United States Court of Appeals

for 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 enhancement under 

* 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opinion should not be published and is not precedent except under the limited 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

April 4, 2022

Lyle W. Cayce

Clerk

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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 the 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. Bass, 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 Sentencing Guidelines provide for a four-level enhancement 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 must demonstrate that the firearm in 

question emboldened the offense or served to protect the contraband. United 

States v. Jeffries, 587 F.3d 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, 

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3

who later conducted a controlled 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 court 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