                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                                                            October 11, 2006
                        FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk


                             No. 05-30332



     UNITED STATES OF AMERICA,

                                        Plaintiff-Appellee,

                                  v.

     JASON PAUL SEVERIN,

                                        Defendant-Appellant.



         Appeal from the United States District Court for the
                     Eastern District of Louisiana
                               (04-CR-81)



Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Jason Paul Severin challenges his sentence of 90 months

imprisonment for his participation in a multi-defendant conspiracy

to distribute ecstasy, and his concurrent sentence of 48 months for

using a telephone in commission of a drug offense.     We vacate in

part and affirm in part.




     *
      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this opinion should not be published and is not precedent except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.
             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

     Severin pleaded guilty to two counts of a multi-count, multi-

defendant indictment: (count one) conspiring to possess with the

intent to distribute MDMA1, MDA, and marijuana, and (count seven)

using    a   communications   facility   in    furtherance    of    a    drug

trafficking offense.      Severin also signed a lengthy factual basis.

     The probation officer prepared a pre-sentence report (PSR)

assigning Severin a base offense level of 28 based on the finding

that his offense involved 500 tablets of MDMA and MDA — the

equivalent of 625 kilograms of marijuana.           The PSR recommended

increasing    Severin’s    offense   level   two   levels   based   on    his

possession of a firearm during the commission of the offense, and

decreasing it three levels for his acceptance of responsibility,

resulting in a total offense level of 27.             Combined with his

criminal history category of III, that offense level produced a

recommended sentencing guidelines range of 87 to 108 months of

imprisonment as to count one, and a 48-month term as to count

seven.

                          II. STANDARD OF REVIEW

     We do not afford deference to the district court in the review

of mathematical error in a sentencing guideline calculation.             Koon

v. United States, 518 U.S. 81, 98 (1996).            Therefore, we would


     1
      “MDMA” refers to 3, 4 methylenedioxymethylamphetamine HCl.
“MDA” refers to 3, 4 methylenedioxyamphetamine HCl. The drugs are
more commonly known as ecstasy.

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ordinarily review Severin’s first claim of guideline application

error de novo.     United States v. Villegas, 404 F.3d 355, 359 (5th

Cir. 2005).   Because Severin failed to object to the guideline

application in the district court, however, we review his claim for

plain error only.    United States v. Rodriguez, 15 F.3d 408, 414–15

(5th Cir. 1994).

     Severin’s     other   claims   concern   factual   findings   during

sentencing.   We normally review a court’s factual findings during

sentencing for clear error, unless the defendant fails to object,

in which case the standard of review is plain error.         See United

States v. Salado, 339 F.3d 285, 294 (5th Cir. 2003)(citing United

States v. Cabral-Castillo, 35 F.3d 182, 189 (5th Cir. 1994);

Rodriguez, 15 F.3d at 414–15; see also United States v. Castillo,

430 F.3d 230, 242 (5th Cir. 2005) (stating that if party fails to

timely raise issue in district court, we generally “will review it

for plain error unless the party made its position clear to the

district court and to have objected would have been futile”).

     Severin contends that he objected to the firearm enhancement

during sentencing when he personally testified that he used the

rifle only for squirrel hunting, thereby making the district court

aware of the issue.        However, an imprecise objection such as

Severin’s, which offered no legal basis as to why the clarification

was relevant, is insufficient to preserve the claimed error for

review.   See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.


                                     3
1995). Rule 51 of the Federal Rules of Criminal Procedure requires

a party opposing district court action to preserve a claim of error

by informing the court of “the party’s objection to the court’s

action and the grounds for that objection.”                  Fed. R. Crim. P.

51(b).    Severin’s statements to the court merely sought to clarify

what sort of gun the rifle was.

     Similarly, Severin did not object to the district court’s

criminal history calculation. The district court acknowledged that

Severin’s    probation     was   not   being    revoked     because   the   state

probation officer believed that his participation in the conspiracy

occurred prior to the commencement of his state probation. It does

not follow, however, that the court was therefore on notice of any

objection by Severin to the enhancement.                   Severin objected to

neither     the   weapon    enhancement        nor   the     criminal   history

calculation, and there is no indication that an objection would

have been futile.    We therefore review both issues for plain error.

     Under plain error review, Severin must show (1) that an error

occurred, (2) that the error was plain, which means “clear” or

“obvious,” and (3) that the error affected his substantial rights.

United States v. Cotton, 535 U.S. 625, 631–32 (2002).                   “If all

three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if . . . the error

seriously affects the fairness, integrity, or public reputation of

judicial    proceedings.”        Id.   at   631   (internal    quotations     and



                                        4
citations omitted).

                           III. DISCUSSION

     A.   The Drug Quantity Calculation

     Severin   admitted   in   the   factual   basis   that   his   offense

involved 500 pills of MDA and MDMA, which according to the drug

equivalency table is the equivalent of 62.5 kilograms of marijuana,

and produces a base offense level of 22.           The PSR erroneously

indicated, however, that Severin’s 500 pills were the equivalent of

625 kilograms of marijuana, resulting in a base level of 28.          After

considering the other sentencing adjustments, the sentencing range

for Severin should have been 46 to 57 months of imprisonment as to

count one, and 46 to 48 months imprisonment as to count seven.          See

U.S.S.G. Ch. 5, Pt. A., Sentencing Table.       Instead, because of the

calculation error, Severin’s sentencing range was 87–108 months as

to count one, and 48 months as to count seven.         He was sentenced,

within that range, to 90 months and 48 months respectively.

     The government concedes that Severin’s sentence should be

remanded to correct the mathematical error.            Indeed, the error

occurred, was obvious, and affected both Severin’s substantial

rights as well as the fairness of the judicial proceedings.              We

therefore exercise our discretion and vacate and remand as to the

calculation error.

     B.   The Firearm Enhancement

     The sentencing guidelines provide that a defendant’s sentence



                                     5
should be increased by two levels whenever, in a crime involving

the manufacture, import, export, trafficking, or possession of

drugs,    the    defendant   possessed    a   dangerous   weapon.      See   §

2D1.1(b)(1); United States v. Gaytan, 74 F.3d 545, 559 (5th Cir.

1996).    In order to apply this enhancement, “[t]he government has

the burden of proof . . . of showing by a preponderance of the

evidence ‘that a temporal and spatial relation existed between the

weapon, the drug trafficking activity, and the defendant.’” United

States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001)(quoting United

States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998)).           “Under this

standard, the government must show that ‘the weapon was found in

the same location where drugs or drug paraphernalia are stored or

where part of the transaction occurred.’” Id. (quoting United

States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993)).                      A

defendant’s simple possession of a firearm at a point in time

during which a conspiracy is in progress is not sufficient to apply

the enhancement.       Id. at 246.

     The PSR adopted by the district court indicated that federal

agents seized a total of five firearms from three individuals,

including the seizure of a .22 caliber rifle from Severin.                The

district court properly adopted the facts contained in the PSR

without     further    review,    given   that   there    was   an   adequate

evidentiary basis and the defendant failed to present rebuttal

evidence.       See id. at 239.   Nevertheless, the facts in the PSR do


                                      6
not   establish      that    Severin      possessed       a   firearm      within    the

contemplation of § 2D1.1(b)(1).

      Severin’s attorney acknowledged during the sentencing hearing

that the rifle was found in Severin’s home, but nothing in the PSR,

factual basis, indictment, or hearing testimony suggested that

drugs were stored in the home or that drug transactions took place

there. Rather than establishing the requisite temporal and spatial

relation    between    Severin’s         rifle    and   the   drug     activity,     the

district court relied on Severin’s admission that the rifle was

“available”    to    him    during       the    conspiracy      had   he   needed    it.

Availability,     however,        does    not    constitute     both    temporal     and

spatial relation.          A gun may be “available” because of temporal

proximity, even in the absence of spatial proximity, but temporal

proximity    alone    is    not    sufficient       for   the    application        of   §

2D1.1(b)(1).      See Cooper, 274 F.3d at 246 (reversing for lack of

spatial proximity).         While additional facts might exist that would

establish temporal and spatial relation, those facts were not made

available to the district court.                 Rather, given Severin’s claims

that the rifle was for hunting squirrels, the established facts of

this case are more similar to the guidelines’ example of firearm

possession that would not support an enhancement: “an unloaded

hunting rifle in the closet.”             U.S.S.G. § 2D1.1 n.3.

      The government argues that even if no temporal or spatial

relation existed between Severin’s rifle and the drug conspiracy,

Severin can be held accountable for the firearms that were seized

                                           7
from his co-conspirators.        The government is correct that “one co-

conspirator may ordinarily be assessed a § 2D1.1(b)(1) increase in

view of another co-conspirator’s possession of a firearm during the

drug conspiracy so long as use of the weapon was reasonably

foreseeable.”    United States v. Mergerson, 4 F.3d 337, 350 (5th

Cir. 1993) (citation omitted).           The district court did not apply

the enhancement on the basis of the co-conspirators, however, and

thus made no findings as to foreseeability.             Furthermore, without

additional evidence, an enhancement based on the co-conspirators’

firearm possession succumbs to the same lack of temporal and

spatial relation as the enhancement based on Severin’s rifle.                The

record does not indicate where the co-conspirators’ weapons were

found and does not establish that they were found in the same

location where drugs or drug paraphernalia was stored, or where

part of the transaction occurred.

     For the foregoing reasons, Severin satisfies the first two

elements of plain error review — error occurred, and it was obvious

under this Court’s precedent.                As a result of the two-level

enhancement, the district court sentenced Severin to a 90-month

term of imprisonment, exceeding the 70-87 month guideline range for

Severin’s sentence in the absence of the enhancement. By virtue of

that sentencing disparity, the error affected Severin’s substantial

rights   and   also   affected    the    fairness,     integrity,    or   public

reputation of the judicial proceedings. The district court plainly

erred.     However,    inasmuch     as       no   objection   was   made,   upon

                                         8
resentencing,      the   district      court         may    consider       any    additional

evidence adduced by the parties bearing on the firearm issue.                              We

therefore vacate and remand as to the firearm enhancement.

      C.   The Criminal History Enhancement

      Section 4A1.1(d) of the sentencing guidelines provides that

the district court shall add two points to a defendant’s criminal

history score “if the defendant committed the instant offense while

under any criminal justice sentence, including probation . . . .”

We   have previously         held    that    the      §    4A1.1(d)    enhancement        “is

appropriate where a continuing offense begins before the offense

for which the defendant is under a criminal justice sentence

because    a   continuing      offense,         by    its    very   nature,        does   not

terminate      until   the    date    of    the      indictment       or    the    voluntary

termination of the illegal activity.”                      United States v. Santana-

Castellano, 74 F.3d 593, 598 (5th Cir. 1996) (internal quotation

marks and citations omitted).              Conspiracy is a continuing offense.

See, e.g., United States v. Bermea, 30 F.3d 1539, 1577 (5th Cir.

1994).

      Severin pleaded guilty to charges that he conspired to possess

with intent to distribute MDA and MDMA from prior to January 2003

until the indictment was issued on August 6, 2004.                           Furthermore,

there is no evidence suggesting that Severin withdrew from the

conspiracy at any time before the indictment was issued. Severin’s

state probation began on March 11, 2004, and he thus committed the

conspiracy offense while on probation. The district court did not

                                            9
err by adding two criminal history points under § 4A1.1(d), and we

affirm.

                          IV. CONCLUSION

     For the foregoing reasons, we VACATE Severin’s sentence as to

the drug quantity calculation and firearm enhancement, AFFIRM as to

the criminal history enhancement, and REMAND for resentencing.




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