IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10748

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff - Appellee 

v. 

DARYN ANTIONE REID, 

Defendant - Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:15-CR-231-1 

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges. 

PER CURIAM:*

In challenging the 120-month sentence imposed on his guilty-plea 

conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1), Daryn Antione Reid contends the district court erred in applying 

the advisory Sentencing Guidelines enhancements under §§ 2K2.1(b)(6)(B) and 

3C1.2. 

 

* 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

April 4, 2017

Lyle W. Cayce

Clerk

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No. 16-10748

2 

In that regard, Reid admitted he possessed a 9mm pistol, which he 

attempted to retrieve from his clothing, as discussed infra, immediately prior 

to fleeing arrest in September 2015, and which he discarded in a dumpster 

before being apprehended. In an unrelated instance one month prior to this 

arrest, Reid was observed by law enforcement officers offering to sell crack 

cocaine. After noticing the police vehicle, Reid ran into a convenience store, 

where he was observed discarding an unidentified object into a garbage can. 

Shortly after he was arrested, a .45 caliber firearm was found in the garbage 

can, but no charges were filed for this encounter. 

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, 48–51 (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). 

In applying § 2K2.1(b)(6)(B), the court found Reid possessed a .45 caliber 

firearm in connection with the felony offense of “Attempt to Distribute Cocaine 

Base”. That enhancement applies when defendant “[u]sed or possessed any 

firearm or ammunition in connection with another felony offense”. U.S.S.G. 

§ 2K2.1(b)(6)(B). “The district court’s determination of the relationship 

between the firearm and another offense is a factual finding.” United States v. 

Coleman, 609 F.3d 699, 708 (5th Cir. 2010). A criminal charge need not have 

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been brought for an offense to qualify as “another felony offense” under this 

Guideline. § 2K2.1, cmt. n.14(C). 

Reid presents three challenges to the court’s imposing the 

§ 2K2.1(b)(6)(B) enhancement. First, he asserts the evidence was insufficient 

to prove he possessed the .45 caliber firearm and committed the offense of sale 

of a dangerous drug under Tex. Health & Safety Code § 483.042. The 

undisputed evidence showed: two police officers overheard Reid offer cocaine 

base to individuals in an automobile in the parking lot of a convenience store; 

Reid entered the convenience store immediately after the officers instructed 

him to walk towards them; two witnesses inside the convenience store observed 

Reid place an item in a garbage can shortly before the .45 caliber firearm was 

found there; and Reid verbally threatened to shoot those witnesses and the 

individuals in the automobile. Based on the record as a whole, the court’s 

finding he possessed the .45 caliber firearm was plausible and thus not clearly 

erroneous. See Coleman, 609 F.3d at 708–09. 

Reid’s second challenge concerns the Texas offense for sale of a 

dangerous drug, but he does not state anywhere in his brief why his conduct 

did not amount to the offense of attempt to distribute cocaine base under 21 

U.S.C. §§ 841 and 846. He has, therefore, waived this challenge, see United 

States v. Edwards, 303 F.3d 606, 647 (5th Cir. 2002), and has not shown the 

court erred in determining he possessed a firearm in connection with the felony 

offense of attempted distribution of cocaine base. 

Third, Reid asserts Guideline § 2K2.1(b)(6)(B) is inapplicable because his 

conviction involved the possession of the 9mm and not the .45 caliber—a 

different firearm in a different incident. This contention is unavailing because 

the Guidelines commentary discusses both §§ 2K2.1(b)(6)(B) and (c)(1), and 

makes clear that only § 2K2.1(c)(1) requires the firearm possessed in 

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connection to another felony offense be the same firearm cited in the offense of 

conviction. See § 2K2.1, cmt. n.14(A) (“[S]ubsection (c)(1) contains the 

additional requirement that the firearm or ammunition be cited in the offense 

of conviction”.). In short, the court did not err in applying the enhancement. 

Concerning Reid’s challenging the court’s applying § 3C1.2, that 

Guideline applies “[i]f the defendant recklessly created a substantial risk of 

death or serious bodily injury to another person in the course of fleeing from a 

law enforcement officer”. U.S.S.G. § 3C1.2. He contends the court clearly erred 

in finding he recklessly created a substantial risk of death or serious bodily 

injury to another person during his September flight. Reid’s conduct while 

fleeing from a police officer included reaching for a 9mm pistol that was in 

Reid’s waistband, which caused the officer to take cover for safety; eventually 

removing the pistol from his waistband and climbing over a fence, at which 

time the pistol discharged one round; and continuing to run with the pistol 

through an apartment complex until he discarded it in a dumpster. 

Accordingly, the court’s application of § 3C1.2 was supported by the evidence 

and not clearly erroneous. See United States v. Bardell, 294 F. App’x 881, 881–

82 (5th Cir. 2008). 

AFFIRMED. 

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