UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEITH RAY MORGAN, Defendant - Appellant. No. 18-7032 (D.C. No. 6:18-CR -00007-RAW-1) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ Defendant Keith Ray Morgan pled guilty to being a felon in poss ession of a firearm. His Presentence Invest igation Report calculated an ad visory sentencing range of thirty-seven to forty-si x months of imprisonment, base d in part on a fourlevel enhancement under U.S.S. G. § 2K2.1(b)(6)(B) for possessin g the firearm in connection with a felony drug o ffense. Defendant objected to t his enhancement, arguing that (1) the small amount of methamphetamine found in h is residence was

* After examining the briefs and appellate record, this panel ha s determined unanimously to honor the parties ’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir . R. 34.1(G). The case is ther efore submitted without oral argument. This order and judgment is not b inding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2019
Elisabeth A. Shumaker Clerk of Court2 consistent only with personal us e, not trafficki ng, (2) the met hamphetamine might have been possessed by the woman who was the sole occupant of t he residence when the search warrant was execute d, and (3) the government had fai led to show that any possession of the illegal drugs w as in connection with his poss ession of the firearm at the residence. At the sentencing hearing, the d istrict court held that the gov ernment had sufficiently supported the appli cation of this enhancement base d on extensive evidence tying Defendant to the r esidence, combin ed with eviden ce that “law enforcement located [a] five[-] gallon bucket with a strong chem ical smell that contained the necessary componen ts of a meth lab,” as well as “ residual amounts of methamphetamine and drug paraphern alia” in the residence. (R. Vol. II at 17.) In reciting the evidence tying Defe ndant to the residence, the dis trict court noted that the woman present at the residen ce at the time of the search—De fendant’s cousin— said she had only been staying there for “a couple of days.” ( Id. ) Based on all of the evidence, the court “f[ound] by a preponderance of the evidence that the defendant [wa]s appropriately held accounta ble for possessing the firearm in connection with drug manufacturing materials.” ( Id. ) The court thus overru led the objection and adopted the Presentence Investig ation Report. The court then i mposed a bottom-ofthe-guidelines sentence of thirty-seven months. Defendant raises a single issue on appeal, arguing that the cou rt erred in applying the § 2K2.1(b)(6)(B) e nhancement because the evidence was insufficient to support the inference that he ac tually manufactured methampheta mine in the3 residence. Defendant points out, for insta nce, that there was no evidence “that any of the components in the bucket were assembled into an operating l aboratory,” nor was there any evidence of “a substan ce, such as the familiar two-la yer liquid, that could have eventually produced metham phetamine.” (Appellant’s Br. at 12.) “We review the factual findings underlying a district court’s s entencing determination for clear error an d review the underlying legal c onclusions de novo .” United States v. Hooks , 551 F.3d 1205, 1216 (10th Cir. 2009). “We give due deference to the district court’ s application of the Sentencing Guidelines to the facts.” Id. at 1216–17 (internal quotation marks and brackets omitted). F or sentencing purposes, “[f]actual findings must be supported by a preponderance of the evidence.” Id. at 1217. “Clear error exists i f a factual finding is wholly w ithout factual support in the record, or after reviewing the evidence, we are definitively and firmly convinced that a mi stake has been made.” Id. (internal quotation marks omitted). Section 2K2.1(b)(6)(B) of the Sen tencing Guidelines provides in part that a four-level enhancement should be applied if the defendant “used or possessed any firearm or ammunition in connecti on with another felony offense .” For purposes of this subsection, “[a]nother fel ony offense” is defined as “any federal, state, or local offense, other than the explos ive or firearms possession or tra fficking offense, punishable by imprisonment for a term exceeding one year, regar dless of whether a criminal charge was brought, or a conviction obtained.” U.S.S. G. § 2K2.1 cmt. n.14(C). Where the other felony o ffense is a drug-trafficking offense, the application4 applies if “a firearm is found in close proximity to drugs, dru g-manufacturing materials, or drug paraphernalia.” Id. cmt. n.14(B). Even assuming for purposes of a ppeal that the evidence in this case was insufficient to establish that D efendant actually manufactured methamphetamine, we are persuaded that the district court properly applied this enh ancement. As the government points out , the attempt to manufacture methamphetami ne would also qualify as “any federal . . . offe nse . . . punishable by impri sonment for a term exceeding one year.” Id. cmt. n.14(C); see also 21 U.S.C. § 846 (“Any person who attempts or conspires to commit any offense defined in this sub chapter shall be subject to the same penalties as those prescribed for the offen se, the commission of which was the object of the atte mpt or conspiracy.”); 21 U.S.C. § 841 (setting forth lengthy terms of imprisonment fo r manufacturing methamphetamine , among other offenses). “[A] defendant need not possess a full ‘working lab’ to be conv icted of attempting to manufacture methamphetamine.” United States v. Robinson , 435 F.3d 1244, 1249 (10th Cir 2006). “Seem ingly innocuous items possess ed in particular combinations and particular cir cumstances can constitute circum stantial evidence sufficient for a jury to draw rea sonable inferences that a defe ndant took substantial steps toward the commission of t he substantive offense, i.e., m anufacturing methamphetamine.” Id. (internal quotation mark s and brackets omitted); see also,

e.g. , United States v. McGehee , 177 F. App’x 815, 820 (10t h Cir. 2006) (“Intent to manufacture methamphetamine may b e inferred from the surroundin g circumstances.5 And the substantial step require ment may be inferred where many of the materials necessary for manufacturing meth amphetamine were present.” (cit ation omitted)). In this case, we see no error, m uch less clear error, in the di strict court’s findings that the items found in t he searched residence include d a “five[-]gallon bucket with a strong chemical sme ll that contained the necessar y components of a meth lab” and “residual amounts of methamphetami ne and drug par aphernalia.” (R. Vol. II at 17.) Nor do we s ee any error in the district co urt’s finding that there was a significant amount of eviden ce linking Defendant to the r esidence where the police located these drug-relate d items near the firearm he ple d guilty to possessing. We are persuaded that the governme nt’s evidence is sufficient t o show by a preponderance of the e vidence that Defendant engaged in the off ense of attempting to manufacture methamphetamine, wh ich is a felony offense under fe deral law. Moreover, because the attempt to manufacture methamphetamine is a drugtrafficking offense, see Robinson , 435 F.3d at 1251, the gove rnment only needed to show that the firearm was “found in close proximity to drugs, d rug-manufacturing materials, or drug paraphernalia,” U.S.S.G. § 2K2.1 cmt. n.14(B ). The undisputed facts in this case r eflect that the poli ce found both the firea rm and the bucket containing meth lab components in the trailer identified as Def endant’s residence, and Defendant does not dispute th at these items w ere located su fficiently near each other to satisfy the “close pr oximity” requirement of the guide line.6 We therefore uphold the district court’s application of this en hancement and
AFFIRM Defendant’s conviction and sentence.

Entered for the Court

Monroe G. McKay Circuit Judge