* 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this opinion should not be published and is not precedent except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

February 6, 2006

Charles R. Fulbruge III

Clerk

United States Court of Appeals

Fifth Circuit

FILED

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-50331

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL WAYNE SILER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:03-CR-254-11

--------------------

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
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
No. 05-50331

-3-

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.