USA v. Khalid McMaryion

Filing

UNPUBLISHED OPINION FILED. [17-50072 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate pull date is 10/10/2017 for Appellant Khalid McMaryion [17-50072]

Case: 17-50072

Document: 00514159629

Page: 1

Date Filed: 09/18/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50072
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 18, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KHALID MCMARYION,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-193-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Khalid McMaryion appeals his 24-month sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He asserts that
the district court erroneously applied a four-level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another
felony offense, i.e., a Texas burglary offense. Specifically, he argues that there
was insufficient evidence to support the enhancement. McMaryion maintains

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 17-50072

Document: 00514159629

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Date Filed: 09/18/2017

No. 17-50072
that “[t]he evidence provided in the PSR and at the sentencing hearing fail to
show [he] was involved in a burglary when he was found to be in possession of
a firearm.”
We review the district court’s application of the Guidelines de novo and
its factual findings for clear error. United States v. Coleman, 609 F.3d 699, 708
(5th Cir. 2010).

For purposes of § 2K2.1(b)(6)(B), “[t]he district court’s

determination of the relationship between the firearm and another offense is
a factual finding.” Id. “In determining whether a Guidelines enhancement
applies, the district court is allowed to draw reasonable inferences from the
facts, and these inferences are fact findings reviewed for clear error.” Id. “A
factual finding is not clearly erroneous if it is plausible in light of the record as
a whole.” Id.
The record reflects that police officers searching for the burglars,
minutes after the burglary, located McMaryion with a suspect the victim had
initially identified as one of the perpetrators of the burglary. Police located
McMaryion with that suspect two blocks away from the scene of the burglary
and in the general direction the victim observed the burglars had fled. Shortly
thereafter, the victim, who had seen the burglars leave her house and
recognized some of them, identified McMaryion as one of the suspects in the
burglary.
Although McMaryion emphasizes that he was not “arrested [for] or
charged with burglary,” an offense can constitute “another felony offense” for
purposes of § 2K2.1(b)(6)(B) “regardless of whether a criminal charge was
brought, or a conviction obtained,” § 2K2.1, comment. (n.14(C)). To the extent
McMaryion attacks the police officer’s testimony as hearsay with respect to the
victim’s statements, the district court is allowed to consider hearsay at
sentencing as long as it is reliable, see United States v. Andaverde-Tinoco, 741

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Date Filed: 09/18/2017

No. 17-50072
F.3d 509, 525 (5th Cir. 2013). McMaryion has made no showing that the
officer’s recount of the victim’s statements was unreliable.
Accordingly, the district court’s finding that McMaryion was involved in
the burglary is plausible in light of the record as a whole and, thus, not clearly
erroneous. See Coleman, 609 F.3d at 708.
AFFIRMED.

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