     Case: 19-50885      Document: 00515482093         Page: 1    Date Filed: 07/08/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                               FILED
                                                                            July 8, 2020
                                    No. 19-50885
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID MCDANIEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:19-CR-14-1


Before HIGGINBOTHAM, HO and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       David     McDaniel      pleaded      guilty    to   conspiring     to    distribute
methamphetamine and received a below-guidelines sentence to 188 months in
prison and 3 years of supervised release. On appeal, he argues that the district
court erred in applying a two-level enhancement under U.S.S.G. § 2D1.1(b)(1)
based on his possession of a handgun. McDaniel was arrested in a motel room
in which officers found the gun in question, a piece of methamphetamine


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 19-50885

weighing 6.1 grams, and methamphetamine and marijuana residue; police also
found a small bag on McDaniel’s person containing various pills.
      A district court’s application of § 2D1.1(b)(1) is a factual finding reviewed
for clear error, and a factual finding “is not clearly erroneous if it is plausible,
considering the record as a whole.” United States v. Ruiz, 621 F.3d 390, 396
(5th Cir. 2010). Section 2D1.1(b)(1) provides for a two-level enhancement if a
firearm or other dangerous weapon “was possessed” during a drug trafficking
offense. § 2D1.1(b)(1). We have held that for this enhancement to be applied,
the Government must establish the defendant’s possession of a dangerous
weapon by a preponderance of the evidence, which it may do by showing “that
a temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant.” United States v. King, 773 F.3d 48, 53
(5th Cir. 2014) (internal quotation marks and citation omitted). “Under this
standard, the Government must show that the weapon was found in the same
location where drugs or drug paraphernalia are stored or where part of the
transaction occurred.” United States v. Romans, 823 F.3d 299, 317 (5th Cir.
2016) (internal quotation marks and citation omitted). If the Government
carries this burden, the defendant can avoid the enhancement only by showing
it is “clearly improbable that the weapon was connected with the offense.” Id.
(internal quotation marks and citation omitted).
      McDaniel does not dispute that he was found in possession of both
methamphetamine and a firearm during the time the conspiracy was
operative. Although the quantity of the methamphetamine may have been
consistent with personal use, as McDaniel argues, he has not shown that this
is inherently problematic under our caselaw. Cf. United States v. Akins, 746
F.3d 590, 610 (5th Cir. 2014). Nor are we convinced that to associate the gun
with his offense is implausible under the circumstances.             As McDaniel



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                                No. 19-50885

produced no rebuttal evidence showing that such an association is clearly
improbable, we accordingly conclude that the district court did not clearly err
by applying the enhancement.
      AFFIRMED.




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