United States Court of Appeals

for the Fifth Circuit

No. 19-51038

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

James Leroy McMillion, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:18-CR-283-16

Before Jones, Barksdale, and Stewart, Circuit Judges.

Per Curiam:*

James Leroy McMillion pleaded guilty to one count of conspiracy to 

possess, with intent to distribute, 50 grams or more of methamphetamine, in 

* Pursuant to 5TH CIR. R. 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not be published and is not precedent except under the limited circumstances set forth in 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 CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2020

Lyle W. Cayce

Clerk

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violation of 21 U.S.C. § 846, and one count of distribution of 50 grams or 

more of methamphetamine, in violation of § 841(a)(1). He was sentenced to, 

inter alia, 87-months’ imprisonment.

McMillion challenges the district court’s application of the 

dangerous-weapon enhancement under Sentencing Guideline § 2D1.1 (b)(1); 

contends the court failed to rule on a disputed factual finding, as required by 

Federal Rule of Criminal Procedure 32(i)(3)(B), when it overruled his 

objection to the enhancement; and maintains the court improperly shifted

the burden of proof and pressured him into waiving his objection to the 

quantity-of-drug estimate, violating his right to due process. His claims fail.

Although post-Booker, the Sentencing Guidelines are advisory only, 

the district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 46, 51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de 

novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

The court’s determination that the Guideline § 2D1.1(b)(1) 

enhancement applies is a factual finding and is, therefore, reviewed only for 

clear error. United States v. Romans, 823 F.3d 299, 317 (5th Cir. 2016). 

Section 2D1.1(b)(1) provides for a two-level enhancement “[i]f a dangerous 

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weapon (including a firearm) was possessed” during a drug-trafficking 

offense. The Government must establish possession of a weapon within the 

meaning of § 2D1.1(b)(1) by a preponderance of the evidence—which it may 

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

the drug trafficking activity, and the defendant”. United States v. King, 773 

F.3d 48, 53 (5th Cir. 2014) (internal quotation marks and citation omitted). 

If the Government carries this burden, defendant can avoid the enhancement 

only by showing it is “clearly improbable that the weapon was connected with 

the offense”. Romans, 823 F.3d at 317 (internal quotation marks and citation 

omitted). 

A Special Agent’s testimony established McMillion used his RV to 

conduct drug transactions and acquired at least one firearm as collateral for 

such a transaction. The Agent testified that this firearm, as well as another 

firearm and drugs, were stolen from the RV and that, pursuant to intercepts, 

McMillion “referenced frequently going back and forth” to the vehicle on 

the day it was burglarized. Based on these facts, the court reasonably inferred

the firearms and drugs were stored in proximity of each other, as well as in a 

place McMillion performed drug activity. See King, 773 F.3d at 52–53

(applying enhancement because drugs and firearm were stored in the same 

residence). 

McMillion’s contention that the firearms may have been inoperable 

or locked in a safe does not satisfy his burden of rebutting the Government’s 

evidence. See United States v. Rodriguez, 62 F.3d 723, 724–25 (5th Cir. 1995)

(“That the weapon was not brandished and was unloaded does not negate a 

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finding of possession under § 2D1.1(b)(1). The dispositive factor is the 

accessibility of the weapon to the defendant.”) (citations omitted); United 

States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990) (noting the inoperable 

character of a gun is not dispositive). The court did not clearly err in applying 

the § 2D1.1(b)(1) enhancement.

Because McMillion did not raise his Rule 32 and due-process claims

in district court, review is only for plain error. E.g., United States v. Broussard, 

669 F.3d 537, 546 (5th Cir. 2012). Under that standard, McMillion must 

show a forfeited plain error (clear or obvious error, rather than one subject to 

reasonable dispute) that affected his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the 

discretion to correct such reversible plain error, but generally should do so 

only if it “seriously affect[s] the fairness, integrity or public reputation of 

judicial proceedings”. Id.

Regarding Rule 32, the court did not commit the requisite clear or 

obvious error in overruling McMillion’s objection to the dangerous-weapon 

enhancement. Rule 32(i)(3)(B) requires the court to make findings regarding 

disputed factual issues that affect sentencing. Fed. R. Crim. P. 32(i)(3)(B).

A court may make implicit findings through adopting the presentence 

investigation report (PSR), which “operate[s] to satisfy the mandates of Rule 

32 when the findings in the PSR are so clear that the reviewing court is not 

left to ‘second-guess’ the basis for the sentencing decision”. United States v. 

Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994). Application of the dangerousCase: 19-51038 Document: 00515557109 Page: 4 Date Filed: 09/09/2020
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weapon enhancement is supported by the PSR and the Agent’s testimony; 

we have no basis to second-guess the court’s sentencing decision.

McMillion’s due-process claim similarly fails. McMillion had the

burden to rebut the PSR with respect to the quantity-of-drug estimate; the 

district court did not improperly shift the burden to him in violation of his 

due-process rights. See United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 

2013). McMillion’s assertion that the court attempted to coerce him into

withdrawing his objection is also not supported by the record. Accordingly, 

there is no clear or obvious error.

AFFIRMED.

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