* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41140

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRAIG BYRON THARP,

Defendant-Appellant.

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

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 6:02-CR-32-1

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

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Craig Byron Tharp appeals his conditional guilty-plea

conviction for being a felon in possession of a firearm and his

sentence. Tharp argues that the district court erred in denying

his motion to suppress the evidence seized from his residence.

Based on the evidence presented at the sentencing hearing, the

district court did not err in determining that the initial search

of Tharp’s residence was based on his voluntary consent. See

United States v. Shelton, 337 F.3d 529, 531-32 (5th Cir. 2003).

United States Court of Appeals

Fifth Circuit

F I L E D

June 2, 2004

Charles R. Fulbruge III

Clerk
No. 03-41140

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While talking to Tharp, Cherokee County Sheriff’s Lieutenant Keith

Radcliff observed a shotgun and a hand-rolled cigarette in plain

view through the open door of Tharp’s trailer residence. See

United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998)

(Activities “such as leaving doors open, likewise compromise any

reasonable expectation of privacy.”). Radcliff asked to inspect

the cigarette, and Tharp voluntarily handed it to Radcliff.

Radcliff determined it was marijuana and asked Tharp whether he had

any other marijuana. Tharp voluntarily gave Radcliff the

additional marijuana that he had in a kitchen cabinet. When

Radcliff asked whether Tharp had any other narcotics, Tharp

responded negatively and stated that Radcliff could search the

trailer. See Shelton, 337 F.3d at 531-32. Radcliff searched the

kitchen area and observed several hand grenade bodies. Radcliff

asked Tharp to exit the trailer and handcuffed him. Radcliff’s

supervisor, John Rhodes, subsequently obtained a search warrant for

Tharp’s residence. Based on the evidence presented at the

suppression hearing, the district court did not err in denying

Tharp’s motion to suppress. See United States v. Alvarez, 6 F.3d

287, 289 (5th Cir. 1993).

Tharp argues that the district court used the wrong base

offense level, improperly determined the number of firearms

involved in the offense, improperly found the grenade parts and

pipe were destructive devices, and erred in not reducing his

offense level because the firearms were for sporting purposes.
No. 03-41140

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Because Tharp was a prohibited person based on his prior felony

conviction and because he possessed a combination of parts which

could be converted into a destructive device under 26 U.S.C. § 5845

and U.S.S.G. § 2K2.1(a)(4)(B), the district court did not err in

determining that his base offense level was 20 under

§ 2K2.1(a)(4)(B). Tharp did not challenge the number of firearms

in the district court. The district court did not plainly err in

increasing his offense level by two points under § 2K2.1(b)(1)(A)

as Tharp possessed five firearms. See United States v. Rodriguez,

15 F.3d 408, 414-15 (5th Cir. 1994). Because the offense involved

a destructive device, the district court did not err in increasing

Tharp’s offense level by two points pursuant to § 2K2.1(b)(3) and

§ 2K2.1, comment, n.11. Because Tharp was subject to § 2K2.1(a)(4)

and because there was no lawful sporting purpose for a destructive

device, the district court did not err in determining that

§ 2K2.1(b)(2) was inapplicable. 

Tharp argues that the district court’s use of relevant conduct

to determine his sentence violates the principles of Castillo v.

United States, 530 U.S. 120 (2000), Apprendi v. New Jersey, 530

U.S. 466 (2000), and Jones v. United States, 526 U.S. 227, 232

(1999). These cases are inapplicable to Tharp’s case as his 51-

month sentence did not exceed the statutory maximum of 10 years

under 18 U.S.C. § 922(g). Further, Tharp has not shown that these

cases preclude the use of relevant conduct for determining the

appropriate sentence under the United States Sentencing Guidelines.
No. 03-41140

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He has also not shown that either Jones or Apprendi supports his

argument that the use of relevant conduct to establish his base

offense level violates his Sixth Amendment right to notice and a

jury trial.

Tharp argues that the Government did not present sufficient

evidence to establish that the grenade bodies and the galvanized

pipe found in his residence were capable of being assembled into

destructive devices. At the sentencing hearing, Special Agent

Crossland, a certified explosive specialist with the Bureau of

Alcohol, Tobacco, Firearms, and Explosives, testified that Tharp

possessed hand grenade bodies, spoon assemblies, a capped pipe,

four pounds of rifle powder, one pound of smokeless powder, and

green cannon fuse. Agent Crossland testified that, based on his

experience, these component parts could be assembled into a

destructive device. Because Tharp did not present any rebuttal

evidence, the district court was entitled to rely on the facts

presented in the Presentence Report and Agent Crossland’s

testimony. See United States v. Lowder, 148 F.3d 548, 552 (5th

Cir. 1998).

AFFIRMED.