     Case: 19-50277      Document: 00515261536         Page: 1    Date Filed: 01/07/2020




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

                                                                            FILED
                                    No. 19-50277                      January 7, 2020
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

DAVID DRAKE,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-258-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant David Drake appeals from the judgment imposing a 120-
month sentence following his guilty plea to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Drake argues here that
the district court clearly erred in applying a four-level Section 2K2.1(b)(6)(B)
enhancement, based on a finding that the firearms were found in close



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-50277
proximity to drugs and drug paraphernalia during a drug-trafficking offense.
Drake contends that he was not involved in a drug-trafficking offense and that
the firearms did not facilitate his drug possession. We AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      In 2017, the vehicle Drake was driving was stopped by an officer of the
police department in Odessa, Texas. Drake consented to a search, which
yielded 14 alprazolam pills that were not prescribed to him.       Drake was
indicted and convicted in Texas state court for possession of a dangerous drug.
      Approximately a year later, Odessa police were informed that narcotics
were being sold out of Drake’s residence.      Officers began surveillance on
Drake’s residence on October 23, 2018. They saw a Ford F-150 truck leave the
residence and commit a traffic violation, allowing the officers to initiate a
traffic stop. Drake was the driver of the vehicle and consented to a search by
the officers. The officers found a clear baggie containing methamphetamine.
      Soon after the traffic stop, Drake’s brother contacted the officers and
informed them that Drake’s adult son had removed firearms from Drake’s
bedroom and garage, then hid them and a bag with suspected narcotics in
Drake’s attic. The officers obtained a search warrant for Drake’s residence and
executed it on October 24, 2018. In the attic, the officers found two 9mm
handguns, a 12-gauge shotgun, a .17 caliber rifle, black-tar heroin, and drug
paraphernalia. In Drake’s bedroom, officers located ammunition for the .17
caliber rifle. The officers also found a 9mm handgun in Drake’s Cadillac.
      In November 2018, Drake was indicted as a felon in possession of a
firearm. Without a plea agreement, Drake pled guilty to the indictment on
December 14.    At the sentencing hearing, the district court adopted the
presentence report (“PSR”). The PSR concluded, among other things, that
Drake should receive a four-level upward adjustment under Section
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                                  No. 19-50277
2K2.1(b)(6)(B) of the Sentencing Guidelines, comment note 14(B), because “the
firearms, drug paraphernalia, and black tar heroin located in the attic are
indicative of drug trafficking.” Drake objected to that adjustment, arguing that
the firearms and drug-related items were 70 feet from each other and that the
trace amount of supposed drug residue found on the paraphernalia was not
tested in a lab. The district court overruled the objection after finding that the
firearms and contraband were proximately located and that the disputed
adjustment was thus warranted.          The district court imposed a within-
Guidelines sentence of 120 months in prison and a three-year term of
supervised release. This timely appeal followed.


                                 DISCUSSION
      The parties dispute the standard of review. The Government argues that
Drake’s argument on appeal is different than the one he made in district court,
therefore subjecting it to plain-error review. Drake’s objection in the district
court to the enhancement was that the firearms and contraband were not
proximately located. On appeal, Drake argues that he was not involved in a
drug-trafficking offense and that the firearms did not facilitate his drug
possession. It seems to us that both in the district court and here, Drake has
argued in only slightly different language that the evidence does not support a
connection between the drugs and the firearms, making the enhancement
inapplicable. We consider the issue preserved. We will examine for clear error
the district court’s factual inference that the proximity of items in Drake’s attic
indicated drug trafficking. See United States v. Coleman, 609 F.3d 699, 708
(5th Cir. 2010). “A factual finding is not clearly erroneous if it is plausible in
light of the record read as a whole.” United States v. Williams, 520 F.3d 414,
422 (5th Cir. 2008).


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                                  No. 19-50277
      Section 2K2.1(b)(6)(B) of the Sentencing Guidelines provides for a four-
level increase if the defendant “used or possessed any firearm . . . in connection
with another felony offense.” The enhancement applies “if the firearm . . .
facilitated, or had the potential of facilitating, another felony offense.”
U.S.S.G. § 2K2.1 cmt. n.14(A). Additionally, this enhancement also applies “in
the case of a drug trafficking offense in which a firearm is found in close
proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”
§ 2K2.1 cmt. n.14(B)(ii). The commentary explains that the enhancement “is
warranted because the presence of the firearm has the potential of facilitating
another felony offense or another offense.” Id.
      The district court relied in part on the PSR, which supported that the
firearms had been taken from Drake’s bedroom and from the garage by his son,
along with a bag containing suspected narcotics, to be hidden in the attic where
black-tar heroin and drug paraphernalia were also located. When imposing
the enhancement, the district court did not discuss the distance between the
drug paraphernalia and black-tar heroin, though defense counsel had just
argued that the distance was too great to show a connection. We conclude the
district court implicitly inferred from these facts that Drake’s firearms were in
close proximity to drug paraphernalia over which he also plausibly should be
found to have had control, meaning the court was applying comment note
14(B)(ii), quoted above. The district court’s finding was plausible and therefore
not clearly erroneous.
      AFFIRMED.




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