United States v. Siler , 166 F. App'x 116 ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 February 6, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-50331
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MICHAEL WAYNE SILER,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:03-CR-254-11
    --------------------
    Before JOLLY, DAVIS, and OWEN, Circuit Judges.
    PER CURIAM:*
    Michael Wayne Siler appeals his sentence following his
    guilty-plea conviction for conspiracy to manufacture
    methamphetamine.   Siler challenges two sentencing enhancements
    for creating a substantial risk of harm to the life of a minor
    and possession of a firearm.
    Although the guidelines are advisory following United States
    v. Booker, 
    543 U.S. 220
    , 
    125 S. Ct. 738
    , 756-57 (2005), this
    court continues to review factual findings with respect to the
    *
    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    this opinion should not be published and is not precedent except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.
    No. 05-50331
    -2-
    application of adjustments for clear error.    United States v.
    Villanueva, 
    408 F.3d 193
    , 203 & n.9 (5th Cir.), cert. denied, 
    126 S. Ct. 268
     (2005).   If a factual finding is plausible in light of
    the record as a whole, there is no clear error.    United States v.
    Parker, 
    133 F.3d 322
    , 330 (5th Cir. 1998).
    Section 2D1.1(b)(5)(C) of the United States Sentencing
    Guidelines provides that if an offense involved the manufacture
    of methamphetamine and “created a substantial risk of harm to the
    life of a minor or an incompetent,” the offense level shall be
    increased by six levels.   At sentencing, Agent Chuck Borgeson
    testified that Jennifer Yount admitted that her children were
    present when her home caught fire during a methamphetamine
    “cook.”   Agent Borgeson also interviewed several other
    individuals who had been present during this fire; they all
    confirmed that Siler had been there as well.   In addition, Ronald
    Kennedy stated that this particular methamphetamine “cook”
    belonged to himself and Siler and that it was Siler who had
    started the fire.    Based on this evidence, we conclude that the
    district court did not clearly err in imposing this enhancement.
    See United States v. Golden, 
    17 F.3d 735
    , 736 (5th Cir. 1994)
    (“district court may rely on uncorroborated hearsay testimony in
    making factual findings at sentencing as long as the hearsay
    evidence carries a sufficient indicia of reliability”).
    Section 2D1.1(b)(1) of the Guidelines provides that a
    defendant’s offense level is to be increased by two levels “[i]f
    No. 05-50331
    -3-
    a dangerous weapon (including a firearm) was possessed.”    The
    district court found that the enhancement was proper because
    Siler and Rodney Kennedy had jointly possessed a firearm.
    However, the evidence presented at sentencing does not support a
    finding of joint possession.   Agent Borgeson testified that
    Rodney Kennedy had told him that the firearm discovered in the
    vehicle belonged to Siler; Agent Borgeson also testified that
    other individuals told him that Siler “always” possessed a
    firearm and that they could not recall Kennedy ever possessing a
    firearm.   Because the evidence does not support a finding of
    joint possession, we conclude that the district court clearly
    erred in imposing the firearm enhancement on the basis of joint
    possession.   The removal of this two-level enhancement does not
    alter the sentencing range recommended by the Guidelines, which
    was 360 months to life imprisonment.    The statutory maximum
    sentence for Siler’s offense was 240 months, and accordingly, a
    240-month sentence was imposed.    Therefore, the inclusion of the
    firearm enhancement in calculating the Guidelines range was
    harmless error.   See FED. R. CRIM. P. 52(a).
    AFFIRMED.
    

Document Info

Docket Number: 05-50331

Citation Numbers: 166 F. App'x 116

Judges: Davis, Jolly, Owen, Per Curiam

Filed Date: 2/6/2006

Precedential Status: Non-Precedential

Modified Date: 8/2/2023