United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-20338 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Arturo Garza, Jr., 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:21-CR-298-1 

______________________________ 

Before Richman, Chief Judge, and Stewart and Dennis, Circuit 

Judges.

Per Curiam:*

Arturo Garza, Jr., pleaded guilty to possession of a firearm by a felon 

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Garza argues that the 

district court erred at sentencing by applying U.S.S.G. § 2K2.1(a)(4)(B), 

which imposes an elevated base offense level if the offense involved in 

relevant part “a semiautomatic firearm that is capable of accepting a large 

_____________________ 

*

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

United States Court of Appeals 

Fifth Circuit 

FILED 

June 9, 2023 

Lyle W. Cayce 

Clerk 

Case: 22-20338 Document: 00516781237 Page: 1 Date Filed: 06/09/2023
No. 22-20338 

2 

capacity magazine.”1 Garza also argues the district court erred by applying 

§ 2K2.1(b)(6)(B), which imposes a sentence enhancement if the defendant 

“used or possessed any firearm or ammunition in connection with another 

felony offense.”2

 Because the district court erred in applying both, we vacate 

Garza’s sentence and remand to the district court for resentencing. 

I 

In December 2020, officers with the Houston Police Department 

attempted to arrest Garza on several outstanding warrants. Garza was taken 

into custody after being confronted by officers and fleeing from his vehicle. 

Once back at Garza’s vehicle, officers recovered a semiautomatic pistol; a 

100-round magazine, located in the front passenger seat; 19.92 grams of 

Oxycodone, located in the center console’s cupholder; 7.2 grams of 

marijuana, located in between the driver’s seat and the center console; and a 

ski mask. 

The presentence report (PSR) provided that Garza’s base offense 

level should be elevated to 20 under U.S.S.G. § 2K2.1(a)(4)(B) because 

Garza is a “prohibited person” and “the offense involved a semiautomatic 

firearm that had in close proximity a magazine that was capable of accepting 

a large capacity magazine (more than 15 rounds of ammunition) specifically 

100 rounds.” The PSR also recommended a four-level enhancement under 

§ 2K2.1(b)(6)(B) because Garza possessed the firearm in connection with 

another felony offense, specifically “possession of a controlled substance.” 

With a total offense level of 25, and a criminal history category of III, Garza’s 

advisory guidelines range was 70 to 87 months of imprisonment. 

_____________________ 

1

 U.S.S.G. § 2K2.1(a)(4)(B)(i)(I). 

2

 U.S.S.G. § 2K2.1(b)(6)(B). 

Case: 22-20338 Document: 00516781237 Page: 2 Date Filed: 06/09/2023
No. 22-20338 

3 

Garza filed a written objection to the four-level enhancement under 

§ 2K2.1(b)(6)(B), arguing there was no evidence that he possessed the 

firearm in connection with the offense of felony possession of a controlled 

substance. He did not object to the elevated base offense level under 

§ 2K2.1(a)(4)(B). The Government responded that the enhancement 

applied because of the firearm’s close proximity to the drugs, which 

supported the firearm’s potential of facilitating another felony offense. 

Garza replied that proximity was insufficient for the application of this 

enhancement if the other offense involves drug possession alone. The 

probation officer maintained that the enhancement should apply under this 

court’s precedent. 

At the sentencing hearing, the district court denied Garza’s objection 

to the four-level enhancement under § 2K2.1(b)(6)(B) because “the firearm 

was present next to the drugs and facilitated possession of the drugs.” The 

district court adopted the PSR and sentenced Garza within the advisory 

guidelines range to 75 months of imprisonment (reduced from 87 months to 

account for the time Garza spent in federal custody), to be served 

concurrently with any state sentence imposed, three years of supervised 

release, and a $100 special assessment. Garza filed a timely notice of appeal. 

II 

Garza first argues the district court erred in applying the four-level 

enhancement under § 2K2.1(b)(6)(B) for possession of a firearm in 

connection with another felony offense. Because the district court clarified 

that the other felony offense employed in its enhancement calculus was drug 

possession,3

 and because the only evidence offered by the Government as to 

_____________________ 

3 See United States v. Juarez, 626 F.3d 246, 253 n.16 (5th Cir. 2010) (noting that 

“the initial step in evaluating a § 2K2.1(b)(6) enhancement is to ‘first identify the other 

Case: 22-20338 Document: 00516781237 Page: 3 Date Filed: 06/09/2023
No. 22-20338 

4 

whether Garza possessed the firearm in connection with the alleged drug 

possession was the firearm’s close proximity to the drugs, the district court 

erred in applying the enhancement. 

When, as here, a challenge is preserved, this court reviews the district 

court’s interpretation and application of the Sentencing Guidelines de novo 

and its factual findings for clear error.4

 “A district court’s determination that 

a firearm was used or possessed in connection with another felony offense for 

purposes of U.S.S.G. § 2K2.1(b)(6)(B) is a factual finding that is reviewed 

for clear error.”5

 In deciding whether to apply an enhancement, “a district 

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

inferences are fact-findings reviewed for clear error as well.”6

 “A factual 

finding is not clearly erroneous if it is plausible considering the record as a 

whole.”7

First, Garza argues the district court erred in solely relying on 

proximity and simultaneous possession of a “small amount” of drugs and a 

firearm in a vehicle to apply the § 2K2.1(b)(6)(B) enhancement. He argues 

that the cases the PSR relied on, United States v. Washington8

 and United 

States v. Condren,

9

 are no longer good law in light of additions made to 

_____________________ 

felony employed in the district court’s enhancement calculus’” (quoting United States v. 

Condren, 18 F.3d 1190, 1194 (5th Cir. 1994))). 

4 United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). 

5 United States v. Bass, 996 F.3d 729, 742 (5th Cir. 2021) (citing United States v. 

King, 773 F.3d 48, 52 (5th Cir. 2014)). 

6 United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). 

7 United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (quoting United States 

v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010)). 

8

 340 F.3d 222 (5th Cir. 2003). 

9

 18 F.3d 1190 (5th Cir. 1994). 

Case: 22-20338 Document: 00516781237 Page: 4 Date Filed: 06/09/2023
No. 22-20338 

5 

relevant commentary to § 2K2.1. He argues that this court should look 

instead to United States v. Jeffries,

10 in which this court explained that under 

§ 2K2.1(b)(6)(B) there is “no automatic conclusion” that the enhancement 

applies in cases in which the other felony offense is drug possession “just 

because” the firearm and drugs “are located in the same vehicle.”11 The 

Government argues that Jeffries is distinguishable for several reasons. It 

points out that, in Jeffries, the drug quantity was significantly lower than what 

was recovered in this case, and, in this case, the drugs and firearm were in 

close proximity and there was evidence of current or recent drug distribution 

or sales by Garza. The Government argues that these facts support the 

district court’s finding that the firearm facilitated Garza’s drug possession. 

It argues in the alternative that we should affirm because the record supports 

an implicit finding that the other felony offense was drug trafficking because 

Garza had a history of drug distribution, the drug quantity here was not 

consistent with personal use, and Garza claimed only occasional monthly use 

of Oxycodone. 

Section 2K2.1(b)(6)(B) provides that the offense level for a firearm 

offense should be increased by four levels if the defendant “used or possessed 

any firearm . . . in connection with another felony offense.”12 According to 

the commentary, “‘[a]nother felony offense’ . . . means any federal, state, or 

local offense . . . punishable by imprisonment for a term exceeding one year, 

regardless of whether a criminal charge was brought, or a conviction 

obtained.”13 In general, the enhancement applies if the firearm facilitated, or 

_____________________ 

10 587 F.3d 690 (5th Cir. 2009). 

11 Id. at 692-93. 

12 U.S.S.G. § 2K2.1(b)(6)(B). 

13 U.S.S.G. § 2K2.1 cmt. n.14(C). 

Case: 22-20338 Document: 00516781237 Page: 5 Date Filed: 06/09/2023
No. 22-20338 

6 

had the potential of facilitating, another felony offense, such as drug 

possession.14 But, specifically when the other felony offense is a drug 

trafficking offense and a firearm is found in close proximity to drugs or drug 

paraphernalia, application of the enhancement is “warranted because the 

presence of the firearm has the potential of facilitating another felony 

offense.”15 Thus, in the context of drug trafficking offenses under Note 

14(B), the evidence need not satisfy the facilitation standard applicable under 

Note 14(A) for other types of felony offenses.16 In Jeffries, this court 

explained that the § 2K2.1(b)(6)(B) enhancement “automatically applies” if 

the other felony offense is a drug trafficking offense in which a firearm is 

found in close proximity to drugs.17 But the Jeffries court held that Note 

14(A), rather than Note 14(B)(ii), applied to the defendant because he had no 

history of recent drug distribution or sales and he possessed only a single rock 

of crack cocaine.18 Applying Note 14(A), this court determined that the 

Government failed to show by a preponderance of evidence that the firearm 

facilitated or had the potential to facilitate the defendant’s drug possession; 

_____________________ 

14 U.S.S.G. § 2K2.1 cmt. n.14(A); see also United States v. Juarez, 626 F.3d 246, 253 

(5th Cir. 2010) (setting out the facilitation test for non-drug-trafficking felonies). 

15 U.S.S.G. § 2K2.1 cmt. n.14(B)(ii). 

16 See United States v. Alcantar, 733 F.3d 143, 147 n.6 (5th Cir. 2013) (citing Juarez, 

626 F.3d at 253). 

17 United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009) (citing U.S.S.G. 

§ 2K2.1 cmt. n.14(B)(ii)). 

18 See id. at 693-95; see also United States v. Eaden, 914 F.3d 1004, 1008-09 & n.2 

(5th Cir. 2019) (explaining that the Note 14(B)(ii) presumption of facilitation applies when 

the other felony offense is drug trafficking but not when the other felony offense is drug 

possession). 

Case: 22-20338 Document: 00516781237 Page: 6 Date Filed: 06/09/2023
No. 22-20338 

7 

thus, the district court there clearly erred in applying the § 2K2.1(b)(6)(B) 

enhancement.19

Here, the district court clearly erred in finding that the firearm 

facilitated or had the potential of facilitating Garza’s possession of the drugs. 

Garza correctly notes that the cases on which the probation officer relied, 

Washington and Condren, were decided before additions to the relevant 

commentary provided a definition for the phrase “in connection with,” 

setting forth the facilitation standards under Notes 14(A) and 14(B)(ii).20 

Additionally, the other felony employed in the district court’s enhancement 

calculus was drug possession, not drug trafficking. At sentencing, the district 

judge stated that “the firearm was present next to the drugs” and concluded 

this “facilitated possession of the drugs,” abandoning an earlier statement that 

the firearm “potentially facilitat[ed] the crime of possession of illegal drugs 

or possession with intent to distribute illegal drugs.” Although the district court 

also adopted the PSR, the PSR does not allege that Garza possessed the 

firearm in connection with a drug trafficking offense, but instead, only 

“possession of a controlled substance.”21 Furthermore, no evidence was 

presented that Garza was involved in drug trafficking at the time of the 

_____________________ 

19 Jeffries, 587 F.3d at 695; see also United States v. Sealy, 661 F. App’x 278, 282 (5th 

Cir. 2016) (per curiam) (unpublished) (holding that the enhancement did not apply because 

there was no evidence the defendant was a drug trafficker and no evidence other than 

proximity to the drugs that the defendant possessed a firearm in connection with drug 

possession). 

20 Compare U.S.S.G. § 2K2.1 cmt. n.14 (2006), with U.S.S.G. § 2K2.1 (2004). See 

Jeffries, 587 F.3d at 692-93; Juarez, 626 F.3d at 253; U.S.S.G. § 2K2.1 cmt. n.14(A) & (B). 

21 United States v. Condren, 18 F.3d 1190, 1194-95 (5th Cir. 1994) (explaining that 

the other felony offense was either drug distribution, based on the district court adopting 

the finding in the PSR that “[t]he defendant was in possession of a firearm while involved 

in the distribution of crack/cocaine,” or drug possession, based on the district court’s 

finding at sentencing that the defendant possessed the firearm “at the same time that . . . he 

was possessing controlled substances”). 

Case: 22-20338 Document: 00516781237 Page: 7 Date Filed: 06/09/2023
No. 22-20338 

8 

instant offense and, in state court, Garza was charged with possession of a 

controlled substance, not with a drug trafficking offense. 

Therefore, the enhancement is proper only if it is plausible in view of 

the record as a whole that Garza’s firearm possession facilitated his alleged 

drug possession under the standard set forth in 14(A).22 Here, the loaded 

firearm was found in plain view on the passenger seat of the vehicle, and the 

drugs were found in the center console and cupholder area; but no other 

evidence of drug trafficking was found. Although the firearm was found in 

close proximity to the drugs in the vehicle, mere proximity is not sufficient 

to support an enhancement under the standard in 14(A).23 The record 

suggests that the district court relied almost exclusively on the gun’s 

proximity to the drugs, as it placed particular emphasis on the photograph of 

the vehicle’s interior. Because the Government merely showed that Garza 

possessed the drugs and firearm at the same time,24 we conclude the district 

court erred in applying the § 2K2.1(b)(6)(B) enhancement. 

Garza further argues that the district court’s error in calculating the 

guidelines range was not harmless. When a significant procedural error 

occurs at sentencing, remand for resentencing is required unless the error 

_____________________ 

22 See Jeffries, 587 F.3d at 693; see also United States v. Le, 512 F.3d 128, 134 (5th 

Cir. 2007) (noting that this court may affirm on any basis supported by the record). 

23 See Eaden, 914 F.3d at 1008-09 & n.2 (“In this circuit, there is . . . no 

presumption of facilitation when the defendant possesses a firearm along with only user 

amounts of narcotics.”); see also Jeffries, 587 F.3d at 693-95; United States v. Ledesma, 750 

F. App’x 344, 347-49 (5th Cir. 2018) (unpublished) (vacating the defendant’s sentence 

because the district court’s finding that the defendant’s possession of the gun facilitated 

his drug possession was based only on evidence of simultaneous possession); Sealy, 661 F. 

App’x at 282 (vacating sentence because there was no evidence, other than proximity to 

the drugs, establishing that the defendant possessed a firearm in connection with drug 

trafficking or drug possession). 

24 See Jeffries, 587 F.3d at 693. 

Case: 22-20338 Document: 00516781237 Page: 8 Date Filed: 06/09/2023
No. 22-20338 

9 

was harmless.25 To establish harmless error, the proponent of the sentence 

must convincingly demonstrate that the sentence would have been the same 

absent the error.26 In the instant case, the Government does not argue that 

the district court would have imposed the same sentence absent the alleged 

error. In his reply brief, Garza argues that because the Government did not 

show the error was harmless, it forfeited this argument on appeal. However, 

this court can, in its discretion, consider harmless error sua sponte.27 With 

the enhancement, Garza’s advisory guidelines range was 70 to 87 months of 

imprisonment. Without the enhancement, his total offense level would have 

been 21 and his advisory guidelines range would have been 46 to 57 months 

of imprisonment.28 The district court sentenced Garza to 87 months of 

imprisonment, with credit for 12 months that he spent in federal custody. 

Because the record does not reflect that the district court would have 

imposed the same sentence even if the guidelines range had been 46 to 57 

months of imprisonment, the alleged error is not harmless.29 We therefore 

vacate Garza’s sentence and remand for resentencing. 

III 

Garza also challenges the district court’s application of the elevated 

base offense level under U.S.S.G. § 2K2.1(a)(4)(B). He argues that the 

_____________________ 

25 United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir. 2009). 

26 United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011). 

27 See United States v. Groce, 784 F.3d 291, 296 n.2 (5th Cir. 2015), superseded by 

regulation on other grounds as stated in United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 

2018). 

28 See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). 

29 See Johnson, 648 F.3d at 278-80. 

Case: 22-20338 Document: 00516781237 Page: 9 Date Filed: 06/09/2023
No. 22-20338 

10 

Government presented no evidence demonstrating the firearm and magazine 

were compatible. 

Because Garza did not raise this argument in the district court, this 

court’s review is limited to plain error.30 To show plain error, Garza must 

show the forfeited error is clear or obvious and affects his substantial rights.31 

If Garza makes such a showing, this court has the discretion to correct the 

error if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.32

Section 2K2.1(a)(4)(B) provides for an elevated base offense level of 

20 if the offense involved a “semiautomatic firearm that is capable of 

accepting a large capacity magazine” and the defendant was a “prohibited 

person” at the time of the offense.33 The Sentencing Guidelines commentary 

defines a “semiautomatic firearm that is capable of accepting a large capacity 

magazine” as “a semiautomatic firearm that has the ability to fire many 

rounds without reloading because at the time of the offense . . . a magazine or 

similar device that could accept more than 15 rounds of ammunition” was 

either attached to the firearm or in close proximity to it.34 In United States v. 

Luna-Gonzalez,

35 this court determined the Government failed to present 

evidence to meet its burden of showing the large-capacity magazine was 

compatible with the appellant’s firearm.36 The court found the 

_____________________ 

30 See Puckett v. United States, 556 U.S. 129, 135 (2009). 

31 Id.

32 Id.

33 U.S.S.G. § 2K2.1(a)(4)(B). 

34 U.S.S.G. § 2K2.1 cmt. n.2. 

35 34 F.4th 479 (5th Cir. 2022). 

36 Id. at 480-81 

Case: 22-20338 Document: 00516781237 Page: 10 Date Filed: 06/09/2023
No. 22-20338 

11 

Government’s unsworn response to the appellant’s written objections was 

not sufficient to meet its burden of proof.37 Following Luna-Gonzalez, this 

court has found the Government’s failure to present evidence that the 

firearm and magazine were compatible for purposes of § 2K2.1(a)(4)(B) 

constituted plain error, and this court exercised its discretion to correct the 

error.38 In this case, the PSR provided that the elevated base offense level 

was applicable because the semiautomatic firearm was in close proximity to 

a magazine capable of accepting a large capacity magazine. In response to 

Garza’s PSR objections, the Government stated that “the firearm was loaded 

with a 100 round magazine.” However, the Government’s unsworn 

response was not sufficient to meet its burden of proof,39 and the 

Government did not present evidence to demonstrate the firearm and 

magazine were compatible. The Government concedes on appeal that it did 

not present any evidence in the district court and that the PSR did not state 

that the firearm and magazine were attached or compatible. The 

Government also concedes that the photograph of the firearm and magazine 

on the car’s passenger seat does not show whether the firearm and magazine 

were attached or were merely next to each other. Because the Government 

did not present any evidence to demonstrate the firearm and magazine were 

compatible, the district court made a clear and obvious error in imposing the 

elevated base offense level under § 2K2.1(a)(4)(B).40

When, as here, “the record is silent as to what the district court might 

have done had it considered the correct Guidelines range, the court’s reliance 

_____________________ 

37 Id. at 480. 

38 See United States v. Romero, No. 21-50485, 2022 WL 3584873, at *2 (5th Cir. 

Aug. 22, 2022) (per curiam) (unpublished). 

39 See Luna-Gonzalez, 34 F.4th at 480. 

40 See id. at 480-81; see also Romero, 2022 WL 3584873, at *2. 

Case: 22-20338 Document: 00516781237 Page: 11 Date Filed: 06/09/2023
No. 22-20338 

12 

on an incorrect range in most instances will suffice to show an effect on the 

defendant’s substantial rights.”41 The district court’s error affected Garza’s 

substantial rights because it increased his offense level and his advisory 

guidelines range.42 The Supreme Court has held that “[i]n the ordinary 

case . . . the failure to correct a plain Guidelines error that affects a 

defendant’s substantial rights will seriously affect the fairness, integrity, and 

public reputation of judicial proceedings.”43

Conceding plain error, the Government asks this court for the 

opportunity to present additional evidence on remand to support the 

application of the elevated base offense level. It asserts that Garza confirmed 

the semiautomatic firearm was loaded when pleading guilty, he did not object 

to the Government’s statement that the firearm was loaded with a 100-round 

magazine, and he did not object to the elevated offense level in the district 

court. As this court explained in United States v. Hernandez,

44 the district 

court may consider corrections and additions relevant to the issue on 

remand.45 We therefore remand to the district court with instructions to 

permit the Government to present additional evidence as to whether the 

firearm and magazine found in Garza’s vehicle were compatible.46

_____________________ 

41 Molina-Martinez v. United States, 578 U.S. 189, 201 (2016). 

42 See id.; see also Romero, 2022 WL 3584873, at *2. 

43 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1911 (2018). 

44 48 F.4th 367 (5th Cir. 2022). 

45 Id. at 371-72 (distinguishing United States v. Chem. & Metal Indus., Inc., 677 F.3d 

750, 753 (5th Cir. 2012)). 

46 See id.; United States v. Carales-Villalta, 617 F.3d 342, 345 (5th Cir. 2010). 

Case: 22-20338 Document: 00516781237 Page: 12 Date Filed: 06/09/2023
No. 22-20338 

13 

* * * 

We VACATE Garza’s sentence and REMAND to the district court 

for resentencing consistent with this opinion. 

Case: 22-20338 Document: 00516781237 Page: 13 Date Filed: 06/09/2023