IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-11223

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALICIA LYNN RODDY,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-135-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Alicia Lynn Roddy was sentenced to 235 months of imprisonment 

following her guilty plea to possession with the intent to distribute 

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). She 

challenges the district court’s calculation of the sentencing guidelines range 

under U.S.S.G. § 2D1.1, asserting that the court reversibly erred by including 

in the drug quantity the 1,000 grams of methamphetamine that she observed 

* 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

July 17, 2020

Lyle W. Cayce

Clerk

 Case: 19-11223 Document: 00515493913 Page: 1 Date Filed: 07/17/2020
No. 19-11223

2

in a Ziploc bag in her supplier’s house while she was purchasing an ounce of 

methamphetamine. Inclusion of that amount of methamphetamine increased 

her base offense level from 30 to 32. The district court found that the subject 

methamphetamine was properly included in Roddy’s drug quantity because it 

was “relevant conduct” as it was a part of Roddy’s and her drug supplier’s 

“jointly undertaken criminal activity” under U.S.S.G. § 1B1.3(a)(1)(B).

We review findings of fact such as attributable drug quantity for clear 

error. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). “A 

factual finding is not clearly erroneous as long as it is plausible in light of the 

record as a whole.” Id. (internal quotation marks and citation omitted). 

“Under [§ 2D1.1(c)] of the Guidelines, the offense level of a defendant 

convicted of a drug trafficking offense is determined by the quantity of drugs 

involved.” United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994). 

“[T[he applicable drug quantity includes not only drugs with which the 

defendant was directly involved, but also drugs that can be attributed to him 

as part of his ‘relevant conduct.’” United States v. Foy, 28 F.3d 464, 476 (5th 

Cir. 1994). “[I]n the case of a jointly undertaken criminal activity,” the 

defendant is responsible for “all acts and omissions of others that were—

(i) within the scope of the jointly undertaken criminal activity, (ii) in 

furtherance of that criminal activity, and (iii) reasonably foreseeable in 

connection with that criminal activity.” § 1B1.3(a)(1)(B) & comment. (n.3(A)). 

Notably, it is insufficient that the subject conduct was merely foreseeable to 

the defendant; rather, in order to constitute “jointly undertaken criminal 

activity,” the defendant must agree to undertake the activity. United States v. 

Smith, 13 F.3d 860, 867 (5th Cir. 1994).

Here, the record only supports a finding that the agreement, if any,

between Roddy and her supplier was for the regular sale of small quantities of 

 Case: 19-11223 Document: 00515493913 Page: 2 Date Filed: 07/17/2020
No. 19-11223

3

methamphetamine. As in Smith, there is nothing in the record establishing—

and the district court made no corresponding finding—that any conspiracy or 

joint undertaking between Roddy and her supplier involved the additional 

methamphetamine that she observed at her supplier’s house or, stated 

differently, that Roddy “agreed to conspire with [her supplier] with regard to 

any amounts of [methamphetamine he] possessed” beyond what he sold to 

Roddy. Id.; see also United States v. Dean, 59 F.3d 1479, 1495 (5th Cir. 1995);

United States v. Maseratti, 3 F.3d 330, 340 (5th Cir. 1993); United States v.

Evbuomwan, 992 F.2d 70, 74 (5th Cir. 1993). Accordingly, the district court’s 

finding that the methamphetamine at issue constituted “relevant conduct” was 

not plausible, and its inclusion of that methamphetamine in Roddy’s drug 

quantity was clear error. See Betancourt, 422 F.3d at 246.

CONVICTION AFFIRMED; SENTENCE VACATED AND 

REMANDED.

 Case: 19-11223 Document: 00515493913 Page: 3 Date Filed: 07/17/2020