                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0202p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 18-2428
        v.                                               │
                                                         │
                                                         │
 ANTHONY DWAYNE MCCLOUD, II,                             │
                           Defendant-Appellant.          │
                                                         ┘

                         Appeal from the United States District Court
                    for the Western District of Michigan at Grand Rapids.
                    No. 1:17-cr-00151-1—Robert J. Jonker, District Judge.

                             Decided and Filed: August 20, 2019

                  Before: GILMAN, SUTTON, and WHITE, Circuit Judges.
                                 _________________

                                         COUNSEL

ON BRIEF: Larry C. Willey, WILLEY & CHAMBERLAIN LLP, Grand Rapids, Michigan, for
Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee.

        GILMAN, J., delivered the opinion of the court in which SUTTON, J., joined, and
WHITE, J., joined in the judgment. WHITE, J. (pg. 10), delivered a separate opinion concurring
in the judgment.
                                     _________________

                                          OPINION
                                     _________________

       RONALD LEE GILMAN, Circuit Judge. Anthony McCloud, II pleaded guilty to one
count of conspiracy to distribute methamphetamine and to one count of actually distributing the
drug. He was sentenced to 180 months of imprisonment. The district court applied a two-level
 No. 18-2428                           United States v. McCloud                         Page 2


sentencing enhancement because McCloud carried a firearm during an attempt to buy marijuana
during the course of the conspiracy.

        McCloud argues that the district court erred in applying the enhancement because,
according to him, the marijuana incident is not “relevant conduct” under the Sentencing
Guidelines. His argument is primarily based on the fact that he pleaded guilty to charges
involving methamphetamine, whereas the firearm was related solely to the marijuana incident.
For the reasons set forth below, we AFFIRM the judgment of the district court.

                                       I. BACKGROUND

A. Factual background

        Officers from the Lansing Police Department conducted trash pulls in March and April
2016 at the Hughes Road residence where McCloud lived with his girlfriend Stephanie Clark.
The officers uncovered marijuana leaves and stems, potting soil, growing liquid, and handwritten
marijuana labels. In April 2016, the police executed a search warrant at the Hughes Road
residence and seized 22 grams of methamphetamine, 13 grams of cocaine, 2.5 pounds of
marijuana, and 26 marijuana plants. The police then arrested McCloud and requested state
charges for manufacturing marijuana, maintaining a drug house, and possession with intent to
distribute cocaine and methamphetamine. McCloud was released that same day.

        Approximately a year later, Clark sold methamphetamine to an undercover police officer
on seven separate occasions, the last being for 112 grams in July 2017. On the day that the July
transaction was scheduled to occur, the police conducted surveillance and observed McCloud
and Clark in a residence on Stoll Road in DeWitt, Michigan. The Stoll Road residence was
rented by McCloud and Marlo Doerr.            Doerr told the police that she was McCloud’s
ex-girlfriend. During their surveillance, the police saw McCloud drive from the Stoll Road
residence to a house occupied by Tracy Withers. Later that same day, a task force of Lansing
police and federal law-enforcement agents executed a search warrant at the residence on Stoll
Road.    They observed an unspecified quantity of methamphetamine, which resulted in
McCloud’s arrest.
 No. 18-2428                         United States v. McCloud                           Page 3


       Clark participated in two police interviews. She told the police that McCloud provided
her with all of the methamphetamine that she sold and that she gave McCloud the money from
the sales. Clark estimated that she and McCloud had sold a total of between 560 and 700 grams
of methamphetamine during the relevant time period.

       Police surveillance established that McCloud was involved in drug dealing with Clark,
Doerr, Withers, and Shariece Pickett. This caused the police to conduct lawful searches of
Withers’s and Pickett’s residences. They found a handgun at Withers’s residence. At Pickett’s
residence, they found a small amount of methamphetamine, and Pickett admitted to receiving
and storing methamphetamine for McCloud. Clark later told the police that McCloud stored
methamphetamine at Withers’s and Pickett’s residences.

       During her interviews with the police, Clark described an instance when she went to
Detroit with McCloud and Withers to meet with a marijuana supplier. The trip happened at
an unspecified time between the April 2016 search of the Hughes Road residence and the
July 2017 arrests. McCloud and Withers went together in one vehicle, and Clark followed
in a second vehicle. They brought Withers’s handgun on the trip. Once they arrived,
McCloud got out of the car to meet with the drug supplier, but came back running, with
Withers’s gun in hand, saying that he had been robbed and that they needed to leave
immediately. They drove back to Lansing without the drugs. Withers admitting to making
this Detroit trip, and she confirmed that McCloud was in possession of her handgun when he
got robbed. She claimed, however, that she did not know the purpose of the trip.

B. Procedural background

       McCloud pleaded guilty to counts one and eight of the indictment. Count one charged
him with conspiracy to distribute, and to possessing with the intent to distribute, 500 grams or
more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(A)(viii). And count eight alleged that McCloud and Clark distributed
50 grams or more of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii).
 No. 18-2428                          United States v. McCloud                           Page 4


       In the Presentence Report, the Probation Office recommended that the district court apply
a two-level enhancement pursuant to § 2D1.1(b)(1) of the United States Sentencing Guidelines
because “McCloud carried [a] firearm during a drug transaction.” McCloud objected to the
enhancement on the following grounds: (1) he possessed the firearm during an attempt to buy
marijuana, not methamphetamine; (2) the attempted marijuana transaction never occurred
because McCloud was robbed; and (3) the firearm was not used.

       The government acknowledged at sentencing that McCloud might be correct in his
objection to the two-level enhancement. But the district court nevertheless found that the
enhancement was appropriate. The court stated that “the overall relevant conduct . . . included
and focused on meth . . . but also had cocaine and marijuana.” It therefore concluded that the
Detroit trip was “relevant conduct.” The court noted that McCloud actually handled the firearm
during an attempted drug transaction, and that the trip occurred during the relevant timeframe of
the conspiracy and with two other people involved in the conspiracy.

       Applying the two-level enhancement yielded a final offense level of 35. McCloud’s
criminal history placed him in category III, so his advisory Guidelines range was 210 to 262
months of imprisonment. The court imposed a below-Guidelines sentence of 180 months. Had
the court not applied the two-level firearm enhancement, McCloud’s advisory Guidelines range
would have been 168 to 210 months of imprisonment. But the fact that McCloud’s ultimate
sentence is within the Guidelines range without the two-level enhancement does not compel a
finding of harmless error if the enhancement were to be deemed improper. See United States v.
Vandeberg, 201 F.3d 805, 812 (6th Cir. 2000) (holding that the district court’s erroneous
sentencing enhancement did not constitute harmless error where the defendant was sentenced to
140 months and the enhancement elevated the applicable Guidelines range from 120-150 months
of imprisonment to 140-175 months).

                                        II. ANALYSIS

A. Standard of review

       “[T]his court has held that our standard of review of a district court’s application of
provisions of the Sentencing Guidelines to the facts should be treated deferentially and should
 No. 18-2428                         United States v. McCloud                            Page 5


not be disturbed unless clearly erroneous.” United States v. Simmerman, 850 F.3d 829, 832 (6th
Cir. 2017). “The district court’s interpretation of the Guidelines and mixed questions of law and
fact are reviewed de novo[,] while factual findings are reviewed for clear error.” United States
v. Schock, 862 F.3d 563, 566–67 (6th Cir. 2017). “A district court’s finding that a defendant
possessed a firearm during a drug crime is a factual finding subject to the clearly erroneous
standard of review.” United States v. Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002) (quoting
United States v. Elder, 90 F.3d 1110, 1133 (6th Cir. 1996)).

B. Firearm enhancement under § 2D1.1(b)(1) of the Sentencing Guidelines

       Section § 2D1.1(b)(1) of the United States Sentencing Guidelines authorizes courts to
impose a two-level enhancement “[i]f a dangerous weapon (including a firearm) was possessed.”
“The enhancement should be applied if the weapon was present, unless it is clearly improbable
that the weapon was connected with the offense.” U.S. Sentencing Guidelines Manual § 2D1.1
cmt. n.11(A) (U.S. Sentencing Comm’n 2018).          This two-level enhancement “reflects the
increased danger of violence when drug traffickers possess weapons.” Id.

       “In order for § 2D1.1(b)(1) to be applicable, the government must establish (1) that the
defendant ‘possessed’ the weapon, and (2) that such possession was during the commission of
the offense.” United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991), abrogated on other
grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002). The government
must prove these elements by a preponderance of the evidence. United States v. Catalan,
499 F.3d 604, 606 (6th Cir. 2007). “Once it is established that a defendant was in possession of
a weapon during the commission of an offense, a presumption arises that such possession was
connected to the offense.” Sanchez, 928 F.2d at 1460. The burden then shifts to the defendant
“to demonstrate that ‘it is clearly improbable that the weapon was connected to the offense,’ in
which case the enhancement would not be applicable.” Id. (quoting U.S. Sentencing Guidelines
Manual § 2D1.1(b)(1) cmt. 11(A) (U.S. Sentencing Comm’n 2018) (previously cmt. 3)).
“A defendant must present evidence, not mere argument, in order to meet his or her burden.”
United States v. Greeno, 679 F.3d 510, 514 (6th Cir. 2012).
 No. 18-2428                            United States v. McCloud                             Page 6


        This court recognized in United States v. Faison, 339 F.3d 518 (6th Cir. 2003), that the
1991 amendments to the Sentencing Guidelines removed the requirement that the weapon be
possessed during the commission of the specific crime charged in the indictment. Id. at 520.
“[A]ll that the government need show is that the dangerous weapon be possessed during
‘relevant conduct.’” Id.

        “Relevant     conduct   under    the   sentencing   guidelines   includes   ‘all   acts   and
omissions . . . that were part of the same course of conduct or common scheme or plan as the
offense of conviction.’” Id. (ellipsis in original) (quoting U.S Sentencing Guidelines Manual
§ 1B1.3(a)(2)). “For two or more offenses to constitute part of a common scheme or plan, they
must be substantially connected to each other by at least one common factor, such as a common
victims, common accomplices, common purpose, or similar modus operandi.” U.S. Sentencing
Guidelines Manual § 1B1.3 cmt. n.5(B)(i) (U.S. Sentencing Comm’n 2018). The Guidelines
further note that

        [o]ffenses that do not qualify as part of a common scheme or plan may
        nonetheless qualify as part of the same course of conduct if they are sufficiently
        connected or related to each other as to warrant the conclusion that they are part
        of a single episode, spree, or ongoing series of offenses. Factors that are
        appropriate to the determination of whether offenses are sufficiently connected or
        related to each other to be considered as part of the same course of conduct
        include the degree of similarity of the offenses, the regularity (repetitions) of the
        offenses, and the time interval between the offenses. When one of the above
        factors in absent, a stronger presence of at least one of the other factors is
        required.

Id. at cmt. n.5(B)(ii).

C. The district court did not err in applying the two-level enhancement for using a
   firearm.

        McCloud argues that the Detroit trip is not relevant conduct. He therefore contends that
the district court erred in applying the two-level enhancement for using a firearm under
§ 2D1.1(b)(1) of the Sentencing Guidelines. Specifically, he argues that (1) using a gun was not
a regular occurrence, (2) the Detroit trip could have occurred more than a year before the
methamphetamine sales in May through July 2017, and (3) the Detroit trip was not similar to the
charged conduct because the trip involved marijuana rather than methamphetamine.
 No. 18-2428                          United States v. McCloud                              Page 7


       The district court found that although “the government charged this as a meth
conspiracy, . . . the overall relevant conduct as described in terms of what was found in various
homes along the way included . . . cocaine and marijuana.” It then noted that “one of the sources
of meth for Mr. McCloud, whatever else he might have been doing in Detroit, was in Detroit.”
Next, the court observed that the Detroit trip involved Clark and Withers, who were both
involved in the conspiracy. It therefore concluded that the Detroit trip “is within the scope of the
overall conspiracy and relevant conduct.” Finally, the court noted that the firearm was “actually
handled by Mr. McCloud in the course of . . . an attempted drug transaction.”

       Based on these findings of fact, the court concluded that the Detroit trip was relevant
conduct. We agree. The Detroit trip and the charged conduct in the present case are part of the
same common scheme or plan because they are “substantially connected to each other by at least
one common factor.” See U.S. Sentencing Guidelines Manual § 1B1.3 cmt. n.5(B)(i) (U.S.
Sentencing Comm’n 2008).

       One of these common factors is that the Detroit trip and the charged methamphetamine
conspiracy had common accomplices. Withers and Clark accompanied McCloud on the Detroit
trip, and they were also involved in the conspiracy to distribute methamphetamine. Clark sold
methamphetamine to an undercover agent in seven separate instances between May and July
2017, including the sale that led to her arrest.       And, according to Clark, Withers stored
methamphetamine for McCloud and delivered packages of methamphetamine to the Hughes
Road residence shared by McCloud and Clark. Clark, moreover, told the police that Withers
provided her with the methamphetamine used for the seventh buy in July 2017.

       The trip to Detroit also shared a common purpose with the charged conduct: to distribute
drugs. Although the indictment was based on a conspiracy to distribute methamphetamine,
McCloud’s drug activities included the possession and distribution of cocaine and marijuana.

       We must accept the district court’s factual findings unless they are clearly erroneous.
United States v. Schock, 862 F.3d 563, 566–67 (6th Cir. 2017). They are not. Trash pulls of the
Hughes Road residence in March and April 2016 uncovered marijuana leaves and stems, potting
soil, growing liquid, and handwritten marijuana labels—all evidence demonstrating that
 No. 18-2428                         United States v. McCloud                            Page 8


McCloud was growing and distributing marijuana. And when the police executed a search
warrant at that residence in April 2016, they found 2.5 pounds of marijuana, 26 marijuana plants,
marijuana grow lights, a humidifier, light timers, a digital scale, and a marijuana drying net.
McCloud, in fact, admitted to growing and selling marijuana. Finally, the Presentence Report
attributed cocaine and marijuana to McCloud without any objection on his part. These facts
counter McCloud’s argument that the Detroit trip is not relevant conduct because it involved
marijuana rather than methamphetamine.

       Moreover, as the government argues, caselaw supports considering an incident relevant
conduct even if the incident involves a different drug than the charged conduct. In United States
v. Deitz, 577 F.3d 672 (6th Cir. 2009), for example, this court held that Deitz’s possession of
cocaine and sales of marijuana were within the scope of a conspiracy to possess and distribute
methamphetamine. Id. at 678–80. The government also points to this court’s unpublished
decision in United States v. Gauna, 485 F. App’x 70 (6th Cir. 2012), where this court held that
three ounces of crack cocaine were within the scope of a conspiracy to possess and distribute
marijuana. Id. at 76–77.

       Furthermore, the Detroit trip occurred during the timeframe of the charged conspiracy.
Count one of the indictment charged that McCloud, Clark, and Pickett engaged in a conspiracy
to distribute methamphetamine from January 2015 to July 2017. And although we do not know
exactly when McCloud, Clark, and Withers went to Detroit to meet with the marijuana supplier,
we do know that the trip happened between the April 2016 search of the Hughes Road residence
and the July 2017 arrest. The trip therefore occurred during the timeframe of the charged
conspiracy.

       Finally, the Detroit trip and the charged conduct had a similar modus operandi—
obtaining drugs from a supplier in Detroit. McCloud had a supplier of methamphetamine there.
On one occasion, he gave Pickett money and instructed her to travel to a residence in Detroit and
return to McCloud what she received at the residence. She returned with a teddy bear, from
which she saw McCloud remove narcotics. All told, Pickett took three trips to Detroit to obtain
drugs for McCloud.      And McCloud stated that the supplier in Detroit brought him the
methamphetamine that Clark sold in Lansing from May to July of 2017.
 No. 18-2428                         United States v. McCloud                            Page 9


       McCloud’s argument that the Detroit trip was not relevant conduct focuses on the factors
laid out in United States v. Amerson, 886 F.3d 568 (6th Cir. 2018). These factors are similarity,
regularity, and the time interval between offenses. Id. at 574. But McCloud fails to address
whether the Detroit trip and the charged conduct were part of a common scheme or plan, which
is an alternative basis for a finding of relevant conduct that is not subject to the
same-course-of-conduct factors set forth in Amerson. See U.S Sentencing Guidelines Manual
§ 1B1.3(a)(2), cmt. n.5(B)(ii) (U.S. Sentencing Comm’n 2018); Amerson, 886 F.3d at 574
(applying the factors to determine whether a defendant’s possession of a handgun was part of the
same course of conduct as his underlying conviction). Because we conclude that the Detroit trip
and the charged conduct were part of a common scheme or plan, we need not address whether
they were also part of the same course of conduct under the Amerson factors.

                                     III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
 No. 18-2428                          United States v. McCloud                           Page 10


                          ______________________________________

                               CONCURRING IN THE JUDGMENT
                          ______________________________________

       HELENE N. WHITE, Circuit Judge, concurring in the judgment.                I concur in the
judgment on the basis that the district court did not clearly err in concluding––based on the large
quantity of marijuana found at the Hughes Road address, which McCloud claimed to share with
co-conspirator Clark, and Clark’s and Withers’s accompanying McCloud to Detroit, riding in
two cars, with Withers bringing her gun––that the trip to Detroit was part of a common scheme
or plan to distribute drugs.
