United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 6, 2006
Charles R. Fulbruge III
Clerk
No. 05-50331
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WAYNE SILER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-254-11
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Michael Wayne Siler appeals his sentence following his
guilty-plea conviction for conspiracy to manufacture
methamphetamine. Siler challenges two sentencing enhancements
for creating a substantial risk of harm to the life of a minor
and possession of a firearm.
Although the guidelines are advisory following United States
v. Booker, 543 U.S. 220, 125 S. Ct. 738, 756-57 (2005), this
court continues to review factual findings with respect to the
*
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this opinion should not be published and is not precedent except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. 05-50331
-2-
application of adjustments for clear error. United States v.
Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.), cert. denied, 126
S. Ct. 268 (2005). If a factual finding is plausible in light of
the record as a whole, there is no clear error. United States v.
Parker, 133 F.3d 322, 330 (5th Cir. 1998).
Section 2D1.1(b)(5)(C) of the United States Sentencing
Guidelines provides that if an offense involved the manufacture
of methamphetamine and “created a substantial risk of harm to the
life of a minor or an incompetent,” the offense level shall be
increased by six levels. At sentencing, Agent Chuck Borgeson
testified that Jennifer Yount admitted that her children were
present when her home caught fire during a methamphetamine
“cook.” Agent Borgeson also interviewed several other
individuals who had been present during this fire; they all
confirmed that Siler had been there as well. In addition, Ronald
Kennedy stated that this particular methamphetamine “cook”
belonged to himself and Siler and that it was Siler who had
started the fire. Based on this evidence, we conclude that the
district court did not clearly err in imposing this enhancement.
See United States v. Golden, 17 F.3d 735, 736 (5th Cir. 1994)
(“district court may rely on uncorroborated hearsay testimony in
making factual findings at sentencing as long as the hearsay
evidence carries a sufficient indicia of reliability”).
Section 2D1.1(b)(1) of the Guidelines provides that a
defendant’s offense level is to be increased by two levels “[i]f
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a dangerous weapon (including a firearm) was possessed.” The
district court found that the enhancement was proper because
Siler and Rodney Kennedy had jointly possessed a firearm.
However, the evidence presented at sentencing does not support a
finding of joint possession. Agent Borgeson testified that
Rodney Kennedy had told him that the firearm discovered in the
vehicle belonged to Siler; Agent Borgeson also testified that
other individuals told him that Siler “always” possessed a
firearm and that they could not recall Kennedy ever possessing a
firearm. Because the evidence does not support a finding of
joint possession, we conclude that the district court clearly
erred in imposing the firearm enhancement on the basis of joint
possession. The removal of this two-level enhancement does not
alter the sentencing range recommended by the Guidelines, which
was 360 months to life imprisonment. The statutory maximum
sentence for Siler’s offense was 240 months, and accordingly, a
240-month sentence was imposed. Therefore, the inclusion of the
firearm enhancement in calculating the Guidelines range was
harmless error. See FED. R. CRIM. P. 52(a).
AFFIRMED.