United States v. Myers

Case: 21-50771 Document: 00516265529 Page: 1 Date Filed: 04/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 4, 2022
No. 21-50771
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Nathan Sergei Myers,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-48-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Nathan Sergei Myers was sentenced to 63 months of imprisonment
after pleading guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, he contends that the
district court clearly erred in applying a four-level enhancement under
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50771 Document: 00516265529 Page: 2 Date Filed: 04/04/2022
No. 21-50771
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with a drug
trafficking offense. Myers argues that there was no evidence of a connection
between any firearms and the drugs and that the district court erred in
deferring to the commentary to the Sentencing Guidelines in light of the
Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). We need
not address the effect of Kisor on the Sentencing Guidelines in general or
Application Note 14(B) of § 2K2.1 in particular because, as discussed below,
there was sufficient evidence for the district court to find a connection
between the drugs and the firearms without the presumption of facilitation
set forth in Application Note 14(B).
The determination that a firearm was used or possessed in connection
with another felony offense pursuant to § 2K2.1(b)(6)(B) is a factual
determination that we review for clear error. United States v. Bass, 996 F.3d
729, 742 (5th Cir. 2021). There is no clear error if a factual finding is plausible
in light of the record as a whole. United States v. Huerta, 994 F.3d 711, 714
(5th Cir. 2021).
The Sentencing Guidelines provide for a four-level enhancement if a
defendant “used or possessed any firearm or ammunition in connection with
another felony offense.” § 2K2.1(b)(6)(B). “[T]he enhancement applies, in
general, ‘if the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense.’” United States v. Alcantar, 733 F.3d 143,
146 (5th Cir. 2013) (quoting § 2K2.1, comment. (n.14(A))). In determining
whether possession of a firearm facilitated or had the potential to facilitate a
felony offense, the facts of the case must demonstrate that the firearm in
question emboldened the offense or served to protect the contraband. United
States v. Jeffries, 587 F.3d 690, 695 (5th Cir. 2009). Despite Myers’s
assertions to the contrary, the record reflects that he was distributing heroin
and methamphetamine from his residence, a 9mm pistol and a shotgun were
readily accessible from within his residence, and a confidential informant,
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Case: 21-50771 Document: 00516265529 Page: 3 Date Filed: 04/04/2022
No. 21-50771
who later conducted a controlled purchase, advised the police that Myers
“was also in possession of a small pistol.” Because the determination that
Myers possessed a firearm in furtherance of a drug trafficking offense is
plausible in light of the record as a whole, the district court did not clearly err
in imposing a four-level enhancement under § 2K2.1(b)(6)(B). See Huerta,
994 F.3d at 714.
Accordingly, the judgment of the district is AFFIRMED.
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