     Case: 18-10362       Document: 00514761417         Page: 1     Date Filed: 12/14/2018




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

                                     No. 18-10362                            FILED
                                   Summary Calendar                   December 14, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

UNDRAL DEWAYNE JERNIGAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-224-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Undral Dewayne Jernigan contests his 110-month sentence, imposed
following his guilty plea to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922 (g)(1), 924 (a)(2). He contends the district court
clearly erred in applying a four-level Sentencing Guideline § 2K2.1(b)(6)(B)
enhancement, based on finding the firearm was found in close proximity to
drugs and drug paraphernalia during a drug-trafficking offense.                                        He


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-10362

maintains: he was not involved in such an offense; and the firearm did not
facilitate his drug possession.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). “In determining whether a Guidelines
enhancement applies, the district court is allowed to draw reasonable
inferences from the facts, and these inferences are fact findings reviewed for
clear error.” United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010)
(citation omitted). “A factual finding is not clearly erroneous if it is plausible
in light of the record as a whole.” United States v. Alcantar, 733 F.3d 143, 146
(5th Cir. 2013) (internal quotation marks and citation omitted).
      Guideline § 2K2.1(b)(6)(B) provides for a four-level increase if defendant
“used or possessed any firearm . . . in connection with another felony offense”.
Guideline § 2K2.1(b)(6)(B).       The enhancement applies “if the firearm . . .
facilitated, or had the potential of facilitating, another felony offense”.
Guideline § 2K2.1, cmt. n.14(A). “‘[I]n the case of a drug trafficking offense in
which a firearm is found in close proximity to drugs, drug-manufacturing
materials, or drug paraphernalia’ the enhancement automatically applies
because the Sentencing Commission has concluded that ‘the presence of the
firearm has the potential of facilitating’ these types of offenses”. United States



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                                  No. 18-10362

v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009) (emphasis omitted) (quoting
U.S.S.G. § 2K2.1 cmt. n.14(B)(ii)).
      Jernigan disputes the district court’s conclusion he was engaged in a
drug-trafficking offense based on the evidence presented at sentencing. At the
time of his arrest, Jernigan was in possession of a revolver, 22.4 grams of
heroin, synthetic marijuana (K-2), several plastic bags, and a bottle labeled
Mannitol, a known cutting agent used in the manufacture and delivery of
narcotics. A law-enforcement agent testified at sentencing that the heroin was
worth approximately $800 to $900.           Jernigan had an extensive criminal
history, including a prior conviction for drug distribution, and admitted to
dealing drugs in the past. Further, Jernigan had been unemployed for over a
month at the time of his arrest. It is not implausible, in the light of the record
as a whole, that Jernigan intended to distribute the heroin he possessed. See
Alcantar, 733 F.3d at 146–48. Therefore, the court did not clearly err in
applying the § 2K2.1(b)(6)(B) enhancement because the preponderance of the
evidence supports the conclusion Jernigan was engaged in drug trafficking.
United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011).
      AFFIRMED.




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