United States Court of Appeals

for the Fifth Circuit

No. 20-50570

United States of America, 

Plaintiff—Appellee,

versus

Kyle Leroy Myers, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:20-CR-10-1

Before Stewart, Ho, and Engelhardt, Circuit Judges.

Per Curiam:*

Kyle Leroy Myers appeals the 365-month within-guidelines sentence 

imposed by the district court following his guilty plea convictions of 

conspiracy to possess with intent to distribute 50 grams or more of actual 

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and 

possession with intent to distribute 50 grams or more of actual 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 27, 2021

Lyle W. Cayce

Clerk

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methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Myers 

challenges the district court’s drug quantity determination and its application 

of a firearm enhancement under U.S.S.G. § 2D1.1(b)(1). He also argues that 

his sentence is substantively unreasonable. Because Myers has failed to show

that the district court committed procedural or substantive error in imposing 

his sentence, we AFFIRM.

I. Facts & Procedural Background

On December 12, 2019, law enforcement observed a vehicle occupied 

by three individuals arrive at a residence that was believed to be involved in 

the trafficking of methamphetamine. Officers later conducted a traffic stop 

of the vehicle. While retrieving a jacket from the vehicle for the driver, an 

officer observed a loaded pistol on the rear passenger floorboard. During a 

subsequent search of the vehicle, officers located a purse in the front 

passenger side of the vehicle where one of the occupants, Tiffany Sutton, had 

been seated. The purse contained approximately 18.5 grams of heroin and 

15.6 grams of methamphetamine. Sutton claimed ownership of the purse but 

denied owning the drugs inside. She was arrested and remains in federal 

custody today. 

After additional investigation, law enforcement learned that Sutton 

received the heroin and methamphetamine from her roommate, Kyle Myers, 

who resided in a recreational vehicle (“RV”) in Odessa, Texas. Officers 

obtained and executed a search warrant of the RV on December 13, 2019. 

During the search of the RV, Myers was detained along with another person 

inside, Brandy Dean. The search resulted in the seizure of approximately 

1,290 grams of methamphetamine, 521 grams of heroin, a pistol, ammunition, 

and $21,456 in currency. Officers also recovered packaging materials, digital 

scales, and detailed ledgers of drug transactions. Myers was arrested and

remains in federal custody today.

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After Sutton was arrested, she pled guilty to one count of conspiracy 

to possess with intent to distribute 50 grams or more of actual 

methamphetamine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and one count 

of possession with intent to distribute five grams or more of actual 

methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(B). The district court 

imposed a two-level dangerous weapon enhancement pursuant to 

U.S.S.G. § 2D1.1(b)(1) for the pistol found on the floorboard of the vehicle 

subjected to the December 12th traffic stop and sentenced Sutton at the 

bottom of the guidelines range to concurrent terms of 168 months’ 

imprisonment, to be followed by concurrent five-year terms of supervised 

release. Thereafter, she appealed her sentence urging error with respect to 

the dangerous weapon enhancement and other related sentencing issues. See 

No. 20-50597, United States v. Sutton, 2021 WL 3276524, at *1 (5th Cir. July 

30, 2021). A panel of this court has now vacated the district court’s 

imposition of the dangerous weapon enhancement to Sutton’s sentence and 

remanded for resentencing. Id. at *4. 

At Myers’srearraignment, the Government orally set forth hisfactual 

basis using the factual resume that Sutton had previously signed and 

submitted in support of her guilty plea. Myers denied knowledge of the pistol 

and heroin and stated that he possessed only eight ounces of 

methamphetamine. The district court explained that Myers was only 

pleading guilty to possession with intent to distribute and conspiracy to 

possess with intent to distribute 50 grams or more of methamphetamine but 

advised him that the guns and heroin could affect his guidelines calculations. 

Myers then pled guilty. 

The information in the offense conduct section of Myers’s

presentence report (“PSR”) aligned with the information that was set forth 

in Sutton’s factual resume. The PSR noted Myers’s interview with law 

enforcement where he admitted to obtaining drugs and storing them in his 

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RV, denied selling drugs other than methamphetamine, and stated that 

Sutton sold drugs but not for him. The probation officer converted the

$21,456 in currency that was found in Myers’s residence to 2.5 kilograms of 

actual methamphetamine. The PSR held Myers accountable for 76,600.26 

kilograms of converted drug weight, resulting in a base offense level of 36. 

The PSR assessed a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for 

possession of a firearm during his drug trafficking offenses and applied a 

three-level reduction for acceptance of responsibility. Myers’s total offense 

level of 35 and criminal history category of VI yielded a guidelines range of 

292 to 365 months’ imprisonment.

Myers objected to the drug quantity calculations and firearm 

enhancement. In response, the probation officer prepared an addendum that 

recommended denying Myers’s objections because the district court could 

consider his relevant conduct under U.S.S.G. § 1B1.3(a)(1)-(2). This

included reasonably foreseeable acts of a coconspirator subject to the 

limitations set forth in the Guidelines and information in the PSR that had 

been obtained from investigative reports, Sutton’s factual resume, and 

Myers’s oral factual basis. Myers renewed his objections at sentencing and 

the district court overruled them. It then found that the PSR was accurate 

and adopted it. The district court denied Myers’s request for a downward 

variance and sentenced him to concurrent terms of 365 months’

imprisonment and concurrent five-year terms of supervised release. Myers 

filed this appeal.

II. Standard of Review

We engage in a bifurcated review of the sentence imposed by a district 

court. See Gall v. United States, 552 U.S. 38, 51 (2007). We first consider 

whether the district court committed a “‘significant procedural error,’ such 

as miscalculating the advisory Guidelines range.” United States v. Odom, 694 

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F.3d 544, 547 (5th Cir. 2012) (citation omitted). If there is no procedural 

error, or if any such error is harmless, “this court may proceed to the second 

step and review the substantive reasonableness of the sentence imposed for 

an abuse of discretion.” Id. 

For preserved claims of procedural error, we review the district 

court’s application of the Sentencing Guidelines de novo and its factual 

findings for clear error. See United States v. Gomez-Alvarez, 781 F.3d 787, 791 

(5th Cir. 2015). “[I]n determining whether an enhancement applies, a district 

court is permitted to draw reasonable inferences from the facts, and these 

inferences are fact-findings reviewed for clear error as well.” United States v. 

Ramos-Delgado, 763 F.3d 398, 400 (5th Cir. 2014) (internal quotation marks 

and citation omitted). A factual finding is not clearly erroneous if it is 

plausible given the entire record, even if the reviewing court “would have 

weighed the evidence differently and made a different finding.” United States 

v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (internal quotation marks and 

citation omitted). Conversely, a factual-finding is clearly erroneous if the 

court’s “review of all the evidence leaves [it] with the definite and firm 

conviction that a mistake has been committed.” Id. (internal quotation marks 

and citation omitted). 

A district court may adopt the facts in a PSR without additional 

inquiry “if those facts have an adequate evidentiary basis with sufficient 

indicia of reliability and the defendant does not present rebuttal evidence or 

otherwise demonstrate that the information in the PSR is unreliable.” United 

States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007) (internal quotation marks 

and citation omitted). The defendant has the burden to demonstrate that the 

PSR’s information is “materially untrue, inaccurate, or unreliable.” United 

States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (citation omitted). “Mere 

objections to such supported facts are generally insufficient.” Id.

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III. Discussion

On appeal Myers argues that: (1) the district court reversibly erred in 

its calculation of the drug quantity attributed to him, (2) the district court 

reversibly erred in imposing a firearm enhancement under U.S.S.G. 

§ 2D1.1(b)(1), and (3) the sentence imposed is substantively unreasonable. 

We address each argument in turn.

A. Drug Quantity 

Myers first argues that the district court erred in calculating the drug 

quantities attributed to him. We disagree. The district court’s drug quantity 

determinations, including its determination that the currency represented 

drug proceeds, are factual findings that we review for clear error when 

preserved.

1 United States v. Barry, 978 F.3d 214, 218 (5th Cir. 2020). When a 

defendant is convicted of a drug-trafficking crime, his base offense level is 

determined by the quantity and type of drugs involved in the offense. See 

United States v. Rhine, 583 F.3d 878, 885 (5th Cir. 2009); 

U.S.S.G. § 2D1.1(a)(5), (c). “[T]he base offense level can reflect quantities 

of drugs not specified in the count of conviction if they were” derived from

relevant conduct, Rhine, 583 F.3d at 885, meaning they were “part of the 

same course of conduct or common scheme or plan as the offense of 

conviction.” U.S.S.G. § 1B1.3(a)(1)-(2).

“Where there is no drug seizure or the amount seized does not reflect 

the scale of the offense, the court shall approximate the quantity of the 

controlled substance.” Id. at § 2D1.1, comment.(n.5). The district court may 

extrapolate drug “quantity from any information that has sufficient indicia of 

reliability to support its probable accuracy,” including a law enforcement 

1 Myers objected to paragraph 8 of the PSR holding him responsible for 76,600 

kilograms of converted drug weight, thus preserving this error for appellate review.

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agent’s approximation and hearsay evidence. United States v. Valdez, 453 

F.3d 252, 267 (5th Cir. 2006) (internal quotation marks and citation omitted). 

As relevant here, the district court may convert cash into drug quantities 

based upon a determination that the cash represented proceeds of drug 

transactions. See United States v. Johnston, 127 F.3d 380, 403 (5th Cir. 1997); 

see also U.S.S.G. § 2D1.1, comment. (n.5) (noting that, in approximating the 

drug quantity, the court may consider the price generally obtained for the 

controlled substance, as well as financial and other records). Factors to be 

considered in determining whether cash represented proceeds of drug 

transactions include that the denominations of cash were consistent with 

drug sales, that the defendant had presented an incredible explanation for 

possession of the currency, and that the defendant was unemployed with no 

apparent source of legal income. United States v. Fitzgerald, 89 F.3d 218, 223–

24 (5th Cir. 1996).

Here, the information in the PSR was based on sufficiently reliable 

evidence for the district court to conclude that Myers was supplying Sutton 

with methamphetamine and heroin, and that they lived together in an RV.2

This information was included in Sutton’s factual resume and she swore 

under oath that the information in it was true. See United States v. Rico, 864 

F.3d 381, 384–86 (5th Cir. 2017) (noting that the PSR and addendum 

established that the challenged information was provided by a coconspirator

and “[s]tatements by coconspirators are sufficiently reliable to form the basis 

of a finding”). Moreover, Myers has failed to present reliable evidence 

2 In his reply brief, Myers challenges the Government’s assertion that his and 

Sutton’s residence was an RV. However, he did not argue in the district court that his 

residence was not an RV and his defense counsel referred to the residence as a trailer

multiple times during sentencing. Accordingly, the information before the district court 

was sufficient to establish that Myers’s residence was an RV.

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establishing that the information in the PSR and Sutton’s sworn testimony 

were “materially untrue, inaccurate, or unreliable.” Harris, 702 F.3d at 230. 

As stated, the RV contained $21,456 in cash, distribution quantities of 

methamphetamine and heroin, drug packaging materials, ledgers 

documenting drug sales, a loaded firearm, and ammunition. Myers does not 

identify a plausible legal explanation for his or Sutton’s individual or joint 

possession of such a large sum of cash.

3 Although Myers implies that the 

currency may have belonged to Dean,4 he provides no evidence that she 

resided in the RV with him and Sutton and proffers no legitimate reason for 

her to carry such a large amount of cash. See Barry, 978 F.3d at 218–19. Based 

on the foregoing evidence, the district court could have plausibly inferred 

that the cash constituted drug proceeds and that the amount of drugs seized 

did not sufficiently reflect the scope of the conspiracy. Id. at 218. 

Accordingly, we hold that the district court did not err in calculating the drug 

quantities attributable to Myers. 

Myers’s second argument that he should only be held responsible for 

the eight ounces of methamphetamine that he admitted to possessing also 

falls short. Possession of a controlled substance may be proven by either 

direct or circumstantial evidence, may be actual or constructive, and may be 

joint with others. United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th 

Cir. 2008). “Constructive possession is ownership, dominion, or control 

over the contraband itself or dominion or control over the premises in which 

the contraband is concealed.” United States v. Fells, 78 F.3d 168, 170 (5th Cir. 

1996) (internal quotation marks, emphasis, and citation omitted).

3 At the time of the search, Myers was earning $13 per hour, which would yield

approximately $27,000 per year for full-time employment.

4 Dean was not charged in the instant offense. 

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Here, there was sufficient evidence in the record for the district court 

to plausibly conclude that Myers supplied Sutton, his coconspirator, with 

methamphetamine and heroin, and that Myers and Sutton lived together in 

the RV where the methamphetamine, heroin, and drug proceeds were seized 

pursuant to the search warrant. Although Dean may have been present in the 

RV when officers arrived to execute the search warrant, she was not charged. 

The charged drug conspiracy in this case consisted only of Myers and Sutton. 

Given this evidence, the district court could have plausibly concluded that 

Myers possessed all of the seized drugs and drug proceedsin the RV, and that 

his possession was in furtherance of the drug conspiracy to which he pled 

guilty. See Barry, 978 F.3d at 218–20; United States v. Cooper, 274 F.3d 230, 

238 (5th Cir. 2001) (“The quantity includes the drugs for which the 

defendant is directly responsible and the drugs that can be attributed to him 

in a conspiracy as relevant conduct.”); United States v. Betancourt, 422 F.3d 

240, 246 (5th Cir. 2005) (affirming the district court’s drug quantity relevant 

conduct calculation because it was plausible in light of the record as a whole); 

see also U.S.S.G. § 1B1.3(a)(1)(A), (B) (stating relevant conduct includes 

defendant’s actions during commission of the offense, as well as relevant 

conduct in a jointly undertaken criminal activity that is “within the scope,” 

“in furtherance of,” and “reasonably foreseeable in connection with” the 

conspiracy). For these reasons, we conclude that the district court did not err 

in holding Myers accountable for the drugs and drug proceeds found in the 

RV.

5

5 We do not address Myers’s arguments relating to the items seized as a result of 

the December 12 traffic stop, see U.S.S.G. § 2D1.1(a)(5), (c)(2) (drug quantity table), 

because Myers’s base offense level of 36 was not affected by the quantities of drugs found 

in Sutton’s purse or the firearm found in the vehicle.

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B. Firearm Enhancement

Whether the defendant possessed a dangerous weapon is a factual

finding that is reviewed for clear error. See United States v. Ruiz, 621 F.3d 

390, 396 (5th Cir. 2010). An argument that “does not concern the specifics 

of the factfinding, but, rather, whether the facts found are legally sufficient to 

support the enhancement,” is reviewed de novo. United States v. ZapataLara, 615 F.3d 388, 390 (5th Cir. 2010). Myers advances both factual and 

legal challenges to the enhancement.

Section 2D1.1(b)(1) provides that, if “a dangerous weapon (including 

a firearm) was possessed, increase by 2 levels.” U.S.S.G. § 2D1.1(b)(1). The 

commentary provides that the enhancement applies “if the weapon was 

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

the offense.” Id. at § 2D1.1, comment. (n.11(A)). The Government can take 

two approaches in proving the applicability of this enhancement. United 

States v. Marquez, 685 F.3d 501, 507 (5th Cir. 2012). “First, the 

[G]overnment can prove that the defendant personally possessed the weapon 

by showing that a temporal and spatial relation existed between the weapon, 

the drug trafficking activity, and the defendant.” United States v. Hooten, 942 

F.2d 878, 882 (5th Cir. 1991). Under this approach, “the [G]overnment must 

provide evidence that the weapon was found in the same location where 

drugs or drug paraphernalia are stored or where part of the transaction 

occurred.” Id. Second, “when another individual involved in the commission 

of an offense possessed the weapon, the [G]overnment must show that the 

defendant could have reasonably foreseen that possession.” Id. 

Myers disclaims knowledge or ownership of the pistol found in the 

RV. However, given the small size of the RV and the nature of the items 

found in the RV with the firearm, the district court could have plausibly 

found that the RV constituted the situs of Myers and Sutton’s drug 

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trafficking conspiracy. Id. Furthermore, considering that Dean was never 

charged in the conspiracy with Sutton and Myers, the district court could 

plausibly conclude that the firearm more likely belonged to Myers rather than 

to Dean. See United States v. King, 773 F.3d 48, 54 (5th Cir. 2014) (upholding 

application of the U.S.S.G. § 2D1.1(b)(1) enhancement because although the 

defendant “shared the residence with his wife, there is no indication that she 

was involved in any drug activity”). Myers advances no discernible argument 

to establish that it was clearly improbable that the firearm was connected to 

his drug trafficking offenses after the Government established his possession. 

See Ruiz, 621 F.3d at 396; U.S.S.G. § 2D1.1(b)(1), comment. (n.11(A)). For 

these reasons, we hold that the district court did not err in imposing the 

U.S.S.G. § 2D1.1(b)(1) firearm enhancement based on the pistol found in the 

RV.6

C. Substantive Reasonableness

Finally, Myers contends that his 365-month sentence is substantively 

unreasonable. Because Myers argued that a within-guidelines sentence was 

unreasonable at sentencing, we review his substantive reasonableness 

challenge for abuse of discretion. See Holguin-Hernandez v. United States, 140 

S. Ct. 762, 766–67 (2020). Thus, the relevant question here is whether the 

district court “abused [its] discretion in determining that the [18 U.S.C.] 

6 Because we have held that the district court did not err in its determination that 

Myers possessed the firearm found in the RV and we can affirm the U.S.S.G. § 2D1.1(b)(1)

enhancement on that basis, we need not address Myers’s arguments pertaining to the 

firearm found in the vehicle that was subjected to the traffic stop. Likewise, because a panel 

of this court vacated the firearm enhancement in Sutton’s appeal, and her appeal involved 

only the firearm found in the vehicle that was subjected to the traffic stop, the disposition 

of Sutton’s appeal has no bearing on our disposition of Myers’s appeal. See Sutton, 2021 

WL 3276524, at *4. 

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§ 3553(a) factors supported the sentence imposed.” Id. at 766 (internal 

quotation marks and citation omitted).

As a preliminary matter, Myers’s 365-month within-guidelines 

sentence is presumptively reasonable. See United States v. Hernandez, 876 

F.3d 161, 166 (5th Cir. 2017). The presumption of reasonableness “is 

rebutted only upon a showing that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th 

Cir. 2009). Here, the district court listened to defense counsel’s arguments 

in favor of a downward variance, Myers’s allocution, and the Government’s 

response in opposition to the downward variance. As support for a withinguidelines sentence, the Government cited Myers’s conviction for drug 

conspiracy, the scope of the conspiracy, and the nature and extent of his 

criminal history. It further stated that aside from the relevant conduct, eight 

ounces of methamphetamine is still a significant amount. The district court 

agreed with the Government. Myers offers no support for his argument that 

the district court failed to consider a factor that should have received 

significant weight or gave significant weight to an irrelevant or improper 

factor. See United States v. Maes, 961 F.3d 366, 379 (5th Cir. 2020); Cooks, 

589 F.3d at 186. Furthermore, the district court’s sentencing decision is 

entitled to deference, and this court may not reweigh the 18 U.S.C. § 3553(a) 

factors or reverse a sentence even if it reasonably could conclude that a 

different sentence was proper. See Gall, 552 U.S. at 51; see also Hernandez, 

876 F.3d at 166. Myers’s disagreement with the district court’s denial of his 

request for a downward variance does not rebut the presumption of 

reasonableness that attaches to his within-guidelines sentence. See 

Hernandez, 876 F.3d at 166–67. Accordingly, he fails to establish that the 

district court imposed a substantively unreasonable sentence. See id. at 167.

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IV. Conclusion

For the foregoing reasons, the district court’s judgment is 

AFFIRMED.

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