* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

February 25, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30711

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

KENDALL PHILLIPS,

DefendantAppellant.

----------------------------------------------------------- Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 02-CR-279-ALL-S

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

Before SMITH, DeMOSS and STEWART, Circuit Judges.

PER CURIAM: *

Kendall Phillips pleaded guilty to one charge of distribution of less than five grams of crack

cocaine and one charge of distribution of more than five but less than 50 grams of crack cocaine. The

district court s ent enced him to 78 months in prison and a four-year term of supervised release.

Phillips now appeals the judgment of the district court. He argues that the di stri ct court erred i n

basing his sentence in part upon crack cocaine that was found inside of the apartment where he was-2-

arrested. He contends that the district court failed to make findings concerning the scope of the

criminal venture that he allegedly entered. He further argues that the record does not suppo rt a

finding that he entered into a criminal venture that included the crack cocaine that agents found in the

apartment.

This court reviews a district court’s interpretation of the guidelines de novo and its factual

findings for clear error. See United States v. Sharpe

, 193 F.3d 852, 873 (5th Cir. 1999). When a

sentencing court is considering liabilit y for relevant conduct vis-a-vis a joint criminal venture, “the

court must first determine the scope of the criminal activity the particular defendant agreed to jointly

undertake.” U.S.S.G. § 1B1.3 comment. (n.2).

Phillips’ argument to t his co urt has merit. Phillips is correct insofar as he argues that the

district court did not make specific findings concerning the scope of any criminal venture he may have

joined. Moreover, the record does not support a conclusion that Phillips agreed to take part in any

joint criminal venture. A fortiorai , the record likewise does not support a conclusion that Phillips

agr eed t o a joint venture involving the crack cocaine that was found in the apartment. The

indictment, the factual basis offered in support of the plea, and the presentence report simply do not

show that Phillips entered into any criminal venture with others. Rather, these documents show only

that Phillips conducted two transactions with a confidential informant.

The record does refl ect t hat there are several other criminal cases that are related to the

instant case. The record does not, however, provide details as to these cases. It is thus impossible

to determine what, if any, relationship those cases and the defendants concerned therein have to the

instant case and Phillips. Consequently, the record does not support the district court’s conclusion

that Phillips entered into a joint criminal venture that encompassed the crack cocaine that a gents-3-

found at his apartment when he was arrested. The record thus does not support the district court’s

decisions to hold Phillips liable for this crack cocaine and to use t his crack cocaine in calculating

Phillips’ sentence. Accordingly, Phillips’ sentence is VACATED, and this case is REMANDED to

the district court for resentencing.