Opinion

United States v. McDonald

Court
Court of Appeals for the Fifth Circuit
Filed
Jun 15, 2023
Status
Unpublished
Nature of suit
Direct Criminal
Cited by
0 cases
Authority
More cited than 23.5%

The opinion

Case: 22-10352 Document: 00516788887 Page: 1 Date Filed: 06/15/2023

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 22-10352

Summary Calendar FILED

____________ June 15, 2023

Lyle W. Cayce

United States of America, Clerk

Plaintiff—Appellee,

versus

Alfred John McDonald,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:20-CR-242-1

______________________________

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam: *

Alfred John McDonald pleaded guilty to conspiracy to possess with

intent to distribute a controlled substance. The presentence report (PSR)

assigned a base offense level of 30 based on 1,139.9 kilograms of marijuana.

Among other adjustments, the PSR added two levels under U.S.S.G.

§ 2D1.1(b)(1) for possessing a dangerous weapon. McDonald was assigned

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-10352 Document: 00516788887 Page: 2 Date Filed: 06/15/2023

No. 22-10352

14 criminal history points resulting in a criminal history category VI. Twelve

of those points were from four aggravated robberies committed in 1995. This

combination resulted in a recommended guidelines range of 360 to 480

months in prison. McDonald filed objections to the drug quantity finding,

the dangerous-weapon enhancement, and his criminal history score. The

district court overruled all the objections. The district court granted

McDonald a downward variance and sentenced him to 150 months in prison

and four years of supervised release.

McDonald challenges district court’s factual finding on drug quantity

based on drug ledgers and other documents. We review the district court’s

drug-quantity finding for clear error when, as here, a defendant objects to the

finding in the district court and will affirm the quantity finding if it is plausible

in the light of the entire record. United States v. Betancourt, 422 F.3d 240,

246 (5th Cir. 2005). The evidence supports the plausibility of the district

court’s interpretation of the ledgers and documents, and McDonald has not

shown otherwise. See United States v. Kearby, 943 F.3d 969, 974 (5th Cir.

2019); United States v. Fields, 932 F.3d 316, 320 (5th Cir. 2019).

Next, McDonald argues that the district court erred by assigning 12 of

the 14 criminal history points because the 1995 offenses were too far in the

past to qualify for criminal history points under U.S.S.G. § 4A1.2(e)(1).

McDonald challenges the finding that the relevant conduct for the current

offense began in 2017. Relevant conduct is a factual question subject to clear

error review. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009).

Contrary to McDonald’s assertion, the relevant conduct finding was not

based on unsupported statements in the PSR and was plausible in the light of

the record as a whole. See Kearby, 943 F.3d at 974 n.3; Betancourt, 422 F.3d

at 246.

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Case: 22-10352 Document: 00516788887 Page: 3 Date Filed: 06/15/2023

No. 22-10352

Finally, McDonald argues that the district court erred in applying a

two-level enhancement for possession of a dangerous weapon under

§ 2D1.1(b)(1). The district court’s application of § 2D1.1(b)(1) is a factual

finding reviewed for clear error. United States v. King, 773 F.3d 48, 53 (5th

Cir. 2014). The enhancement “reflects the increased danger of violence

when drug traffickers possess weapons,” and it should be applied “if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” See § 2D1.1, comment. (n.11(A)). Contrary to

McDonald’s argument, the district court in this case stated without

ambiguity that it was applying the enhancement because the evidence

established that the firearm was in the same location as the drugs and drug

paraphernalia and could be used to protect the drug trafficking. See King, 773

F.3d at 53. Accordingly, it is not clearly improbable that the weapon was

connected to the offense. See id. The district court’s application of

§ 2D1.1(b)(1) was not clearly erroneous.

AFFIRMED.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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