* 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. 11-50544

c/w No. 11-50560

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GARY TRENT ICE,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 6:10-CR-264-3

USDC No. 6:10-CR-265-1

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

In this consolidated appeal, Gary Trent Ice appeals his sentences for

conspiracy to possess with intent to distribute methamphetamine and possession

of a firearm by an unlawful user or addict of a controlled substance. Ice was

sentenced to 60 months of imprisonment and three years of supervised release

for each offense to be served concurrently. He contends that the district court

United States Court of Appeals

Fifth Circuit

F I L E D

May 31, 2012

Lyle W. Cayce

Clerk
No. 11-50544

c/w No. 11-50560

2

erred by holding him accountable for all the methamphetamine seized from the

residence because his role in the conspiracy was limited to distributing small

amounts of methamphetamine.

We review the district court’s interpretation or application of the

Guidelines de novo and its factual findings for clear error. United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A finding of fact is not

clearly erroneous if it is plausible in light of the entire record. Id.

In the case of a “jointly undertaken criminal activity,” a defendant’s

offense level is determined on the basis of “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity.”

§ 1B1.3(a)(1)(B).

Methamphetamine was stored, packaged, and distributed in the residence

Ice shared with his father. Ice’s father supplied Ice with methamphetamine,

which Ice sold in small amounts on multiple occasions over a period of time and

offered to sell to others. Since Ice’s participation in the conspiracy was not

limited to a single transaction or specific quantity of drugs, evidence that he

distributed small amounts of methamphetamine in comparison to his father does

not compel the conclusion that the scope of his agreement was limited to

distributing small amounts. Therefore, the district court’s conclusion that all the

methamphetamine found in the residence was within the scope of his agreement

was plausible in light of the record as a whole and, therefore, not clearly

erroneous. See United States v. Smith, 13 F.3d 860, 865 (5th Cir. 1994).

Even if the scope of criminal activity Ice agreed to undertake was more

limited, the district court was permitted to approximate the amount of

methamphetamine attributable to Ice. See United States v. Puig-Infante, 19

F.3d 929, 942 (5th Cir. 1994). Ice provides no argument or basis for determining

the portion of the methamphetamine found in the residence that would have

been given to him for distribution. Thus, he has failed to show that it was
No. 11-50544

c/w No. 11-50560

3

clearly erroneous for the district court to conclude that all the

methamphetamine found in the residence was within the scope of his agreement.

The judgment of the district court is AFFIRMED.