United States v. Barth ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-50492
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN ROBERT BARTH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:03-CR-124-14-HLH
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges
PER CURIAM:*
Steven Robert Barth appeals his jury-trial conviction and
sentence for conspiracy to possess with intent to distribute 100
kilograms or more of marijuana; conspiracy to import 100 kilograms
or more marijuana; and using, carrying, and possessing
semiautomatic assault rifles in furtherance of a drug-trafficking
crime. Barth was sentenced to 241 months in prison.
Barth first argues that the evidence was insufficient to
sustain his convictions. A reasonable jury could have found beyond
*
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this opinion should not be published and is not precedent except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. 04-50492
-2-
a reasonable doubt from the evidence that Barth knew that Arlo
Arreola and his associates were smuggling drugs into the United
States and distributing them and that he knowingly joined the
conspiracies and possessed the assault weapons in furtherance of
those drug-trafficking crimes. United States v. Ivey, 949 F.2d
759, 766 (5th Cir. 1991); 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
846; 21 U.S.C. §§ 952 and 960(b)(1); 18 U.S.C. § 924(c).
Barth additionally argues for the first time on appeal that he
should be resentenced on his drug-trafficking conspiracy
convictions in light of United States v. Booker. This claim fails
to meet the plain-error standard because Barth has not shown that
the error affected his substantial rights. See United States v.
Bringier, 405 F.3d 310, 316 (5th Cir. 2005), petition for cert.
filed (Jul. 26, 2005) (No. 05-5535); United States v.
Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005).
However, we do find that Barth’s argument that his convictions
and sentences for carrying a firearm in connection with a drug-
trafficking offense are multiplicitous and violate double jeopardy
is meritorious. United States v. Privette, 947 F.2d 1259, 1262
(5th Cir. 1991). Accordingly, the case is REMANDED to the district
court so that it may vacate one of the firearm convictions and
resentence Barth as to the firearm convictions.
AFFIRMED IN PART; VACATED AND REMANDED FOR RESENTENCING.