Case: 18-51034      Document: 00515239286         Page: 1    Date Filed: 12/17/2019




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

                                                                                FILED
                                    No. 18-51034                        December 17, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSEPH RAY SHARP, also known as Joseph Sharp,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-167-2


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Joseph Ray Sharp appeals the 121-month sentence imposed by the
district court after his jury conviction for conspiracy to possess with intent to
distribute five or more grams of actual methamphetamine and maintaining a
drug involved premises. He argues that (1) the district court clearly erred in
determining the drug quantity attributable to him under U.S.S.G. § 2D1.1; and
(2) the district court clearly erred in increasing his offense level by two points


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 18-51034

under § 2D1.1(b)(1) based on its finding that a dangerous weapon was
possessed.
      Because Sharp raised these issues in the district court, we review the
district court’s application of the Guidelines de novo and its factual findings
for clear error. See United States v. Gomez-Alvarez, 

, 791 (5th Cir.
2015). The district court’s findings concerning the drug quantity and whether
a dangerous weapon was possessed are factual findings reviewed for clear
error. United States v. Cisneros-Gutierrez, 

, 764-65 (5th Cir.
2008). A factual determination is not clearly erroneous if it is plausible in view
of the record as a whole. United States v. Zamora-Salazar, 

, 836
(5th Cir.), cert. denied, 

(2017).
      The trial evidence and the information in the presentence report (PSR)
established officers conducted surveillance of a residence in Odessa, Texas, and
discovered that Troy and Jimmy Martinez were selling methamphetamine at
the residence and that Sharp was renting the residence.               When officers
obtained and executed a search warrant, they found 9.27 grams of
methamphetamine in an open box in one bedroom occupied by Sharp and 33.8
grams of methamphetamine in the bathroom shower next to the other bedroom
occupied by his codefendants. All of the methamphetamine was individually
packaged for distribution. On the codefendants’ bed, officers found a loaded
firearm. They also found a bulletproof vest and a large duffle bag containing
228.4 grams of marijuana, glass pipes, digital scales, glass water bongs, small
plastic baggies, and a box of ammunition in the closet of that bedroom. In the
kitchen area, they found drug paraphernalia in plain view. After receiving a
Miranda 1 warning, Sharp admitted in a recorded interview that he was aware
of the drug trafficking going on in the residence and referred to his house as a


      1   Miranda v. Arizona, 

(1966).


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                                 No. 18-51034

“trap house” where individuals go to purchase and use narcotics; he did not
charge Jimmy and Troy Martinez any rent; and he received quantities of
methamphetamine from Jimmy and Troy Martinez that could have been
provided in exchange for rent. In view of this evidence, it was reasonably
foreseeable to Sharp that his codefendants would possess additional quantities
of methamphetamine. See United States v. Hinojosa, 

, 415 (5th
Cir. 2014). The district court’s finding that Sharp was responsible for 43.07
grams of methamphetamine was not clearly erroneous because it was plausible
in view of the record as a whole. See 

.
       The district court did not err in imposing a two-level enhancement under
§ 2D1.1(b)(1) based on its finding that a dangerous weapon was possessed. The
trial evidence and the information in the PSR established that Sharp was
aware of the drug trafficking that occurred at his residence, he allowed Troy
and    Jimmy    Martinez   to   stay   at   the   residence,     and   he   accepted
methamphetamine from them.             Sharp must have been aware of the
methamphetamine and drug paraphernalia found in plain view in the open box
in his bedroom and the drug paraphernalia found in plain view in the kitchen
area. The fact that he may not have known about the firearm or exercised
possession over it is immaterial. See United States v. Rodriguez-Guerrero, 

, 196 (5th Cir. 2015); United States v. Garza, 

, 285-86 (5th
Cir. 1997). In view of this evidence, it was reasonably foreseeable to Sharp
that a coconspirator would possess a firearm during the commission of the
conspiracy offense. See 

; United States v.
Aguilera-Zapata, 

, 1215-16 (5th Cir. 1990). The district court’s
finding that the offense involved possession of a dangerous weapon was not
clearly erroneous because it was plausible in view of the record as a whole. See

; 

.



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                                No. 18-51034

      At the sentencing hearing, the district court imposed a three-year term
of supervised release for maintaining a drug involved premises, which is the
statutory maximum supervised release term for that offense. Because the
written judgment incorrectly states that the district court imposed a five-year
term of supervised release for that offense, we modify the judgment and affirm
as modified.
      AFFIRMED AS MODIFIED.




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