IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10887

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD RAY JOHNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:19-CR-15-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Donald Ray Johnson appeals the 105-month sentence imposed following 

his guilty plea to possession of cocaine base with intent to distribute. When 

calculating his base offense level, the district court held Johnson responsible

for all of the currency found in the residence from which he sold cocaine base 

on the grounds of relevant conduct under U.S.S.G. § 1B1.3. Johnson argues 

that the district court failed to make legally sufficient factual findings to 

* 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 14, 2020

Lyle W. Cayce

Clerk

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No. 19-10887

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support its relevant conduct determination. Our review is de novo. See United 

States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).

In calculating a defendant’s base offense level, the district court may 

consider drug quantities not specified in the count of conviction if they are part 

of the defendant’s “relevant conduct,” as defined by § 1B1.3. United States v. 

Wall, 180 F.3d 641, 644-45 (5th Cir. 1999). A defendant is accountable for all 

drug quantities with which he was directly involved. § 1B1.3(a)(1)(A) 

& comment. (n.3(D)). In cases of “jointly undertaken criminal activity,” 

relevant conduct may expand beyond the offense of conviction to include all 

drug quantities involved in transactions carried out by third-party 

participants. See § 1B1.3(a)(1)(B), comment. (n.3(D)); United States v. 

Evbuomwan, 992 F.2d 70, 72 (5th Cir. 1993).

To hold Johnson indirectly accountable under § 1B1.3 for third-party 

drug sales, the district court was required to find the following: (1) Johnson

agreed to participate jointly in drug sales with a third party, (2) the drug sales 

at issue were within the scope of that joint activity, and (3) Johnson could have 

reasonably foreseen the quantity of drugs represented by those sales in 

connection with the joint undertaking. See § 1B1.3(a)(1)(B), comment. (n.3(B)-

(D)); United States v. Smith, 13 F.3d 860, 864-65 (5th Cir. 1994). The district 

court did not make an express finding whether Johnson was directly or 

indirectly responsible for the disputed currency. Additionally, the district 

court’s rationale for its relevant conduct determination is not implicit in its 

adoption of the Addendum to the Presentence Report, which made none of the 

factual findings required to hold Johnson accountable for jointly undertaken 

criminal activity. See Smith, 13 F.3d at 864-65; Evbuomwan, 992 F.2d at 74. 

Because the district court’s reasoning is not apparent from the record, we 

cannot speculate as to the rationale for its relevant conduct determination. See 

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Zapata-Lara, 615 F.3d at 391; United States v. Hooten, 942 F.2d 878, 882 

(5th Cir. 1991).

We therefore VACATE the sentence and REMAND for the district court

to determine the amount of currency for which Johnson was directly or 

indirectly responsible under § 1B1.3 and to provide the factual findings 

required to support its decision. See FED. R. CRIM. P. 32(i)(3)(B); 

§ 1B1.3(a)(1)(A), (B) & comment. (n.3); Zapata-Lara, 615 F.3d at 391. 

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