     Case: 18-11109      Document: 00514968913         Page: 1    Date Filed: 05/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                              FILED
                                    No. 18-11109
                                                                            May 23, 2019
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERT GRAY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-434-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Robert Gray appeals the within-Guidelines sentence imposed after his
guilty plea to possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). He argues that the district court erred in
assessing a four-level sentencing enhancement. We AFFIRM.
       This court reviews the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. United States v.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11109     Document: 00514968913       Page: 2   Date Filed: 05/23/2019


                                    No. 18-11109

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We will uphold a factual
finding on clear error review so long as it is “plausible in light of the record as
a whole.” Id. (citation omitted).
      Gray’s specific contention is that the Government failed to carry its
burden under the U.S.S.G. § 2K2.1(b)(5) enhancement to demonstrate that he
knew or had reason to believe that his sales of firearms to a confidential
informant would result in the transfer of firearms to an individual who
intended to use or dispose of them unlawfully. See § 2K2.1, cmt. n.13(A). That
contention raises a factual issue that we review for clear error. United States
v. Juarez, 626 F.3d 246, 251-52 (5th Cir. 2010). In assessing a defendant’s
mental state for purposes of sentencing, a court may draw “common-sense
inferences from the circumstantial evidence,” id. at 256 (citation omitted), and
such inferences are reviewed for clear error, id. at 251.
      Here, the factual information in the presentence report, which Gray did
not rebut, demonstrated that Gray was actually aware that the firearms he
sold to the confidential informant were bound for Mexico and would be arming
drug cartels there. Also, the district court could reasonably infer from the
circumstantial evidence in the record that Gray knew or had reason to believe
that the firearms he sold were going to be transported to Mexico for illegal
purposes. Such evidence included Gray’s knowledge that the informant made
his money from the ongoing “border war” and the informant’s statement that
he makes money by taking firearms to cartels in Mexico.               These facts,
considered in light of the record as a whole and making reasonable inferences,
support the district court’s conclusion that the Section 2K2.1(b)(5)
enhancement was not clearly erroneous. See Juarez, 626 F.3d at 251-52.
      AFFIRMED.




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