     Case: 11-50544     Document: 00511872815         Page: 1     Date Filed: 05/31/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 31, 2012
                                      No. 11-50544
                                    c/w No. 11-50560                       Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GARY TRENT ICE,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 6:10-CR-264-3
                             USDC No. 6:10-CR-265-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        In this consolidated appeal, Gary Trent Ice appeals his sentences for
conspiracy to possess with intent to distribute methamphetamine and possession
of a firearm by an unlawful user or addict of a controlled substance. Ice was
sentenced to 60 months of imprisonment and three years of supervised release
for each offense to be served concurrently. He contends that the district court


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50544    Document: 00511872815       Page: 2   Date Filed: 05/31/2012

                                   No. 11-50544
                                 c/w No. 11-50560

erred by holding him accountable for all the methamphetamine seized from the
residence because his role in the conspiracy was limited to distributing small
amounts of methamphetamine.
      We review the district court’s interpretation or application of the
Guidelines de novo and its factual findings for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A finding of fact is not
clearly erroneous if it is plausible in light of the entire record. Id.
      In the case of a “jointly undertaken criminal activity,” a defendant’s
offense level is determined on the basis of “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal activity.”
§ 1B1.3(a)(1)(B).
      Methamphetamine was stored, packaged, and distributed in the residence
Ice shared with his father. Ice’s father supplied Ice with methamphetamine,
which Ice sold in small amounts on multiple occasions over a period of time and
offered to sell to others. Since Ice’s participation in the conspiracy was not
limited to a single transaction or specific quantity of drugs, evidence that he
distributed small amounts of methamphetamine in comparison to his father does
not compel the conclusion that the scope of his agreement was limited to
distributing small amounts. Therefore, the district court’s conclusion that all the
methamphetamine found in the residence was within the scope of his agreement
was plausible in light of the record as a whole and, therefore, not clearly
erroneous. See United States v. Smith, 13 F.3d 860, 865 (5th Cir. 1994).
      Even if the scope of criminal activity Ice agreed to undertake was more
limited, the district court was permitted to approximate the amount of
methamphetamine attributable to Ice. See United States v. Puig-Infante, 19
F.3d 929, 942 (5th Cir. 1994). Ice provides no argument or basis for determining
the portion of the methamphetamine found in the residence that would have
been given to him for distribution. Thus, he has failed to show that it was

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   Case: 11-50544     Document: 00511872815       Page: 3     Date Filed: 05/31/2012

                                     No. 11-50544
                                   c/w No. 11-50560

clearly   erroneous    for   the   district   court   to    conclude   that   all   the
methamphetamine found in the residence was within the scope of his agreement.
      The judgment of the district court is AFFIRMED.




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