United States v. Tharp

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG BYRON THARP,
Defendant-Appellant.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CR-32-1
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Craig Byron Tharp appeals his conditional guilty-plea
conviction for being a felon in possession of a firearm and his
sentence. Tharp argues that the district court erred in denying
his motion to suppress the evidence seized from his residence.
Based on the evidence presented at the sentencing hearing, the
district court did not err in determining that the initial search
of Tharp’s residence was based on his voluntary consent. See
United States v. Shelton, 337 F.3d 529, 531-32 (5th Cir. 2003).
*
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that this opinion should not be published and is not precedent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. 03-41140
-2-
While talking to Tharp, Cherokee County Sheriff’s Lieutenant Keith
Radcliff observed a shotgun and a hand-rolled cigarette in plain
view through the open door of Tharp’s trailer residence. See
United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998)
(Activities “such as leaving doors open, likewise compromise any
reasonable expectation of privacy.”). Radcliff asked to inspect
the cigarette, and Tharp voluntarily handed it to Radcliff.
Radcliff determined it was marijuana and asked Tharp whether he had
any other marijuana. Tharp voluntarily gave Radcliff the
additional marijuana that he had in a kitchen cabinet. When
Radcliff asked whether Tharp had any other narcotics, Tharp
responded negatively and stated that Radcliff could search the
trailer. See Shelton, 337 F.3d at 531-32. Radcliff searched the
kitchen area and observed several hand grenade bodies. Radcliff
asked Tharp to exit the trailer and handcuffed him. Radcliff’s
supervisor, John Rhodes, subsequently obtained a search warrant for
Tharp’s residence. Based on the evidence presented at the
suppression hearing, the district court did not err in denying
Tharp’s motion to suppress. See United States v. Alvarez, 6 F.3d
287, 289 (5th Cir. 1993).
Tharp argues that the district court used the wrong base
offense level, improperly determined the number of firearms
involved in the offense, improperly found the grenade parts and
pipe were destructive devices, and erred in not reducing his
offense level because the firearms were for sporting purposes.
No. 03-41140
-3-
Because Tharp was a prohibited person based on his prior felony
conviction and because he possessed a combination of parts which
could be converted into a destructive device under 26 U.S.C. § 5845
and U.S.S.G. § 2K2.1(a)(4)(B), the district court did not err in
determining that his base offense level was 20 under
§ 2K2.1(a)(4)(B). Tharp did not challenge the number of firearms
in the district court. The district court did not plainly err in
increasing his offense level by two points under § 2K2.1(b)(1)(A)
as Tharp possessed five firearms. See United States v. Rodriguez,
15 F.3d 408, 414-15 (5th Cir. 1994). Because the offense involved
a destructive device, the district court did not err in increasing
Tharp’s offense level by two points pursuant to § 2K2.1(b)(3) and
§ 2K2.1, comment, n.11. Because Tharp was subject to § 2K2.1(a)(4)
and because there was no lawful sporting purpose for a destructive
device, the district court did not err in determining that
§ 2K2.1(b)(2) was inapplicable.
Tharp argues that the district court’s use of relevant conduct
to determine his sentence violates the principles of Castillo v.
United States, 530 U.S. 120 (2000), Apprendi v. New Jersey, 530
U.S. 466 (2000), and Jones v. United States, 526 U.S. 227, 232
(1999). These cases are inapplicable to Tharp’s case as his 51-
month sentence did not exceed the statutory maximum of 10 years
under 18 U.S.C. § 922(g). Further, Tharp has not shown that these
cases preclude the use of relevant conduct for determining the
appropriate sentence under the United States Sentencing Guidelines.
No. 03-41140
-4-
He has also not shown that either Jones or Apprendi supports his
argument that the use of relevant conduct to establish his base
offense level violates his Sixth Amendment right to notice and a
jury trial.
Tharp argues that the Government did not present sufficient
evidence to establish that the grenade bodies and the galvanized
pipe found in his residence were capable of being assembled into
destructive devices. At the sentencing hearing, Special Agent
Crossland, a certified explosive specialist with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, testified that Tharp
possessed hand grenade bodies, spoon assemblies, a capped pipe,
four pounds of rifle powder, one pound of smokeless powder, and
green cannon fuse. Agent Crossland testified that, based on his
experience, these component parts could be assembled into a
destructive device. Because Tharp did not present any rebuttal
evidence, the district court was entitled to rely on the facts
presented in the Presentence Report and Agent Crossland’s
testimony. See United States v. Lowder, 148 F.3d 548, 552 (5th
Cir. 1998).
AFFIRMED.