USCA4 Appeal: 23-4768 Doc: 58 Filed: 08/13/2025 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-4768
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN LEON MYRICK, a/k/a Mel Skee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:22-cr-00148-HEH-1)
Argued: March 20, 2025 Decided: August 13, 2025
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Robert James Wagner, ROBERT J. WAGNER, PLC, Richmond, Virginia, for Appellant. Daniel J. Honold, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Kenneth R. Simon, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 23-4768 Doc: 58 Filed: 08/13/2025 Pg: 2 of 20
NIEMEYER, Circuit Judge:
After Melvin Myrick abandoned the car that he had been driving following a high-
speed chase, law enforcement officers recovered cocaine, methamphetamine, drug
paraphernalia, and three guns, along with other related items, from the car. A federal grand
jury indicted him on October 4, 2022, for possession with intent to distribute 50 grams or
more of “actual methamphetamine,” and Myrick made his first appearance on that charge
on October 14, 2022. On February 21, 2023, the grand jury issued a superseding indictment
that added two new firearms charges, as well as cocaine to his drug charge. When his trial
on the three charges began on March 22, 2023, Myrick filed a motion to dismiss the
indictment on the ground that the government had violated the Speedy Trial Act, which
requires generally that a trial be commenced within 70 days from the filing date of an
indictment or the defendant’s initial appearance. See 18 U.S.C. § 3161(c)(1). The Act,
however, provides that certain periods of delay are to be excluded when calculating when
a trial must commence. See id. § 3161(h). Finding that several periods of delay in this
case were properly excluded under the Act, such that the trial had been timely commenced,
the district court denied Myrick’s motion.
The jury found Myrick guilty on all charges, and the district court sentenced him to
270 months’ imprisonment, which fell at the bottom of the Sentencing Guidelines range
calculated by the court.
On appeal, Myrick challenges mainly the denial of his Speedy Trial Act motion, but
also aspects of his sentencing and the sufficiency of the evidence on one of the firearms
charges. We affirm.
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I
At about 2:00 a.m. on April 20, 2022, a Colonial Heights, Virginia, police officer
attempted to stop a silver Nissan for a traffic infraction. The Nissan, however, failed to
stop and sped away, reaching well over 85 miles per hour in a 35-miles-per-hour zone as
the officer pursued. When, however, the officer became concerned for her own safety, she
decided to end the pursuit. Nonetheless, shortly thereafter, she came upon the Nissan,
which had crashed headfirst into a tree. When she arrived, she saw the driver exit and run
around the rear of the vehicle. He briefly locked eyes with her before he attempted to open
the front passenger door. When he was unable to do so, he ran into the woods and escaped.
Following a search of the vehicle, officers recovered 138 grams of
methamphetamine, 53 grams of powder cocaine, two digital scales, three loaded semi-
automatic handguns — a Glock model 22, another Glock model 22 with an extended
magazine, and a 7.62 AK-style pistol — as well as a 7.62 shell casing on the front passenger
seat. The officers also recovered Department of Motor Vehicle (DMV) paperwork in the
name of Melvin Myrick, an Enterprise rental agreement indicating that the vehicle had
been rented earlier that month by a woman later identified as Myrick’s girlfriend, and two
cell phones. The officers obtained a photo of Myrick from the DMV, and the officer who
had pursued the silver Nissan immediately identified him as the person she had witnessed
at the scene.
After state law enforcement arrested Myrick in connection with an unrelated
offense, a federal grand jury returned an indictment on October 4, 2022, charging that on
April 20, 2022, he had possessed with intent to distribute 50 grams or more of “actual
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methamphetamine,” in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was thereafter
transferred to federal custody and made his initial appearance on the drug charge on
October 14, 2022. The court appointed counsel for Myrick and scheduled his trial to begin
on December 14, 2022, 61 days after his initial appearance.
Following his initial appearance, Myrick changed counsel, the parties filed motions
for continuances, and Myrick filed two pretrial motions to suppress evidence, all resulting
in periods of delays. Moreover, on February 21, 2023, the grand jury returned a
superseding indictment, which added two firearms charges and cocaine to the existing drug
charge. Ultimately, the court scheduled trial to begin on March 22, 2023, 159 days after
Myrick’s initial appearance.
On the date of trial and before the jury selection began, Myrick filed a pro se motion
to dismiss his indictment under the Speedy Trial Act, arguing that his “Speedy Trial cut-
off date” was actually March 21, 2023, the day before trial began. The court immediately
addressed the issue, and both the government and counsel for Myrick agreed that the trial
was commencing within the time required by the Act because there were periods of delay
excludable under the Act that brought the trial date within 70 days of Myrick’s initial
appearance. The court denied Myrick’s pro se motion, finding that the trial was
commencing “within the Speedy Trial date.”
Following a three-day trial, the jury convicted Myrick on all three counts.
The court then entered a written opinion explaining its denial of Myrick’s motion to
dismiss under the Speedy Trial Act. When Myrick subsequently changed counsel again,
his new counsel filed a motion asking the court to reconsider its denial of his speedy trial
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motion, focusing on a 16-day period between the hearing on his motions to suppress and
the court’s issuance of its written opinion denying both motions. Myrick argued that
because the motions were actually denied at the hearing, the speedy trial clock resumed
running then, and thus the trial was, he argued, too late. The court, however, rejected the
argument, noting that it had not ruled on Myrick’s suppression motions at the hearing “but
rather noted Defendant’s exceptions and took the matter under advisement with an opinion
to follow.” Thus, the court excluded the 62-day period from when the motions were filed
to when it decided them in the written opinion, and it explained that, when that period of
delay was combined with other periods of delay that Myrick conceded were properly
excluded, the trial was timely under the Speedy Trial Act.
The court sentenced Myrick in December 2023. In advance of sentencing, the
probation officer prepared a presentence report concluding that Myrick had a total offense
level of 34, which, when coupled with his Criminal History Category IV, resulted in an
advisory sentencing range of 270 to 322 months’ imprisonment. At sentencing, Myrick
objected to the presentence report, contending (1) that the purity of the methamphetamine
recovered had not been sufficiently proven; (2) that he should not have received a reckless
endangerment enhancement because he never placed anyone in a position of substantial
risk of death or serious bodily injury; and (3) that he should not have been assigned two
criminal history points for two 2022 Virginia convictions for contempt of court. In addition
to interposing these objections, Myrick filed a motion for a downward departure or a
downward variant sentence, arguing that Criminal History Category IV overrepresented
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his criminal history and that policy considerations weighed against imposing an enhanced
sentence based on methamphetamine purity.
At the sentencing hearing, the court rejected Myrick’s arguments with respect to the
reckless endangerment enhancement and the criminal history points for his contempt
convictions. And as to his argument with respect to the purity of the methamphetamine,
the court addressed it as part of its consideration of his motion for a variant sentence.
During that discussion, the court noted that “actual” methamphetamine was more lethal
than methamphetamine that was less pure and that the chemist’s testimony at trial
established that Myrick had possessed “at least 100 grams of pure methamphetamine.”
After considering the 18 U.S.C. § 3553(a) factors, the district court imposed a sentence at
the bottom of the recommended Guidelines range — 270 months’ imprisonment.
From the district court’s judgment dated December 20, 2023, Myrick filed this
appeal.
II
Myrick’s main argument — which he identifies as “[t]he crux of this appeal” — is
that he was denied his statutory right to a speedy trial and therefore that the district court
erred in denying his motion to dismiss the indictment on that ground. Specifically, he
argues that the district court “incorrectly tolled the speedy trial clock for the entire period
between [his] filing of the suppression motions and the [court’s] rendering of the written
opinion — despite the fact that the district court clearly ruled against [him] during the
hearing.” Thus, he contends that the district court erroneously excluded the 16 days
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between the hearing and its filing of the written opinion. In support of this challenge, he
directs our attention to the portions of the hearing transcript where the district court twice
agreed to note Myrick’s “exceptions” for the record. And while he acknowledges that the
clerk’s notation in the minutes of the hearing indicated that the motions were taken under
advisement, he contends that that minute entry was erroneous and of no legal consequence.
If the court had decided Myrick’s motions to suppress at the hearing, as he argues, the
excluded period of delay would be shortened from 62 days to 46 days, and the trial would
have been late under the Speedy Trial Act.
A
Before we address Myrick’s argument, we confirm that the grand jury’s return of
the superseding indictment on February 21, 2023, did not restart the speedy trial clock for
the drug offense. Before the district court and initially before us, Myrick contended that
all three of his charges should have been dismissed under the Speedy Trial Act, without
considering that he was charged with only the drug offense on October 4, 2022, and that
the two charges alleging firearms offenses were not added to the case until February 21,
2023. But after we called for supplemental briefing, he essentially acknowledged that
existing authority showed that his speedy trial motion could cover only the drug offense
and not the firearms offenses. We agree.
The Speedy Trial Act does not directly address the effect of a superseding
indictment on the speedy trial clock. But an analogous provision of the Act specifies that
if the indictment is dismissed on the government’s motion but then the government later
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charges the defendant with “the same offense, or any offense required to be joined with
that offense,” the speedy trial clock for that type of offense is tied to the original indictment,
although the time between the dismissal of the first indictment and the defendant’s initial
appearance on the new indictment is excluded from the 70-day limit. 18 U.S.C.
§ 3161(h)(5). Given that the government’s filing of a superseding indictment is
functionally identical to its dismissal of an indictment followed immediately by its filing
of a new indictment, it stands to reason that the same rule should apply to superseding
indictments. And, indeed, it appears that every court of appeals to have considered the
issue has reached the same conclusion, recognizing that “the filing of a superseding
indictment does not reset the speedy-trial clock for offenses charged, or required to be
joined with those charged, in the original indictment.” United States v. Young, 528 F.3d
1294, 1296–97 (11th Cir. 2008) (collecting cases); see also Sylvester v. United States,
868 F.3d 503, 508–09 (6th Cir. 2017) (same).
Conversely, however, when a superseding indictment adds new and different
charges to the case — charges not required by the Double Jeopardy Clause to be included
with the original charge — the clock for those charges is tied to the filing of the superseding
indictment, not the original indictment. See United States v. Lattany, 982 F.2d 866, 872
n.7 (3d Cir. 1992); see also Young, 528 F.3d at 1295, 1298. Thus, the speedy trial clock
on the two firearms counts — which were substantively unrelated to the original drug
charge and were added by the superseding indictment — started with Myrick’s initial
appearance on those charges on February 21, 2023, only about one month before Myrick’s
trial commenced. His trial on those charges was thus certainly timely.
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Accordingly, the question that we are left to address is whether Myrick’s drug
charge was subject to dismissal under the Speedy Trial Act, not his firearms charges.
B
With the enactment of the Speedy Trial Act of 1974, Congress required that criminal
cases be set for trial “at the earliest practicable time . . . so as to assure a speedy trial.”
18 U.S.C. § 3161(a). And it made clear that its interests in enacting the Act were broader
than the right conferred by the Sixth Amendment to a speedy trial, which primarily serves
the defendant’s interests. With the Speedy Trial Act, Congress intended “not just to benefit
defendants but also to serve the public interest by, among other things, reducing
defendants’ opportunity to commit crimes while on pretrial release and preventing
extended pretrial delay from impairing the deterrent effect of punishment.” Zedner v.
United States, 547 U.S. 489, 501 (2006) (emphasis added). To serve those interests, the
Act requires criminal trials to “commence within seventy days from the filing date . . . of
the information or indictment, or from the date the defendant has appeared before a judicial
officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C.
§ 3161(c)(1). Because this requirement is in the public interest, the defendant cannot
prospectively waive it. See Zedner, 547 U.S. at 500–03.
Nonetheless, to provide the flexibility necessary to suit the individual characteristics
of a given criminal case, “the Act includes a long and detailed list of periods of delay that
are excluded in computing the time within which trial must start.” Zedner, 547 U.S. at 497
(emphasis added) (citing 18 U.S.C. § 3161(h)). Thus, to determine whether a defendant’s
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trial was timely under the Speedy Trial Act, courts cannot simply count 70 days from the
defendant’s initial appearance; they must also apply the Act’s exclusion provisions.
If, after applying the § 3161(h) excludable delays, the 70-day trial deadline is
violated and the defendant files a motion to dismiss the charges before the trial commences,
then the charges “shall be dismissed.” 18 U.S.C. § 3162(a)(2). The district court, however,
retains the discretion to make the dismissal with or without prejudice. Id.; see also United
States v. Velasquez, 52 F.4th 133, 136 (4th Cir. 2022).
As relevant to the issue before us — the period of delay resulting from Myrick’s
motions to suppress — the Speedy Trial Act excludes any period of “delay resulting from
any pretrial motion, from the filing of the motion through the conclusion of the hearing on,
or other prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D). The Act also
excludes any “delay reasonably attributable to any period, not to exceed thirty days, during
which any proceeding concerning the defendant is actually under advisement by the court.”
Id. § 3161(h)(1)(H). Under these provisions, the speedy trial clock stops running upon the
filing of any pretrial motion, “irrespective of whether it actually causes, or is expected to
cause, delay in starting a trial.” United States v. Tinklenberg, 563 U.S. 647, 650 (2011).
And when the court holds a hearing on the motion, “the entire period from the filing of the
motion to the conclusion of the hearing” is excluded. United States v. Parker, 30 F.3d 542,
546 (4th Cir. 1994). Thus, if the judge “finally disposes of the motion” by rendering a
decision “orally in open court,” then the clock resumes running following the hearing. Id.
at 546 & n.1. But “[i]f the court does not dispose of the motion during the hearing, the
[Act] permits the exclusion of an additional period — not to exceed 30 days — during
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which the court holds the motion under advisement and continuing through the day the
order ruling on the motion is entered.” United States v. Stoudenmire, 74 F.3d 60, 63 (4th
Cir. 1996); see also Parker, 30 F.3d at 546.
In counting days for the Speedy Trial Act, the day of the event — e.g., the date when
a pretrial motion was filed — is not counted, and the counting begins with the next day to
provide an accurate count of the days. See Stoudenmire, 74 F.3d at 63 (recognizing that
“the day of the event that triggers the [speedy trial] clock . . . is not included in the
calculation” and that “the clock begins to run the following day” (citing, inter alia, Fed. R.
Crim. P. 45(a)). Thus, as an example, the number of days from April 5 to April 8 is not
four — the 5th, 6th, 7th, and 8th — but three, recognizing that the period from April 5 to
April 6 is one day, the period from April 6 to April 7 is the second day, and the period from
April 7 to April 8 is the third day.
The question presented here is whether Myrick’s drug charge, for which he made
his initial appearance on October 14, 2022, was subject to dismissal under the Speedy Trial
Act when his trial commenced on March 22, 2023. And this question requires an analysis
of whether the excludable periods of delay reduced that total period to 70 days or less.
Without exclusions, there were 159 days from Myrick’s initial appearance to when trial
began — October 14, 2022, to March 22, 2023. But there were also three periods of delay,
which, according to the district court, brought the total “countable” period from Myrick’s
initial appearance to trial to less than 70 days, thus satisfying the Act’s requirements.
First, on November 7, 2022, a new lawyer entered his appearance on behalf of
Myrick and filed a motion to substitute himself as counsel. While that motion was pending,
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he also filed an unopposed motion for “a continuance of between thirty to sixty days,”
explaining that he needed additional time to prepare pretrial motions. The district court
granted Myrick’s motion for a continuance on November 28, 2022, and set a new trial date
of January 31, 2023. This first period of delay thus amounted to 21 days — from
November 7, 2022, to November 28, 2022.
Second, on December 9, 2022, Myrick filed two pretrial motions to suppress
evidence. After the government filed responses in early January 2023, the court promptly
scheduled a hearing on the motions for January 24, 2023. At the hearing, the court clearly
telegraphed that it intended to deny the motions — indeed, Myrick contends that it did then
deny them. But, according to the court, it took the motions under advisement and then
issued its written opinion denying the motions on February 9, 2023. This second period of
delay was 46 days if the court actually decided the motions at the hearing — from
December 9, 2022, to January 24, 2023 — or 62 days if it decided the motions with its
written opinion — from December 9, 2022, to February 9, 2023.
Third, on March 10 and again on March 12, 2023, the parties filed motions in limine,
which the court granted on March 17 from the bench, subsequently issuing a memorandum
opinion explaining its decision. This third period of delay thus amounted to 7 days — from
March 10, 2023, to March 17, 2023.
In sum, according to the position of the district court and the government, the three
excludable periods of delay were 21 days, 62 days (relating to the motions to suppress),
and 7 days, for a total of 90 days. And when 90 days are subtracted from the 159 days
from Myrick’s initial appearance to trial, the resulting 69 days comply with the Speedy
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Trial Act, without the need to consider the applicability of any of the Act’s other
exclusions. But according to Myrick, the three excludable periods of delay were 21 days,
46 days, and 7 days, for a total of 74 days. And when 74 days are subtracted from the 159-
day total, the resulting 85 days exceed the 70-day limit and therefore violate the Speedy
Trial Act, assuming no other exclusions applied. The difference in positions thus turns on
whether the district court decided, i.e., finally disposed of, Myrick’s motions to suppress
at the hearing on January 24 or with its written opinion on February 9. See 18 U.S.C.
§ 3161(h)(1)(D), (H).
Myrick argues that the district court decided his suppression motions at the January
24, 2023 hearing and that it merely explained the reasoning for its rulings in the subsequent
February 9, 2023 memorandum opinion. He bases this argument on the court’s twice
recognizing exceptions taken by his counsel in response to statements the court made
during the hearing. Specifically, after the court expressed skepticism with the theory
underlying Myrick’s first motion, defense counsel asked the court to “[n]ote [his]
exception,” and the court responded, “Sure. I will.” Similarly, regarding the second
motion, the court indicated that it thought Myrick’s argument was “grist for the cross-
examination mill” but not a basis to exclude the evidence altogether. Again, defense
counsel asked that his “exception” be noted, and the court responded, “Okay.” While these
exchanges suggest that Myrick’s counsel took the court’s statements as determinative, they
do not support the conclusion that they were — i.e., that the court actually ruled on the
motions — especially when other indicators are considered.
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First, when expressing skepticism to Myrick’s counsel during the argument, the
court never actually made a decision on those points and certainly not on the motions.
Rather, it asserted positions that prompted counsel, in the exercise of caution not to waive
anything, to take exception. But we could nowhere in the transcript find that the court
actually denied the motions, i.e., disposed of them finally. Second, immediately after the
hearing concluded, court staff entered a minute entry on the docket stating that the
suppression motions had been “taken under advisement by the Court” and that a
memorandum opinion would follow, which did happen on February 9, 2023. And finally,
in ruling on Myrick’s motion to reconsider its denial of his speedy trial motion, the district
court specifically found as fact that it had not ruled on Myrick’s suppression motions at the
January 24, 2023 hearing, “but rather noted Defendant’s exceptions and took the matter
under advisement with an opinion to follow.”
Thus, to prevail on his claim that his motions were actually decided at the hearing,
Myrick would need to establish that the court’s factual finding on this issue was clearly
erroneous. See Stoudenmire, 74 F.3d at 63. But the record does not support such a
conclusion. Nowhere in the transcript of the January 24 hearing does the court ever state
that the motions were denied, although the court did signal that it was likely to deny them,
prompting Myrick’s counsel to note exceptions for the record. But the fact that the court
agreed to note exceptions did not create a ruling where there had not yet been one.
Moreover, the minute notation entered on the docket immediately after the hearing notified
the parties that the motions had been “taken under advisement by the Court,” a fact later
confirmed by the court’s finding. This record, we conclude, amply supports the district
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court’s factual finding that it did not dispose of the two suppression motions at the hearing
on January 24 but instead did so with its February 9, 2023 memorandum opinion and order.
Accordingly, the period from December 9, 2022, when Myrick filed his motions to
suppress, to February 9, 2023, when the district court finally decided those motions — a
period of 62 days — was properly excluded from the Speedy Trial Act calculation. With
that excludable delay, as well as the other two excludable delays that Myrick has not
challenged, Myrick’s trial began within the 70-day requirement of the Speedy Trial Act.
We therefore affirm the district court’s denial of his motion to dismiss the indictment based
on the Act.
III
Myrick next contends that the district court committed procedural errors in
sentencing him. We address each argument in order.
First, Myrick contends that the district court erred in applying a two-level sentencing
enhancement under U.S.S.G. § 3C1.2 for reckless endangerment. That provision 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.” Myrick argues
that there was in his case nothing more than a basic car chase, emphasizing that we have
recognized that “a vehicular flight, alone, does not necessarily justify an application of
§ 3C1.2” and that “[s]omething more is required.” (Quoting United States v. Burnley,
988 F.3d 184, 191 (4th Cir. 2021)).
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The district court did find that “something more,” however. It noted that, in
response to a police officer’s attempt to conduct a traffic stop, Myrick drove his car
erratically “at approximately 100 miles an hour in a semi-residential area” that had a 35-
miles-per-hour speed limit posted and that the officer “pursued him for quite a while.”
When, however, her car and steering wheel started shaking from the high speed at which
she was driving, the officer decided, for her own safety, to end the pursuit. Indeed,
immediately thereafter, Myrick himself crashed his car into a tree. We conclude that in
these circumstances, the district court did not clearly err in finding that the officer faced a
sufficiently substantial risk of death or serious injury to support application of the § 3C1.2
enhancement. See United States v. Shivers, 56 F.4th 320, 324 (4th Cir. 2022) (recognizing
that “the application of the § 3C1.2 enhancement is reviewed for clear error” and that we
“will not find clear error unless on the entire evidence, we are left with the definite and
firm conviction that a mistake has been committed” (cleaned up)).
Second, Myrick contends that the district court erred in assigning him two criminal
history points under U.S.S.G. § 4A1.2 for his Virginia convictions for contempt of court.
That section provides that “[s]entences for all felony offenses are counted” and that
sentences for most “misdemeanor and petty offenses are counted,” except for a few
offenses, id. § 4A1.2(c), one of which is “Contempt of court,” id. § 4A1.2(c)(1). Sentences
for contempt of court are counted “only if (A) the sentence was a term of probation of more
than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was
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similar to an instant offense.” Id. Here, the state court records show that Myrick was found
guilty on two counts of contempt based on his willful failure to appear for court and his
disobedience of an officer of the court, in violation of Virginia Code § 18.2-456(A)(5)–(6),
and that he was sentenced to time served — a period of nearly six months.
Myrick argues that during the nearly six-month period he was held in connection
with the contempt charges, he was also “incarcerated while awaiting the disposition of [a]
firearm charge.” He thus maintains that “[t]he ‘time-served’ period of incarceration was
not specifically imposed for the contempt charge[s] but, rather, was the result of the
pending firearm charge that was withdrawn” and that “[t]he record fails to reflect that the
sentencing judge specifically considered” how much time Myrick had served in pretrial
detention when imposing the time-served sentence. He thus concludes that he was not
sentenced to “a specific term of incarceration of greater than 30 days” and therefore that
the contempt convictions should not have been counted.
The state court records, however, indicate that when Myrick was in custody from
August 28, 2021, to February 15, 2022, it was in connection with two specified charges —
namely, the two contempt offenses. Additionally, after he was released on bond on
February 15, 2022, he pleaded nolo contendere to the two contempt charges on March 1,
2022, while the firearm charge was still pending. The record thus fails to support Myrick’s
assertion that his time-served sentence was not imposed for his contempt convictions.
Accordingly, we conclude that the district court’s assignment of the two criminal history
points for those contempt convictions was not erroneous.
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C
For his final arguments as to sentencing, Myrick contends first that the district court
procedurally erred in how it classified the methamphetamine recovered from the car he was
driving. While the methamphetamine was treated as “actual” (i.e., pure), as distinct from
a mixture or substance containing “methamphetamine,” Myrick suggests that “the purity
of the methamphetamine introduced in this case was never sufficiently . . . proven” to treat
it as “actual” when calculating his Guidelines range. But, as the government points out,
that is simply wrong. At trial, the government presented evidence that the 138 grams of
methamphetamine taken from Myrick’s car was tested at least twice and that the results
showed that those 138 grams contained at least “100 grams of actual methamphetamine.”
Thus, Myrick was accountable for at least 100 grams of “Methamphetamine (actual),”
which alone supported the base offense level of 30 that the court applied. See U.S.S.G.
§ 2D1.1(c)(5).
Myrick also contends that the district court failed adequately to explain why it
rejected his request for a downward variance based on his public policy arguments
pertaining to the difference in how the Guidelines treat “Methamphetamine (actual)” as
compared to a mixture or substance containing methamphetamine. But his argument
merely amounts to a disagreement with the court’s expressed judgment. The court heard
extensive arguments from both defense counsel and the government on Myrick’s request
for a variance based on the Guidelines’ treatment of methamphetamine. And during the
back-and-forth with Myrick’s counsel in particular, the court made clear why it did not
agree with Myrick’s position on methamphetamine. See United States v. Nance, 957 F.3d
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204, 213 (4th Cir. 2020). While counsel argued that there was no reason to apply a “10-
to-1 ratio” between methamphetamine and actual methamphetamine, the court interjected
to state that “[o]ne is more lethal than the other.” And it added that it could not “imagine”
varying downward on this basis “on the facts that we have before us.” When Myrick’s
counsel referenced other district court decisions critiquing the methamphetamine disparity,
the court stated that it did not “know what the facts were in those particular cases” and that
it was “focusing only on the drugs at hand here, and the circumstances before [it].” Clearly,
the court considered Myrick’s argument during sentencing, and we conclude that it did not
abuse its discretion in rejecting it. See United States v. Williams, 19 F.4th 374, 378 (4th
Cir. 2021).
IV
Finally, Myrick contends that there was insufficient evidence for the jury to find
that the firearms found in the car he was driving were possessed “in furtherance of a drug
trafficking crime” and that, instead, they were “merely present with the drugs.”
After Myrick crashed his car and fled, law enforcement found three loaded
handguns, $5,000 worth of controlled substances, and two digital scales in the car. We
have previously recognized that whether evidence establishes “the requisite nexus between
the firearms and the drug trafficking crime . . . ‘is ultimately a factual question’” and that
“‘the fact finder is free to consider the numerous ways in which a firearm might further or
advance drug trafficking.’” United States v. Moore, 769 F.3d 264, 269–70 (4th Cir. 2014)
(quoting United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002)). Among the several
19 USCA4 Appeal: 23-4768 Doc: 58 Filed: 08/13/2025 Pg: 20 of 20
factors that a factfinder might consider are the “accessibility of the firearm,” “whether the
gun [was] loaded,” the “proximity” of the guns to the drugs, “and the time and
circumstances under which the gun [was] found.” Lomax, 293 F.3d at 705 (quoting United
States v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir. 2000)). We conclude that the
circumstances here are sufficient to support the jury’s finding that Myrick possessed the
firearms in furtherance of this drug offense.
* * *
For all the reasons given, the judgment of the district court is
AFFIRMED.