# United States Court of Appeals

f or the Fifth Circuit

No. 21

- 50771 Summary Calendar

United States of America,

Plaintiff

— Appellee ,

versus

Nathan Sergei Myers,

Defendant

— Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. 7:21

- CR

- 48

- 1

Before Smith, Stewart, and Graves, Circuit Judges

. Per Curiam : * Nathan Sergei Myers was sentenced to 63 months of imprisonment after pleading guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, he contends that the district court clearly erred in applying a four

- level enha ncement under

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinio n should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 4, 2022
Lyle W. Cayce Clerk Case: 21-50771 Document: 00516265529 Page: 1 Date Filed: 04/04/2022No. 21

- 50771

2 U.S.S.G. § 2K2.1(b)(6) (B) for possessing a firearm in connection with a drug trafficking offense. Myers argues that there was no evidence of a connection between any firearms and the drugs and that the district court erred in deferring to th e commentary to the Sentencing Guidelines in light of the Supreme Court’s decision in Kisor v. Wilkie , 139 S. Ct. 2400 (2019)

. We need

not address the effect of Kisor on the Sentencing Guidelines in general or Application Note 14(B) of § 2K2.1 in particular because , as discussed below,
there was sufficient evidence for the district court to find a connection between the drugs and the firearms without the presumption of facilitation set forth in Application Note 14(B).
The determination that a firearm was used or possessed in connection with another felony offense pursuant to § 2K2.1(b)(6) (B) is a factual
determination that we review for clear error. United States v. Ba ss , 996 F.3d

729 , 742 (5th Cir. 2021)

. There is no clear error if a factual finding is plausible in light of the record as a whole. United States v. Huerta , 994 F.3d 711, 714 (5th Cir. 2021)

. The S entencing G uidelines provide for a four

- level enhanceme nt if a
defendant “ used or possessed any firearm or ammunition in connection with another felony offense .” § 2K2.1(b)(6) (B)

. “[T]he enhancement applies, in general, ‘if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.’” United States v. Alcantar , 733 F.3d 143, 146 (5th Cir. 2013) (quoting § 2K2.1, comment. (n.14(A))). In determining whether possession of a firearm facilitated or had the potential to facilitate a felony offense, the facts of the case mu st demonstrate that the firearm in question emboldened the offense or served to protect the contraband. United States v. Jeffries , 587 F. 3 d 690, 695 (5th Cir. 2009). Despite Myers’s assertions to the contrary, the record reflects that he was distributing heroin and methamphetamine from his residence, a 9mm pistol and a shotgun were readily accessible from within his residence, and a confidential informant , Case: 21-50771 Document: 00516265529 Page: 2 Date Filed: 04/04/2022No. 21

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3 who later conducted a contr olled purchase, advised the police that Myers “was also in possession of a small pistol.” Because the determination that Myers possessed a firearm in furtherance of a drug trafficking offense is plausible in light of the record as a whole , the district co urt did not clearly err in imposing a four

- level enhancement under § 2K2.1(b)(6) (B)

. See Huerta , 994 F.3d at 714

. Accordingly, the judgment of the district is AFFIRMED

. Case: 21-50771 Document: 00516265529 Page: 3 Date Filed: 04/04/2022