     Case: 15-50646        Document: 00513583236       Page: 1   Date Filed: 07/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 15-50646                  United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
UNITED STATES OF AMERICA,                                                 July 7, 2016
                                                                        Lyle W. Cayce
                Plaintiff-Appellee,                                          Clerk

v.

HENRY DAVID WALKER, also known as Stalker,

                Defendant-Appellant.



                     Appeal from the United States District Court
                          for the Western District of Texas


Before KING, JOLLY, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Defendant-Appellant Henry David Walker appeals his conviction for
possession of a firearm in furtherance of a drug-trafficking crime, to which he
pleaded guilty without a plea agreement. Walker argues that the district court
plainly erred when it accepted Walker’s guilty plea because there was an
inadequate factual basis for the conviction. We disagree and AFFIRM.
                                             I.
      Walker pleaded guilty without a plea agreement to conspiracy to possess
with intent to distribute methamphetamine, 1 possession of a firearm in




      1   See 21 U.S.C. §§ 846, 841(a)(1).
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                                        No. 15-50646

furtherance of a drug-trafficking crime, 2 and possession of a firearm by a
convicted felon. 3        At the re-arraignment hearing, Walker admitted to
possessing the multiple firearms specified by the government in the charge and
admitted to possessing those firearms in furtherance of the drug trafficking
crime of conspiracy to possess with intent to distribute methamphetamine.
The government thereafter supplied a factual basis for the plea.                   The
government stated that through authorized interception of wire and electronic
communications, agents learned that Walker was a methamphetamine
supplier in the charged conspiracy. Agents eventually arrested Walker and
thereafter searched his residence, seizing approximately nine firearms and
approximately a pound of methamphetamine that was ninety-six percent pure.
The investigation also revealed that Walker at the time was a convicted felon
who was prohibited from possessing a firearm.
      Walker admitted to these facts and pleaded guilty to the three counts.
The district court sentenced Walker to concurrent terms of 151 months’
imprisonment for the conspiracy and felon-in-possession charges and an
additional mandatory 60-month sentence, to be served consecutively, for
possession of a firearm in furtherance of a drug-trafficking crime. Walker now
appeals only the conviction for possession of a firearm in furtherance of a drug-
trafficking crime, arguing that the factual basis was insufficient to prove that
he possessed the firearms “in furtherance” of a drug-trafficking crime. See 18
U.S.C. § 924(c)(1)(A).
                                                II.
      Because Walker did not raise in the district court a challenge to the
adequacy of the factual basis, we review for plain error. United States v.



      2   See 18 U.S.C. § 924(c)(1)(A).
      3   See 18 U.S.C. §§ 922(g), 924(a)(2).

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Marek, 238 F.3d 310, 315 (5th Cir. 2001). Plain error review “requires the
appellant to show (1) there is an error, (2) that is clear and obvious, and (3)
that affects his substantial rights.” Id. Even if these three requirements are
met, “the decision to correct the forfeited error still lies within our sound
discretion, which we will not exercise unless the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id.
                                                III.
       To determine if the district court erred in accepting Walker’s guilty plea, 4
we compare the elements in 18 U.S.C. § 924(c)(1)(A) to the facts admitted by
Walker, as set forth in the factual basis for the guilty plea. See Marek, 238
F.3d at 315.
       Section 924(c)(1)(A) provides an additional penalty for the possession of
a firearm “in furtherance” of a drug-trafficking crime. 5 See United States v.
Palmer, 456 F.3d 484, 489–90 (5th Cir. 2006). In United States v. Ceballos-
Torres, 218 F.3d 409, 410–11 (5th Cir. 2000), we held that for § 924(c)(1)(A)
purposes, “possession of a firearm is ‘in furtherance’ of the drug trafficking
offense when it furthers, advances, or helps forward that offense.” Palmer, 456
F.3d at 489–90 (internal quotation marks omitted). The mere presence of a




       4   See United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992) (“A guilty plea is
insufficient in itself to support a criminal conviction. . . . The sentencing court must satisfy
itself, through an inquiry of the defendant or examination of the relevant materials in the
record, that an adequate factual basis exists for the elements of the offense.”); Fed. R. Crim.
P. 11(b)(3).
         5 The relevant text of the statute is as follows:

         (c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided
         by this subsection or by any other provision of law, any person who, during and in
         relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm,
         or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the
         punishment provided for such crime of violence or drug trafficking crime--
         (i) be sentenced to a term of imprisonment of not less than 5 years . . . .
18 U.S.C. § 924(c)(1)(A)(i).

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firearm, without more, is not enough. Id. at 490; Ceballos-Torres, 218 F.3d at
414.
        There are several factors that are helpful to determining whether the
possession of a firearm was “in furtherance” of a drug-trafficking crime:
        the type of drug activity that is being conducted, accessibility of
        the firearm, the type of the weapon, whether the weapon is stolen,
        the status of the possession (legitimate or illegal), whether the gun
        is loaded, proximity to the drugs or drug profits, and the time and
        circumstances under which the gun is found.

Palmer, 456 F.3d at 490 (citing Ceballos-Torres, 218 F.3d at 414–15). In
Ceballos-Torres, we affirmed the defendant’s conviction in light of these
factors, noting that: (1) the “weapon was loaded and easily accessible in
Ceballos’s apartment”; (2) Ceballos confessed to ownership of the firearm; (3)
the firearm was possessed illegally; and (4) the firearm “was possessed in the
apartment along with a substantial amount of drugs and money.” Ceballos-
Torres, 218 F.3d at 415.       Those factors, when taken together, reasonably
supported that Ceballos’s gun protected his drugs and money against robbery,
which, we held, was an example of possessing a firearm “in furtherance” of a
drug-trafficking crime. Id.
        In Palmer, we reversed the defendant’s conviction in light of these same
factors, noting that (1) the gun “was locked in a safe, and was not loaded”; (2)
none of the ammunition in the house matched the gun; (3) the defendant
claimed he purchased the gun only to protect himself; (4) the defendant stated
that he secured the gun in a safe to keep kids from accessing the gun; and (5)
the defendant, on multiple occasions, denied that the gun was used in relation
to drug trafficking. 456 F.3d at 490.
        Walker argues that the Ceballos-Torres factors do not support a finding
that he possessed a firearm “in furtherance” of a drug-trafficking crime
because there was no evidence of the proximity of the firearms to the drugs,

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the accessibility of the firearms, whether the firearms were loaded, or whether
there was ammunition or any other evidence found in the house linking the
firearms to the methamphetamine conspiracy. We are not persuaded. The
factual basis need not provide evidence for every one of the Ceballos-Torres
factors for a court to conclude that the defendant possessed a firearm in
furtherance of a drug-trafficking crime. See, e.g., Ceballos-Torres, 218 F.3d at
414–15 (noting that the listed factors are examples of factors that a court
“might include” in its analysis to “help” determine whether possession of a
firearm was in furtherance of a drug-trafficking crime); id. at 415 (concluding
that the firearm was possessed in furtherance of a drug-trafficking crime when
there was evidence relevant to some, but not all, of the factors); United States
v. Charles, 469 F.3d 402, 406–07 (5th Cir. 2006) (affirming jury-trial conviction
for possession of firearm in furtherance of drug-trafficking offense based on
some, but not all, of the factors).
       Here, the facts are closer to those in Ceballos-Torres than in Palmer.
Like in Ceballos-Torres, Walker possessed the firearms in his residence along
with       a   substantial   amount     of   drugs—approximately           a   pound     of
methamphetamine that was ninety-six percent pure. See 218 F.3d at 415. The
factual basis also established that, as in Ceballos-Torres, Walker’s possession
of the firearms was illegal because Walker was a convicted felon at the time.
See id. In light of these facts, as well as the number and type of firearms seized
from Walker’s residence 6 combined with the fact that Walker was a
methamphetamine supplier with a large amount of methamphetamine at his



       6  Approximately nine firearms were found at Walker’s residence, including a 32-
caliber firearm, a 22-caliber rifle with a BSA scope, another 22-caliber rifle, two 20-gauge
shotguns, a Smith & Wesson 38 Special revolver, a 22-caliber revolver, and a 9-millimeter
semiautomatic firearm. In contrast, the defendant in Ceballos-Torres possessed only a single
gun. 218 F.3d at 415.

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residence, we cannot say that the district court’s acceptance of Walker’s guilty
plea was “clear” error. 7 See Marek, 238 F.3d at 315; Ceballos-Torres, 218 F.3d
at 415. 8
       AFFIRMED.




       7  See also, e.g., Charles, 469 F.3d at 406–07 (affirming jury-trial conviction for
possession of firearm in furtherance of drug-trafficking offense when a disassembled semi-
automatic pistol that “could have been made ready for use in short order” was found in a
storage unit within close proximity to over 400 grams of crack cocaine and was possessed
illegally because the defendant was a convicted felon); United States v. Riggins, 524 F. App’x
123, 130–31 (5th Cir. 2013) (affirming jury-trial conviction for possession of firearm in
furtherance of drug-trafficking offense when there was a “substantial amount” of cocaine at
the house; none of the firearms were antiques mounted on the wall or similarly benign; the
firearms were possessed illegally because Riggins was a convicted felon at the time; nothing
in the time or circumstances under which the firearms were found indicated that Riggins
may have had a legitimate purpose for possessing the firearms unrelated to drug trafficking;
and the firearms were found “as a result of a search warrant based on illegal drug activity”).
        8 Because the factual basis for Walker’s guilty plea was sufficient, we need not address

the government’s alternative argument that other evidence showing that Walker exchanged
firearms for methamphetamine constitutes possession in furtherance of a drug-trafficking
crime.

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