     Case: 17-10969      Document: 00514668783         Page: 1    Date Filed: 10/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                      No. 17-10969
                                                                               Fifth Circuit

                                                                             FILED
                                                                       October 4, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

DAVID VINCENT LEDESMA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-71-1


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
       Defendant-Appellant David Vincent Ledesma appeals his forty-six-
month sentence for possession of a firearm as a felon, in violation of 18 U.S.C.
§ 922(g)(1). Ledesma argues that the district court erred by applying a four-
level enhancement for possessing a firearm in connection with a drug offense.
U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(b)(6)(B) (U.S.
Sentencing Comm’n 2017). Because the record does not support a finding that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10969
the firearm facilitated Ledesma’s drug possession, we VACATE the sentence
and REMAND for re-sentencing.
                                         I.
      On October 27, 2016, Dallas Police Department officers were assisting
with an immigration investigation at a building that housed an illegal game
room upstairs. The game room had been the location of several arrests for
drugs, guns, stolen vehicles, and parole and probation violations. The officers
informed the owner of the building of the problems they had experienced with
the game room, and he invited them to accompany him upstairs to the room.
A man who was standing at the bottom of the stairs saw the officers
approaching and immediately ran up the stairs. Officers chased the man
upstairs, where they encountered Ledesma. An officer performed a pat-down
and found a loaded .9-millimeter handgun in Ledesma’s right pants pocket. A
second officer performed a search incident to arrest and found .23 grams of
methamphetamine and a methamphetamine pipe in his left pants pocket.
Ledesma was initially arrested on state charges for unlawful possession of a
firearm by a felon and possession of a controlled substance. He was later
indicted by a federal grand jury for possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1).
      Ledesma pled guilty and, according to the Presentence Investigation
Report (PSR), his base offense level was fourteen. Because he possessed a
firearm in connection with another felony offense, a four-level increase
pursuant to U.S.S.G. § 2K2.1(b)(6)(B) applied. After accounting for a three-
level reduction for acceptance of responsibility, the PSR calculated Ledesma’s
total offense level as fifteen. Based on Ledesma’s criminal history category of
VI, his guideline sentencing range was determined to be forty-one to fifty-one
months.


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                                  No. 17-10969
      During the sentencing hearing, the Government called the arresting
officer, who testified that based on his knowledge of prior illegal activity at the
game room and the manager’s identification of Ledesma as a security
employee, that Ledesma was protecting illegal activity, including drug
trafficking. The officer further testified that he believed Ledesma’s possession
of the gun was done for two purposes: protecting his own drugs and protecting
the illegal game room. The officer, however, did not search the game room for
drugs and admitted that there was no evidence that Ledesma was selling drugs
or was aware that drugs were sold in the game room.
      Ledesma objected to the four-point enhancement on the basis that he
possessed the firearm for a reason wholly unrelated to his drug possession—
he was working security for the game room. The district court overruled
Ledesma’s objection, finding:
            [T]hat the Government has established through the
      testimony of the witness as well as the content of the presentence
      report and the addendum that the weapon facilitated or at least
      had the potential to facilitate the possession of the
      methamphetamine.
             This is an enhancement that is based upon circumstantial
      evidence, but in the Court’s experience mere users of drugs such
      as methamphetamine do not have weapons closely associated with
      the methamphetamine and the glass pipe; therefore, there is some
      purpose for having the weapon in the same pant pocket as the
      methamphetamine and the glass pipe, which I find in this case at
      least had the potential to facilitate the drug possession if, in fact,
      it did not facilitate the drug possession.
      The   district   court   sentenced      Ledesma   to   forty-six   months   of
imprisonment, a sentence in the middle of the guidelines range.
                                        II.
      We review a sentencing determination under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). An error in applying

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                                 No. 17-10969
the Sentencing Guidelines is a “significant procedural error” that constitutes
an abuse of discretion. Id. When we assess an alleged procedural error, a
district court’s application of a sentencing enhancement “is a factual finding
reviewed for clear error.” United States v. King, 773 F.3d 48, 52 (5th Cir. 2014)
(quoting United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (per curiam)).
“A factual finding is not clearly erroneous if it is plausible, considering the
record as a whole.” Id. (quoting Ruiz, 621 F.3d at 396). “A factual finding is
clearly erroneous when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. Castillo, 430 F.3d 230, 238 (5th
Cir. 2005) (quoting United States v. Cooper, 274 F.3d 230, 238 (5th Cir. 2001)).
Reasonable inferences drawn by the district court are also findings of fact
reviewed for clear error.    King, 773 F.3d at 52 (quoting United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)).
                                      III.
      Ledesma argues that the district court erred in applying the four-level
enhancement because there was no evidence that possession of the firearm
furthered his drug possession crime. The United States argues that the close
proximity of the firearm to the drugs, the setting, and the surrounding
circumstances supported the district court’s application of the enhancement.
      A four-level sentencing enhancement applies to a defendant convicted of
being a felon in possession of a firearm when the defendant “used or possessed
any firearm or ammunition in connection with another felony offense.”
U.S.S.G. § 2K2.1(b)(6)(B). Application of the enhancement depends on the type
of felony offense alleged.      If the offense involves drug trafficking, §
2K2.1(b)(6)(B) applies automatically if “a firearm is found in close proximity to
drugs, drug-manufacturing materials, or drug paraphernalia.” § 2K2.1(b)(6)(B)


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                                       No. 17-10969
cmt. n.14(B)(ii). 1 For all felonies that are not drug trafficking or burglary, §
2K2.1(b)(6)(B) applies only if “the firearm or ammunition facilitated, or had
the potential of facilitating, another felony offense.” Id. cmt. n.14(A).
       As the Government concedes, the district court applied the §
2K2.1(b)(6)(B) enhancement based on the felony offense of possessing
methamphetamine, not drug trafficking. In United States v. Jeffries, we held
that “when the ‘other offense’ is possession only of a ‘user’ quantity of drugs
and no evidence is presented that the defendant is a trafficker, the evidence
(under a preponderance of the evidence standard) must support a finding that
the firearm facilitated or had the potential to facilitate the drug possession” for
§ 2K2.1(b)(6)(B) to apply. 587 F.3d 690, 694 (5th Cir. 2009) (citing United
States v. Blankenship, 552 F.3d 703, 705 (8th Cir. 2009)). In that case, the
defendant was arrested after taking a gun from a man in a violent altercation.
The district court applied the enhancement because the gun was located on the
driver’s seat of his vehicle and a single rock of crack cocaine was found on the
floor behind the driver’s seat. Id. at 691. At sentencing, the Government
introduced evidence that Jeffries had sole possession of the car, to support the
inference that the cocaine belonged to him, and evidence that he had
possession of the gun in his car before the fight began. Id. at 691–92. The
district court overruled Jeffries’s objection to the enhancement without
explanation. Id. at 692. We reversed, finding that “[t]he record [was] devoid
of evidence that would support any finding that Mr. Jeffries’s possession of the
firearm ‘facilitated’ his possession of cocaine.” Id. at 693. Nor was “such a
finding plausible in light of the record as a whole.” Id. at 695. “At best, the




       1 Section 2K2.1(b)(6)(B) also applies automatically if the defendant “during the course
of a burglary, finds and takes a firearm.” Id. cmt. n.14(B)(i).
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                                     No. 17-10969
Government [had] shown only that Mr. Jeffries possessed cocaine and a
firearm at the same time.” Id. at 693.
      The evidence on the record in this case does not support the district
court’s finding that Ledesma’s possession of a firearm facilitated his drug
possession.    The district court’s reasoning for applying the enhancement
appears to be contradictory.           The court reasoned that mere users of
methamphetamine do not have weapons near their drugs and that there must
be some other purpose for having the weapon and drugs in close proximity. 2
But the district court did not ultimately find, nor does the Government argue,
that Ledesma was engaged in drug trafficking. Thus, the district court appears
merely to have presumed that there was a nexus between Ledesma’s drug and
gun possession. There was no other finding that Ledesma’s “possession of a
gun ‘emboldened’ him to engage in the crime of [drug] possession, or that it
served to ‘protect’ such a small amount of drugs.” Jeffries, 587 F.3d at 695
(internal citations omitted). The only record evidence of such activities was
the arresting officer’s testimony that he believed Ledesma possessed the gun
for the purpose of protecting his drugs while present at the illegal game room
frequented by criminals. But, on cross-examination, the officer admitted that
he did not know if Ledesma was aware of the illegal activity that took place at
the game room. Furthermore, the district court failed to consider Ledesma’s
stated reason for possessing a firearm that night—he was working security.
Thus, the district court’s finding that Ledesma’s possession of the gun
facilitated his drug possession was based only on evidence of simultaneous
possession; that alone, however, is insufficient for the enhancement to apply.



      2  The district court also incorrectly stated that the firearm, methamphetamine, and
glass pipe were in the same pocket of Ledesma’s pants. The record shows that the gun was
found in Ledesma’s right front pants pocket and the drugs and pipe were found in his left
front pants pocket.
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                                         No. 17-10969
See id. (“[T]he evidence . . . must be something more than the simultaneous
possession of a small quantity of drugs and a gun in the same vehicle standing
alone . . . .”).
       The Government argues that we, and other circuits, have affirmed
applications of § 2K2.1(b)(6)(B) in similar circumstances. In United States v.
Handy, the district court found possession of a firearm facilitated possession
of a user amount of cocaine when “(1) shots were fired in the area shortly before
police arrived on the scene; (2) Handy attempted to avoid detection; (3) both
the firearm and the drugs were found on Handy's person, in close proximity to
one another; and, (4) as Handy was sitting in his vehicle, the gun was in his
back pocket, readily accessible to facilitate his possession of the drugs if the
need arose.” 555 F. App’x 440, 443 (5th Cir. 2014) (unpublished). 3 But, on
appeal, Handy only argued that the district court erred in adopting part of the
PSR without providing him a new sentencing hearing and denying his motion
for a downward departure. We did not address whether application of the
enhancement was proper. 4 Id. at 443–45. Thus, Handy is not relevant to our
analysis.      In United States v. Jenkins, the Fourth Circuit applied the
enhancement to a defendant who “took [a] revolver and cocaine onto a public
street, near where a gun had recently been fired, close to midnight.” 566 F.3d
160, 164 (4th Cir. 2009).           In Jeffries, we cited Jenkins favorably for the
proposition that § 2K2.1(b)(6)(B) may be applied when possession of a gun
“emboldened” drug possession or “served to ‘protect’ such a small amount of




       3 The Government acknowledges that this unpublished decision lacks precedential
value. See 5TH CIR. R. 47.5.4.
       4 That question was addressed in Handy’s first appeal and we remanded the case for

the district court to enter a finding as to facilitation, which it did by adopting a portion of the
PSR in a written order. Id. at 442–43; see United States v. Handy, 485 F. App’x 677, 680 (5th
Cir. 2012) (unpublished).
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                                     No. 17-10969
drugs.” Jeffries, 587 F.3d at 695 (citing Jenkins, 566 F.3d at 164). 5 Unlike in
Jenkins, however, Ledesma did not possess the firearm and drugs in a location
where a shooting had recently occurred.            We are therefore guided by our
analysis in Jeffries that merely possessing a gun and a user amount of drugs
together in public does not establish the requisite nexus required to find
facilitation of another felony.
                                           IV.
       We conclude that the district court erred in applying a four-level
enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) where the record did not
support a finding that Ledesma’s possession of a firearm facilitated his
possession of a user amount of methamphetamine. Because misapplication of
the sentence guidelines constitutes a significant procedural error, we VACATE
the district court’s sentence and REMAND for re-sentencing in a manner not
inconsistent with this opinion.




      5 The other case cited favorably in Jeffries and by the Government in its response
brief, United States v. Smith, found that the defendant was not emboldened when he
simultaneously possessed drugs and firearms in his home. 535 F.3d 883, 886 (8th Cir. 2006).
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