United States v. Scott

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10260
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

TEASIE WINNELL SCOTT,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:18-CV-20-5

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Regarding her guilty-plea conviction for conspiracy to possess, with
intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841 and
846, Teasie Winnell Scott challenges two sentencing rulings: the district
court’s calculation of the relevant-conduct drug quantity, pursuant to
Sentencing Guideline § 1B1.3(a)(1)(B); and its increasing her offense level
based on firearm possession, pursuant to Guideline § 2D1.1(b)(1).

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
United States Court of Appeals
Fifth Circuit
FILED
January 6, 2020

Lyle W. Cayce
Clerk
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No. 19-10260
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Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009).
In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error.
E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Both the court’s calculating the relevant-conduct drug quantity and applying
the two-offense-level, firearm-possession increase are factual findings,
affirmed unless implausible in the light of the whole record. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005) (drug quantity); United States v.
Eastland, 989 F.2d 760, 769 (5th Cir. 1993) (citation omitted) (firearm
possession).
Concerning Guideline § 1B1.3(a)(1)(B)’s relevant-conduct, drug-quantity
calculation, “in the case of a jointly undertaken criminal activity”, relevant
offense conduct includes “all acts and omissions of others that were[:] within
the scope of the jointly undertaken criminal activity, in furtherance of that
criminal activity, and reasonably foreseeable in connection with that criminal
activity . . .”. U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.3. “[D]rugs not specified in
the count of conviction may be considered in determining the offense level”. Id.
§ 2D1.1, cmt. n.5.
Scott does not challenge her admissions to having conspired with
numerous people to traffic in methamphetamine and knowingly allowing her
house to be used for such transactions. Ample record evidence documented
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those transactions. She asserts instead that she did not directly participate in
the transaction at issue; such direct participation, however, is not required.
See U.S.S.G. § 1B1.3(a)(1)(B) & cmt. n.3.
For Guideline § 2D1.1(b)(1)’s two-offense-level, firearm-possession
increase, the Government need only show another participant in the offense
possessed a firearm and defendant could have reasonably foreseen that
possession. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
The record establishes the purchaser, a confidential source, contacted Scott’s
cousin to purchase firearms. Her cousin instructed the purchaser to go to a
house to meet Scott, who entered his vehicle and guided him to another
residence, where they picked up an unidentified firearm supplier. Scott then
directed the purchaser to return to the initial house, where the sale occurred.
Even assuming, as Scott contends, that she was not physically in the room
when the sale occurred, it was not clear error to find another participant’s
possessing a firearm was reasonably foreseeable to her.
AFFIRMED.
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