### 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, t he district court held Johnson responsible for all of the currency found in the residence from which he sold coca ine 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 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 July 14, 2020 Lyle W. Ca yce Clerk Case: 19-10887 Document: 00515489154 Page: 1 Date Filed: 07/14/2020No. 19

- 10887

2 support its relevant conduct determination

. Our review is de novo. See United States v. Zapa ta

- 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, 6 44

- 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 case s of “jointly undertaken criminal activity,” relevant conduct may expand beyond the offense of co nviction to include all drug quantities involved in transactions carried out by third

- part y 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 part y , (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 d id 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 determinatio n is not implicit in its adoption of the Addendum to the Presentence Report , which made no ne 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

. B ecause the district court’s r eason ing is not apparent from the record , w e cannot speculate as to the r ationale for its relevant conduct determination. See Case: 19-10887 Document: 00515489154 Page: 2 Date Filed: 07/14/2020No. 19

- 10887

3 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 F ED

. R. C R IM

. P . 32(i)(3)(B); § 1B1.3(a)(1)(A), (B) & comment. (n.3); Zapata

- Lara , 615 F.3d at 391. Case: 19-10887 Document: 00515489154 Page: 3 Date Filed: 07/14/2020