United States v. Harris

United States Court of Appeals
for the Fifth Circuit

No. 20-10183
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Jesse Harris,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-304-7

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Jesse Harris pleaded guilty to conspiracy to possess with the intent to
distribute methamphetamine. Some members of the conspiracy brought
methamphetamine from Mexico and distributed it to Harris and others for
resale and use. In one transaction, Harris traded multiple firearms for an

*
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opinion should not be published and is not precedent except under the limited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
November 9, 2020

Lyle W. Cayce
Clerk
Case: 20-10183 Document: 00515632119 Page: 1 Date Filed: 11/09/2020

No. 20-10183
2
unknown quantity of methamphetamine. Based on this transaction, the
district court applied a two-level increase to Harris’s offense level for
possession of a firearm in connection with a drug offense. See U.S.S.G.
§ 2D1.1(b)(1). The court also added two levels because the
methamphetamine was imported from Mexico. See § 2D1.1(b)(5).
Harris contends that the first two-level increase was erroneous
because he did not possess a firearm in connection with his drug offense. The
district court’s decision to apply this increase is a factual determination that
is reversible only if it is clearly erroneous. United States v. Marquez, 685 F.3d
501, 508 (5th Cir. 2012). “The enhancement should be applied if the weapon
was present, unless it is clearly improbable that the weapon was connected
with the offense.” § 2D1.1(b)(1), cmt. 11(A) (2018). “It is not necessary for
possession of the weapon to play an integral role in the offense or to be
sufficiently connected with the crime to warrant prosecution as an
independent firearm offense.” United States v. Villarreal, 920 F.2d 1218, 1221
(5th Cir. 1991). But here the firearms were an integral part of the transaction
itself. As Harris concedes, the firearms were “used as collateral in a barter
transaction for narcotics.” The two-level increase was not clearly erroneous.
See United States v. Glenn, 15 F.3d 179, 1994 WL 24871, 6 (5th Cir. 1994)
(applying the increase where the defendant “acquired the handgun in
exchange for crack”); see also 5th Cir. R. 47.5.3 (stating that unpublished
decisions issued before January 1, 1996, are binding precedent).
Next, Harris contends that the two-level increase for imported
methamphetamine was erroneous because there was no proof that he knew
the drugs came from Mexico. As he concedes this argument is foreclosed by
circuit precedent, and he raises the issue only to preserve it for further
review. See United States v. Serfass, 684 F.3d 548, 552–53 (5th Cir. 2012).
The judgment is AFFIRMED.
Case: 20-10183 Document: 00515632119 Page: 2 Date Filed: 11/09/2020