United States v. Garza

Case: 22-20338 Document: 00516781237 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
June 9, 2023
No. 22-20338
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Arturo Garza, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-298-1
______________________________
Before Richman, Chief Judge, and Stewart and Dennis, Circuit
Judges.
Per Curiam:*
Arturo Garza, Jr., pleaded guilty to possession of a firearm by a felon
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Garza argues that the
district court erred at sentencing by applying U.S.S.G. § 2K2.1(a)(4)(B),
which imposes an elevated base offense level if the offense involved in
relevant part “a semiautomatic firearm that is capable of accepting a large
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-20338
capacity magazine.”1 Garza also argues the district court erred by applying
§ 2K2.1(b)(6)(B), which imposes a sentence enhancement if the defendant
“used or possessed any firearm or ammunition in connection with another
felony offense.”2 Because the district court erred in applying both, we vacate
Garza’s sentence and remand to the district court for resentencing.
I
In December 2020, officers with the Houston Police Department
attempted to arrest Garza on several outstanding warrants. Garza was taken
into custody after being confronted by officers and fleeing from his vehicle.
Once back at Garza’s vehicle, officers recovered a semiautomatic pistol; a
100-round magazine, located in the front passenger seat; 19.92 grams of
Oxycodone, located in the center console’s cupholder; 7.2 grams of
marijuana, located in between the driver’s seat and the center console; and a
ski mask.
The presentence report (PSR) provided that Garza’s base offense
level should be elevated to 20 under U.S.S.G. § 2K2.1(a)(4)(B) because
Garza is a “prohibited person” and “the offense involved a semiautomatic
firearm that had in close proximity a magazine that was capable of accepting
a large capacity magazine (more than 15 rounds of ammunition) specifically
100 rounds.” The PSR also recommended a four-level enhancement under
§ 2K2.1(b)(6)(B) because Garza possessed the firearm in connection with
another felony offense, specifically “possession of a controlled substance.”
With a total offense level of 25, and a criminal history category of III, Garza’s
advisory guidelines range was 70 to 87 months of imprisonment.
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1
U.S.S.G. § 2K2.1(a)(4)(B)(i)(I).
2
U.S.S.G. § 2K2.1(b)(6)(B).
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Garza filed a written objection to the four-level enhancement under
§ 2K2.1(b)(6)(B), arguing there was no evidence that he possessed the
firearm in connection with the offense of felony possession of a controlled
substance. He did not object to the elevated base offense level under
§ 2K2.1(a)(4)(B). The Government responded that the enhancement
applied because of the firearm’s close proximity to the drugs, which
supported the firearm’s potential of facilitating another felony offense.
Garza replied that proximity was insufficient for the application of this
enhancement if the other offense involves drug possession alone. The
probation officer maintained that the enhancement should apply under this
court’s precedent.
At the sentencing hearing, the district court denied Garza’s objection
to the four-level enhancement under § 2K2.1(b)(6)(B) because “the firearm
was present next to the drugs and facilitated possession of the drugs.” The
district court adopted the PSR and sentenced Garza within the advisory
guidelines range to 75 months of imprisonment (reduced from 87 months to
account for the time Garza spent in federal custody), to be served
concurrently with any state sentence imposed, three years of supervised
release, and a $100 special assessment. Garza filed a timely notice of appeal.
II
Garza first argues the district court erred in applying the four-level
enhancement under § 2K2.1(b)(6)(B) for possession of a firearm in
connection with another felony offense. Because the district court clarified
that the other felony offense employed in its enhancement calculus was drug
possession,3 and because the only evidence offered by the Government as to
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3
See United States v. Juarez, 626 F.3d 246, 253 n.16 (5th Cir. 2010) (noting that
“the initial step in evaluating a § 2K2.1(b)(6) enhancement is to ‘first identify the other
3
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whether Garza possessed the firearm in connection with the alleged drug
possession was the firearm’s close proximity to the drugs, the district court
erred in applying the enhancement.
When, as here, a challenge is preserved, this court reviews the district
court’s interpretation and application of the Sentencing Guidelines de novo
and its factual findings for clear error.4 “A district court’s determination that
a firearm was used or possessed in connection with another felony offense for
purposes of U.S.S.G. § 2K2.1(b)(6)(B) is a factual finding that is reviewed
for clear error.”5 In deciding whether to apply an enhancement, “a district
court is permitted to draw reasonable inferences from the facts, and these
inferences are fact-findings reviewed for clear error as well.”6 “A factual
finding is not clearly erroneous if it is plausible considering the record as a
whole.”7
First, Garza argues the district court erred in solely relying on
proximity and simultaneous possession of a “small amount” of drugs and a
firearm in a vehicle to apply the § 2K2.1(b)(6)(B) enhancement. He argues
that the cases the PSR relied on, United States v. Washington8 and United
States v. Condren,9 are no longer good law in light of additions made to
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felony employed in the district court’s enhancement calculus’” (quoting United States v.
Condren, 18 F.3d 1190, 1194 (5th Cir. 1994))).
4
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007).
5
United States v. Bass, 996 F.3d 729, 742 (5th Cir. 2021) (citing United States v.
King, 773 F.3d 48, 52 (5th Cir. 2014)).
6
United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006).
7
United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (quoting United States
v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010)).
8
340 F.3d 222 (5th Cir. 2003).
9
18 F.3d 1190 (5th Cir. 1994).
4
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relevant commentary to § 2K2.1. He argues that this court should look
instead to United States v. Jeffries,10 in which this court explained that under
§ 2K2.1(b)(6)(B) there is “no automatic conclusion” that the enhancement
applies in cases in which the other felony offense is drug possession “just
because” the firearm and drugs “are located in the same vehicle.”11 The
Government argues that Jeffries is distinguishable for several reasons. It
points out that, in Jeffries, the drug quantity was significantly lower than what
was recovered in this case, and, in this case, the drugs and firearm were in
close proximity and there was evidence of current or recent drug distribution
or sales by Garza. The Government argues that these facts support the
district court’s finding that the firearm facilitated Garza’s drug possession.
It argues in the alternative that we should affirm because the record supports
an implicit finding that the other felony offense was drug trafficking because
Garza had a history of drug distribution, the drug quantity here was not
consistent with personal use, and Garza claimed only occasional monthly use
of Oxycodone.
Section 2K2.1(b)(6)(B) provides that the offense level for a firearm
offense should be increased by four levels if the defendant “used or possessed
any firearm . . . in connection with another felony offense.”12 According to
the commentary, “‘[a]nother felony offense’ . . . means any federal, state, or
local offense . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction
obtained.”13 In general, the enhancement applies if the firearm facilitated, or
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10
587 F.3d 690 (5th Cir. 2009).
11
Id. at 692-93.
12
U.S.S.G. § 2K2.1(b)(6)(B).
13
U.S.S.G. § 2K2.1 cmt. n.14(C).
5
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had the potential of facilitating, another felony offense, such as drug
possession.14 But, specifically when the other felony offense is a drug
trafficking offense and a firearm is found in close proximity to drugs or drug
paraphernalia, application of the enhancement is “warranted because the
presence of the firearm has the potential of facilitating another felony
offense.”15 Thus, in the context of drug trafficking offenses under Note
14(B), the evidence need not satisfy the facilitation standard applicable under
Note 14(A) for other types of felony offenses.16 In Jeffries, this court
explained that the § 2K2.1(b)(6)(B) enhancement “automatically applies” if
the other felony offense is a drug trafficking offense in which a firearm is
found in close proximity to drugs.17 But the Jeffries court held that Note
14(A), rather than Note 14(B)(ii), applied to the defendant because he had no
history of recent drug distribution or sales and he possessed only a single rock
of crack cocaine.18 Applying Note 14(A), this court determined that the
Government failed to show by a preponderance of evidence that the firearm
facilitated or had the potential to facilitate the defendant’s drug possession;
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14
U.S.S.G. § 2K2.1 cmt. n.14(A); see also United States v. Juarez, 626 F.3d 246, 253
(5th Cir. 2010) (setting out the facilitation test for non-drug-trafficking felonies).
15
U.S.S.G. § 2K2.1 cmt. n.14(B)(ii).
16
See United States v. Alcantar, 733 F.3d 143, 147 n.6 (5th Cir. 2013) (citing Juarez,
626 F.3d at 253).
17
United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009) (citing U.S.S.G.
§ 2K2.1 cmt. n.14(B)(ii)).
18
See id. at 693-95; see also United States v. Eaden, 914 F.3d 1004, 1008-09 & n.2
(5th Cir. 2019) (explaining that the Note 14(B)(ii) presumption of facilitation applies when
the other felony offense is drug trafficking but not when the other felony offense is drug
possession).
6
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thus, the district court there clearly erred in applying the § 2K2.1(b)(6)(B)
enhancement.19
Here, the district court clearly erred in finding that the firearm
facilitated or had the potential of facilitating Garza’s possession of the drugs.
Garza correctly notes that the cases on which the probation officer relied,
Washington and Condren, were decided before additions to the relevant
commentary provided a definition for the phrase “in connection with,”
setting forth the facilitation standards under Notes 14(A) and 14(B)(ii).20
Additionally, the other felony employed in the district court’s enhancement
calculus was drug possession, not drug trafficking. At sentencing, the district
judge stated that “the firearm was present next to the drugs” and concluded
this “facilitated possession of the drugs,” abandoning an earlier statement that
the firearm “potentially facilitat[ed] the crime of possession of illegal drugs
or possession with intent to distribute illegal drugs.” Although the district court
also adopted the PSR, the PSR does not allege that Garza possessed the
firearm in connection with a drug trafficking offense, but instead, only
“possession of a controlled substance.”21 Furthermore, no evidence was
presented that Garza was involved in drug trafficking at the time of the
_____________________
19
Jeffries, 587 F.3d at 695; see also United States v. Sealy, 661 F. App’x 278, 282 (5th
Cir. 2016) (per curiam) (unpublished) (holding that the enhancement did not apply because
there was no evidence the defendant was a drug trafficker and no evidence other than
proximity to the drugs that the defendant possessed a firearm in connection with drug
possession).
20
Compare U.S.S.G. § 2K2.1 cmt. n.14 (2006), with U.S.S.G. § 2K2.1 (2004). See
Jeffries, 587 F.3d at 692-93; Juarez, 626 F.3d at 253; U.S.S.G. § 2K2.1 cmt. n.14(A) & (B).
21
United States v. Condren, 18 F.3d 1190, 1194-95 (5th Cir. 1994) (explaining that
the other felony offense was either drug distribution, based on the district court adopting
the finding in the PSR that “[t]he defendant was in possession of a firearm while involved
in the distribution of crack/cocaine,” or drug possession, based on the district court’s
finding at sentencing that the defendant possessed the firearm “at the same time that . . . he
was possessing controlled substances”).
7
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instant offense and, in state court, Garza was charged with possession of a
controlled substance, not with a drug trafficking offense.
Therefore, the enhancement is proper only if it is plausible in view of
the record as a whole that Garza’s firearm possession facilitated his alleged
drug possession under the standard set forth in 14(A).22 Here, the loaded
firearm was found in plain view on the passenger seat of the vehicle, and the
drugs were found in the center console and cupholder area; but no other
evidence of drug trafficking was found. Although the firearm was found in
close proximity to the drugs in the vehicle, mere proximity is not sufficient
to support an enhancement under the standard in 14(A).23 The record
suggests that the district court relied almost exclusively on the gun’s
proximity to the drugs, as it placed particular emphasis on the photograph of
the vehicle’s interior. Because the Government merely showed that Garza
possessed the drugs and firearm at the same time,24 we conclude the district
court erred in applying the § 2K2.1(b)(6)(B) enhancement.
Garza further argues that the district court’s error in calculating the
guidelines range was not harmless. When a significant procedural error
occurs at sentencing, remand for resentencing is required unless the error
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22
See Jeffries, 587 F.3d at 693; see also United States v. Le, 512 F.3d 128, 134 (5th
Cir. 2007) (noting that this court may affirm on any basis supported by the record).
23
See Eaden, 914 F.3d at 1008-09 & n.2 (“In this circuit, there is . . . no
presumption of facilitation when the defendant possesses a firearm along with only user
amounts of narcotics.”); see also Jeffries, 587 F.3d at 693-95; United States v. Ledesma, 750
F. App’x 344, 347-49 (5th Cir. 2018) (unpublished) (vacating the defendant’s sentence
because the district court’s finding that the defendant’s possession of the gun facilitated
his drug possession was based only on evidence of simultaneous possession); Sealy, 661 F.
App’x at 282 (vacating sentence because there was no evidence, other than proximity to
the drugs, establishing that the defendant possessed a firearm in connection with drug
trafficking or drug possession).
24
See Jeffries, 587 F.3d at 693.
8
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was harmless.25 To establish harmless error, the proponent of the sentence
must convincingly demonstrate that the sentence would have been the same
absent the error.26 In the instant case, the Government does not argue that
the district court would have imposed the same sentence absent the alleged
error. In his reply brief, Garza argues that because the Government did not
show the error was harmless, it forfeited this argument on appeal. However,
this court can, in its discretion, consider harmless error sua sponte.27 With
the enhancement, Garza’s advisory guidelines range was 70 to 87 months of
imprisonment. Without the enhancement, his total offense level would have
been 21 and his advisory guidelines range would have been 46 to 57 months
of imprisonment.28 The district court sentenced Garza to 87 months of
imprisonment, with credit for 12 months that he spent in federal custody.
Because the record does not reflect that the district court would have
imposed the same sentence even if the guidelines range had been 46 to 57
months of imprisonment, the alleged error is not harmless.29 We therefore
vacate Garza’s sentence and remand for resentencing.
III
Garza also challenges the district court’s application of the elevated
base offense level under U.S.S.G. § 2K2.1(a)(4)(B). He argues that the
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25
United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009).
26
United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011).
27
See United States v. Groce, 784 F.3d 291, 296 n.2 (5th Cir. 2015), superseded by
regulation on other grounds as stated in United States v. Halverson, 897 F.3d 645, 651 (5th Cir.
2018).
28
See U.S.S.G. Ch. 5, Pt. A (Sentencing Table).
29
See Johnson, 648 F.3d at 278-80.
9
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Government presented no evidence demonstrating the firearm and magazine
were compatible.
Because Garza did not raise this argument in the district court, this
court’s review is limited to plain error.30 To show plain error, Garza must
show the forfeited error is clear or obvious and affects his substantial rights.31
If Garza makes such a showing, this court has the discretion to correct the
error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.32
Section 2K2.1(a)(4)(B) provides for an elevated base offense level of
20 if the offense involved a “semiautomatic firearm that is capable of
accepting a large capacity magazine” and the defendant was a “prohibited
person” at the time of the offense.33 The Sentencing Guidelines commentary
defines a “semiautomatic firearm that is capable of accepting a large capacity
magazine” as “a semiautomatic firearm that has the ability to fire many
rounds without reloading because at the time of the offense . . . a magazine or
similar device that could accept more than 15 rounds of ammunition” was
either attached to the firearm or in close proximity to it.34 In United States v.
Luna-Gonzalez,35 this court determined the Government failed to present
evidence to meet its burden of showing the large-capacity magazine was
compatible with the appellant’s firearm.36 The court found the
_____________________
30
See Puckett v. United States, 556 U.S. 129, 135 (2009).
31
Id.32
Id.33
U.S.S.G. § 2K2.1(a)(4)(B).
34
U.S.S.G. § 2K2.1 cmt. n.2.
35
34 F.4th 479 (5th Cir. 2022).
36
Id. at 480-81
10
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Government’s unsworn response to the appellant’s written objections was
not sufficient to meet its burden of proof.37 Following Luna-Gonzalez, this
court has found the Government’s failure to present evidence that the
firearm and magazine were compatible for purposes of § 2K2.1(a)(4)(B)
constituted plain error, and this court exercised its discretion to correct the
error.38 In this case, the PSR provided that the elevated base offense level
was applicable because the semiautomatic firearm was in close proximity to
a magazine capable of accepting a large capacity magazine. In response to
Garza’s PSR objections, the Government stated that “the firearm was loaded
with a 100 round magazine.” However, the Government’s unsworn
response was not sufficient to meet its burden of proof,39 and the
Government did not present evidence to demonstrate the firearm and
magazine were compatible. The Government concedes on appeal that it did
not present any evidence in the district court and that the PSR did not state
that the firearm and magazine were attached or compatible. The
Government also concedes that the photograph of the firearm and magazine
on the car’s passenger seat does not show whether the firearm and magazine
were attached or were merely next to each other. Because the Government
did not present any evidence to demonstrate the firearm and magazine were
compatible, the district court made a clear and obvious error in imposing the
elevated base offense level under § 2K2.1(a)(4)(B).40
When, as here, “the record is silent as to what the district court might
have done had it considered the correct Guidelines range, the court’s reliance
_____________________
37
Id. at 480.
38
See United States v. Romero, No. 21-50485, 2022 WL 3584873, at *2 (5th Cir.
Aug. 22, 2022) (per curiam) (unpublished).
39
See Luna-Gonzalez, 34 F.4th at 480.
40
See id. at 480-81; see also Romero, 2022 WL 3584873, at *2.
11
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on an incorrect range in most instances will suffice to show an effect on the
defendant’s substantial rights.”41 The district court’s error affected Garza’s
substantial rights because it increased his offense level and his advisory
guidelines range.42 The Supreme Court has held that “[i]n the ordinary
case . . . the failure to correct a plain Guidelines error that affects a
defendant’s substantial rights will seriously affect the fairness, integrity, and
public reputation of judicial proceedings.”43
Conceding plain error, the Government asks this court for the
opportunity to present additional evidence on remand to support the
application of the elevated base offense level. It asserts that Garza confirmed
the semiautomatic firearm was loaded when pleading guilty, he did not object
to the Government’s statement that the firearm was loaded with a 100-round
magazine, and he did not object to the elevated offense level in the district
court. As this court explained in United States v. Hernandez,44 the district
court may consider corrections and additions relevant to the issue on
remand.45 We therefore remand to the district court with instructions to
permit the Government to present additional evidence as to whether the
firearm and magazine found in Garza’s vehicle were compatible.46
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41
Molina-Martinez v. United States, 578 U.S. 189, 201 (2016).
42
See id.; see also Romero, 2022 WL 3584873, at *2.
43
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018).
44
48 F.4th 367 (5th Cir. 2022).
45
Id. at 371-72 (distinguishing United States v. Chem. & Metal Indus., Inc., 677 F.3d
750, 753 (5th Cir. 2012)).
46
See id.; United States v. Carales-Villalta, 617 F.3d 342, 345 (5th Cir. 2010).
12
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* * *
We VACATE Garza’s sentence and REMAND to the district court
for resentencing consistent with this opinion.
13