this one, where a drug-trafficking
offense is involved, the cross-reference should apply if the “firearm is found
in close proximity to drugs . . . or drug paraphernalia.” § 2K2.1 cmt.
n.14(B)(ii). We have stated that the “in connection with” language of
Section 2K2.1(c) requires a functional nexus. United States v. Mitchell, 166
F.3d 748, 756 (5th Cir. 1999). The factual finding of a connection between
the firearm and another offense is reviewed for clear error. See id. at 754 n.24.
The record does not support Chappell’s contention that the district
court applied the cross-reference based on his possession of any firearm other
than the two silencers that were cited in the offenses of conviction. In
overruling Chappell’s objection to the application of the cross-reference and
finding that the probation officer had correctly calculated Chappell’s
guidelines sentencing range, the district court implicitly adopted the factual
findings necessary to conclude that Section 2K2.1(c)(1)(A)’s cross-reference
applied. See United States v. Anderson, 174 F.3d 515, 526 n.3 (5th Cir. 1999).
The district court’s determination that there was a sufficient
connection between Chappell’s possession of the firearm silencers and the
drug-trafficking offense to establish the necessary functional nexus “is
plausible in light of the record read as a whole,” and is therefore not clearly
erroneous. United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005);
Mitchell, 166 F.3d at 756. Accordingly, the district court did not err, plainly
or otherwise, in applying Section 2K2.1(c)’s cross-reference.
AFFIRMED.
3