Case: 16-11528 Document: 00514033456 Page: 1 Date Filed: 06/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11528
Fifth Circuit
FILED
Summary Calendar June 14, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
NIKIE NICOLE FRYE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-121-3
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Nikie Nicole Frye was convicted of conspiracy to possess with intent to
distribute a controlled substance and was sentenced to 120 months of
imprisonment and three years of supervised release. She contends that the
district court clearly erred in imposing the U.S.S.G. § 2D1.1(b)(1) enhancement
for possessing a dangerous weapon; the § 2D1.1(b)(12) enhancement for
maintaining a premises for the purpose of distributing a controlled substance;
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11528 Document: 00514033456 Page: 2 Date Filed: 06/14/2017
No. 16-11528
and the U.S.S.G. § 3B1.1(c) enhancement for being an organizer, leader,
manager, or supervisor. We AFFIRM.
1. Dangerous Weapon. It is not necessary to show that Frye actually
held a weapon when drugs were present. It is enough that a co-conspirator
possessed the weapon and that such possession was reasonably foreseeable to
Frye. United States v. Marquez, 685 F.3d 501, 507 (5th Cir. 2012). The
Presentence Report (PSR) reflects a witness who saw Frye’s boyfriend,
Timothy Nimerfroh, in possession of a gun while Nimerfroh and Frye were in
possession of methamphetamine. Other customers advised that Nimerfroh
carried a gun during drug transactions. The district court did not clearly err
in concluding that Nimerfroh’s weapon possession in connection with the drug
offense was reasonably foreseeable to Frye. United States v. King, 773 F.3d
48, 52 (5th Cir. 2014)(reviewing application of this enhancement under clear
error).
2. Maintaining a Premises. We recently examined this enhancement,
which we review for clear error, in the context of a defendant who claimed that
the premises were not his. See United States v. Guzman-Reyes, 853 F.3d 260,
263 (5th Cir. 2017). There, the defendant stored his drugs at another person’s
auto shop, paying for that privilege. We noted that this enhancement is “fact
intensive” and that the absence of a formal rental agreement is not
determinative. Id. at 264-65. Here, Frye admitted that Nimerfroh paid for
motel rooms for her to use to conduct drug transactions. The district court did
not clearly err in applying this enhancement.
3. Aggravating Role. Frye relies on United States v. Lewis, 476 F.3d
369, 377 (5th Cir. 2007) to argue that her recruitment of Ashleigh Allen, who
then participated for one month in distributing methamphetamine on behalf
of the conspiracy, cannot support a “leader or organizer” role enhancement.
2
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No. 16-11528
The particular part of Lewis upon which Frye relies 1 involved a challenge to a
conviction under 21 U.S.C. § 848(c)(2)(A) for continuing criminal enterprise
(thus involving a higher burden of proof) and concluded that evidence that
Lewis “recruited” another participant was insufficient (particularly in the face
of extensive contrary evidence of Lewis’s role). However, there the
“recruitment” consisted merely of Lewis, who was then in prison, telling
another inmate, who was being released, about the methamphetamine trade
in Odessa. Here, the PSR shows a much greater level of involvement by Frye
and also includes evidence that Frye arranged for an additional supplier
(Travis Cathey) for the enterprise. We conclude that the district court did not
clearly err in this regard.
In sum, the district court did not clearly err in applying these
enhancements. The judgment of the district court is AFFIRMED.
1 Later on in Lewis the leadership sentencing enhancement was addressed, and we
specifically noted the lack of evidence of recruitment as a factor in concluding the
enhancement was inappropriate. Id. at 389. Indeed “recruitment of accomplices” in one of
the factors noted in Comment 4 to U.S.S.G. § 3B1.1. See also United States v. Nava, 624 F.3d
226, 232-33 (5th Cir. 2010)(distinguishing Lewis).
3