United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-30917 ____________ FILED October 15, 2024 United States of America, Lyle W. Cayce Clerk Plaintiff—Appellee,

versus Dajuan Martin,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:22-CR-219-1 ______________________________ Before Dennis, Southwick, and Engelhardt, Circuit Judges. Leslie H. Southwick, Circuit Judge: Dajuan Martin pled guilty to one count of being a felon in possession of a firearm and was sentenced to 33 months of imprisonment. On appeal, he brings three challenges to his sentence. He concedes that one is foreclosed, while the government concedes that another is valid. The one contested challenge is whether it is proper to accept the Sentencing Guidelines’ com- mentary defining “large capacity magazine.” We conclude that it is proper to do so. Accordingly, we AFFIRM in part, VACATE in part and RE- MAND for further proceedings. Case: 23-30917 Document: 73-1 Page: 2 Date Filed: 10/15/2024

No. 23-30917

FACTUAL AND PROCEDURAL BACKGROUND Dajuan Martin was arrested after he was seen riding a scooter that had been stolen at gunpoint in New Orleans. As police pursued him, Martin took a Glock 26, 9mm semi-automatic handgun from his waistband and threw it away. The firearm was recovered. It contained a magazine in which there were 16 rounds of ammunition. Martin pled guilty to the single count in his indictment of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (PSR) calculated his total of- fense level at 12 with a criminal history category of III. The suggested Sen- tencing Guidelines range was 15 to 21 months. Four days before the sentenc- ing hearing, the government objected to the PSR base offense level. The gov- ernment argued that Sentencing Guidelines Section 2K2.1(a)(4)(B) required Martin’s base level be changed to 20 because he “possessed a firearm loaded with a magazine that could accept more than fifteen (15) rounds of ammuni- tion.” In response, Martin argued that although the Guidelines require a base level of 20 for the possession of a firearm capable of accepting a “large capacity magazine,” that term is not defined in the Guidelines. He argued it was error to rely on the Guidelines’ commentary, which defines “large ca- pacity magazine” as a magazine capable of holding 15 rounds. The district court rejected Martin’s argument and accepted a base of- fense level of 20 with a criminal history category of III. Martin was granted a three-point reduction for acceptance of responsibility. With a total offense level of 17, Martin’s new Guidelines range was 30 to 37 months imprison- ment. The district court denied Martin’s motion for a downward variance and sentenced him to 33 months of imprisonment followed by 3 years of su- pervised release. The district court orally pronounced several conditions of

2 Case: 23-30917 Document: 73-1 Page: 3 Date Filed: 10/15/2024

No. 23-30917

his