     Case: 19-11223      Document: 00515493913         Page: 1    Date Filed: 07/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-11223                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                          July 17, 2020

UNITED STATES OF AMERICA,                                                Lyle W. Cayce
                                                                              Clerk
                                                 Plaintiff-Appellee

v.

ALICIA LYNN RODDY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-135-1


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       Alicia Lynn Roddy was sentenced to 235 months of imprisonment
following her guilty plea to possession with the intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). She
challenges the district court’s calculation of the sentencing guidelines range
under U.S.S.G. § 2D1.1, asserting that the court reversibly erred by including
in the drug quantity the 1,000 grams of methamphetamine that she observed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-11223

in a Ziploc bag in her supplier’s house while she was purchasing an ounce of
methamphetamine. Inclusion of that amount of methamphetamine increased
her base offense level from 30 to 32. The district court found that the subject
methamphetamine was properly included in Roddy’s drug quantity because it
was “relevant conduct” as it was a part of Roddy’s and her drug supplier’s
“jointly undertaken criminal activity” under U.S.S.G. § 1B1.3(a)(1)(B).
      We review findings of fact such as attributable drug quantity for clear
error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). “A
factual finding is not clearly erroneous as long as it is plausible in light of the
record as a whole.” Id. (internal quotation marks and citation omitted).
      “Under [§ 2D1.1(c)] of the Guidelines, the offense level of a defendant
convicted of a drug trafficking offense is determined by the quantity of drugs
involved.” United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994).
“[T[he applicable drug quantity includes not only drugs with which the
defendant was directly involved, but also drugs that can be attributed to him
as part of his ‘relevant conduct.’” United States v. Foy, 28 F.3d 464, 476 (5th
Cir. 1994).   “[I]n the case of a jointly undertaken criminal activity,” the
defendant is responsible for “all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity, (ii) in
furtherance of that criminal activity, and (iii) reasonably foreseeable in
connection with that criminal activity.” § 1B1.3(a)(1)(B) & comment. (n.3(A)).
Notably, it is insufficient that the subject conduct was merely foreseeable to
the defendant; rather, in order to constitute “jointly undertaken criminal
activity,” the defendant must agree to undertake the activity. United States v.
Smith, 13 F.3d 860, 867 (5th Cir. 1994).
      Here, the record only supports a finding that the agreement, if any,
between Roddy and her supplier was for the regular sale of small quantities of



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                                No. 19-11223

methamphetamine. As in Smith, there is nothing in the record establishing—
and the district court made no corresponding finding—that any conspiracy or
joint undertaking between Roddy and her supplier involved the additional
methamphetamine that she observed at her supplier’s house or, stated
differently, that Roddy “agreed to conspire with [her supplier] with regard to
any amounts of [methamphetamine he] possessed” beyond what he sold to
Roddy. Id.; see also United States v. Dean, 59 F.3d 1479, 1495 (5th Cir. 1995);
United States v. Maseratti, 3 F.3d 330, 340 (5th Cir. 1993); United States v.
Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993). Accordingly, the district court’s
finding that the methamphetamine at issue constituted “relevant conduct” was
not plausible, and its inclusion of that methamphetamine in Roddy’s drug
quantity was clear error. See Betancourt, 422 F.3d at 246.
      CONVICTION         AFFIRMED;        SENTENCE           VACATED      AND
REMANDED.




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