IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-51034

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSEPH RAY SHARP, also known as Joseph Sharp,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:18-CR-167-2

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Joseph Ray Sharp appeals the 121-month sentence imposed by the 

district court after his jury conviction for conspiracy to possess with intent to 

distribute five or more grams of actual methamphetamine and maintaining a 

drug involved premises. He argues that (1) the district court clearly erred in 

determining the drug quantity attributable to him under U.S.S.G. § 2D1.1; and 

(2) the district court clearly erred in increasing his offense level by two points 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 17, 2019

Lyle W. Cayce

Clerk

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No. 18-51034

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under § 2D1.1(b)(1) based on its finding that a dangerous weapon was 

possessed.

Because Sharp raised these issues in the district court, we review the 

district court’s application of the Guidelines de novo and its factual findings 

for clear error. See United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 

2015). The district court’s findings concerning the drug quantity and whether 

a dangerous weapon was possessed are factual findings reviewed for clear 

error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764-65 (5th Cir. 

2008). A factual determination is not clearly erroneous if it is plausible in view 

of the record as a whole. United States v. Zamora-Salazar, 860 F.3d 826, 836 

(5th Cir.), cert. denied, 138 S. Ct. 413 (2017).

The trial evidence and the information in the presentence report (PSR) 

established officers conducted surveillance of a residence in Odessa, Texas, and 

discovered that Troy and Jimmy Martinez were selling methamphetamine at 

the residence and that Sharp was renting the residence. When officers 

obtained and executed a search warrant, they found 9.27 grams of 

methamphetamine in an open box in one bedroom occupied by Sharp and 33.8 

grams of methamphetamine in the bathroom shower next to the other bedroom 

occupied by his codefendants. All of the methamphetamine was individually 

packaged for distribution. On the codefendants’ bed, officers found a loaded 

firearm. They also found a bulletproof vest and a large duffle bag containing 

228.4 grams of marijuana, glass pipes, digital scales, glass water bongs, small 

plastic baggies, and a box of ammunition in the closet of that bedroom. In the 

kitchen area, they found drug paraphernalia in plain view. After receiving a 

Miranda1 warning, Sharp admitted in a recorded interview that he was aware 

of the drug trafficking going on in the residence and referred to his house as a 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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“trap house” where individuals go to purchase and use narcotics; he did not 

charge Jimmy and Troy Martinez any rent; and he received quantities of 

methamphetamine from Jimmy and Troy Martinez that could have been 

provided in exchange for rent. In view of this evidence, it was reasonably 

foreseeable to Sharp that his codefendants would possess additional quantities 

of methamphetamine. See United States v. Hinojosa, 749 F.3d 407, 415 (5th 

Cir. 2014). The district court’s finding that Sharp was responsible for 43.07 

grams of methamphetamine was not clearly erroneous because it was plausible 

in view of the record as a whole. See Zamora-Salazar, 860 F.3d at 836. 

The district court did not err in imposing a two-level enhancement under

§ 2D1.1(b)(1) based on its finding that a dangerous weapon was possessed. The 

trial evidence and the information in the PSR established that Sharp was 

aware of the drug trafficking that occurred at his residence, he allowed Troy 

and Jimmy Martinez to stay at the residence, and he accepted 

methamphetamine from them. Sharp must have been aware of the 

methamphetamine and drug paraphernalia found in plain view in the open box 

in his bedroom and the drug paraphernalia found in plain view in the kitchen 

area. The fact that he may not have known about the firearm or exercised 

possession over it is immaterial. See United States v. Rodriguez-Guerrero, 805 

F.3d 192, 196 (5th Cir. 2015); United States v. Garza, 118 F.3d 278, 285-86 (5th 

Cir. 1997). In view of this evidence, it was reasonably foreseeable to Sharp

that a coconspirator would possess a firearm during the commission of the 

conspiracy offense. See Cisneros-Gutierrez, 517 F.3d at 766; United States v. 

Aguilera-Zapata, 901 F.2d 1209, 1215-16 (5th Cir. 1990). The district court’s 

finding that the offense involved possession of a dangerous weapon was not 

clearly erroneous because it was plausible in view of the record as a whole. See

Rodriguez-Guerrero, 805 F.3d at 196; Cisneros-Gutierrez, 517 F.3d at 764-65.

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At the sentencing hearing, the district court imposed a three-year term 

of supervised release for maintaining a drug involved premises, which is the 

statutory maximum supervised release term for that offense. Because the 

written judgment incorrectly states that the district court imposed a five-year 

term of supervised release for that offense, we modify the judgment and affirm 

as modified.

AFFIRMED AS MODIFIED.

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