United States v. Love

United States Court of Appeals
for the Fifth Circuit

No. 19-11331
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Ethel Mae Love,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-164-1

Before Jones, Barksdale, and Stewart, Circuit Judges.
Per Curiam:*
Ethel Mae Love appeals her conviction and sentence for maintaining
a drug-involved premises, in violation of 21 U.S.C. § 856(a)(2), and
possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). For

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020

Lyle W. Cayce
Clerk
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No. 19-11331
2
her conviction, she challenges the sufficiency of the evidence; for her
sentence, she claims clear-error. Each issue fails.
Regarding her conviction for maintaining a drug-involved premises,
she claims: the evidence was insufficient to support her conviction of
maintaining a drug-involved premises; and the Government did not provide
evidence from which the jury could reasonably infer that she knew about the
marihuana recovered from the residence.
Where, as here, defendant preserves such claims by timely moving for
judgment of acquittal, our review is de novo. United States v. Lopez-Urbina,
434 F.3d 750, 757 (5th Cir. 2005). A preserved challenge to the sufficiency
of the evidence is reviewed to determine whether, “after viewing the
evidence and all reasonable inferences in the light most favorable to the
[Government], any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt”. United States v. Vargas-
Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). Although Love
contends most of the stored marihuana was hidden from view in a box and
tote bag located in a storage room, the evidence regarding the stored
marihuana, Love’s statement to police, and evidence of additional drugs and
drug paraphernalia scattered throughout the living room meet this standard.
In challenging her sentence, Love claims the district court committed
clear error in: finding Love and Bellah were involved in a jointly undertaken
criminal activity under Guideline § 1B1.3(a)(1)(B); and increasing Love’s
offense level by two under Guideline § 2K2.1(b)(4)(A) due to Bellah’s
possession of a stolen firearm in the course of that activity.
Although, post-Booker, the Sentencing Guidelines are advisory only,
the district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
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No. 19-11331
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38, 46, 51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Under the Guidelines applicable to unlawful firearms possession,
defendant’s offense level should be increased by two “[i]f any firearm . . . was
stolen”. U.S.S.G. § 2K2.1(b)(4)(A). Guideline § 1B1.3(a)(1)(B) defines a
“jointly undertaken criminal activity” as “a criminal plan, scheme,
endeavor, or enterprise undertaken by . . . defendant in concert with others,
whether or not charged as a conspiracy”. When involved in a jointly
undertaken criminal activity, defendant receives sentence enhancements
based on the conduct of others in that activity. Id. (stating sentences for
jointly undertaken criminal activities include “all acts and omissions of
others . . . that occurred during the commission of the offense of
conviction”).
The court sentenced Love to a within-Guidelines range of, inter alia,
48 months’ imprisonment for each count, to run concurrently. The
presentence investigation report, the trial (at which Love did not present
evidence), and Love’s interview with officers support finding that Love and
Bellah were involved in a jointly undertaken criminal activity. In that regard,
Love was found responsible for the firearm in Bellah’s possession at the time
of the search. Accordingly, the district court applied both the joint criminal
activity enhancement and the firearm-in-connection-with-another-felony-
offense enhancement.
AFFIRMED.
Case: 19-11331 Document: 00515667925 Page: 3 Date Filed: 12/09/2020