United States v. Donihoo ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40616
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMMETT RAY DONIHOO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:01-CR-44-20)
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November 21, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Emmett Ray Donihoo appeals the district
court’s application of U.S.S.G. § 2D1.1(b)(1) to increase his
offense level for possession of a weapon during and in connection
with the drug conspiracy for which he was convicted. He argues
that possession of a firearm by George Ruff, a coconspirator, was
not foreseeable to him, thus application of § 2D1.1(b)(1) was
error.
*
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opinion should not be published and is not precedent except under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.
At sentencing, Sergeant Investigator Donald Fleming of the
Texas Department of Public Safety Narcotics testified that during
surveillance of the methamphetamine “cook” site, he observed Ruff
walking around carrying a sawed-off shotgun in close proximity to
Donihoo and the other participants in the cook. It can fairly be
inferred from Donihoo’s proximity to Ruff while Ruff carried the
sawed-off shotgun that Donihoo was aware of the existence of the
shotgun as well as its use during the cook, i.e., in connection
with the conspiracy. Also, Donihoo’s admission to the probation
officer that he believed Ruff was a “rough type” who had guns made
Ruff’s carrying of a weapon during the “cook” foreseeable, as did
the nature of the activity of “cooking” methamphetamine. See
United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir. 1987).
The court’s finding that Donihoo’s subsequent retraction of his
admission was not credible was not clearly erroneous in light of
the other evidence presented at sentencing and in the presentence
report. See United States v. Garza, 118 F.3d 278, 285 (5th Cir.
1997).
The district court did not clearly err in applying
§ 2D1.1(b)(1) to increase Donihoo’s sentence. See id.
AFFIRMED.
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