IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40616 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMMETT RAY DONIHOO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas (4:01-CR-44-20) - - - - - - - - - - November 21, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Emmett Ray Donihoo appeals the district

court’s application of U.S.S.G. § 2D1.1(b)(1) to increase his

offense level for possession of a weapon during and in connection

with the drug conspiracy for which he was convicted. He argues

that possession of a firearm by George Ruff, a coconspirator, was

not foreseeable to him, thus application of § 2D1.1(b)(1) was

error.

*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. At sentencing, Sergeant Investigator Donald Fleming of the

Texas Department of Public Safety Narcotics testified that during

surveillance of the methamphetamine “cook” site, he observed Ruff

walking around carrying a sawed-off shotgun in close proximity to

Donihoo and the other participants in the cook. It can fairly be

inferred from Donihoo’s proximity to Ruff while Ruff carried the

sawed-off shotgun that Donihoo was aware of the existence of the

shotgun as well as its use during the cook, i.e., in connection

with the conspiracy. Also, Donihoo’s admission to the probation

officer that he believed Ruff was a “rough type” who had guns made

Ruff’s carrying of a weapon during the “cook” foreseeable, as did

the nature of the activity of “cooking” methamphetamine. See

United States v. Martinez,

(5th Cir. 1987).

The court’s finding that Donihoo’s subsequent retraction of his

admission was not credible was not clearly erroneous in light of

the other evidence presented at sentencing and in the presentence

report. See United States v. Garza,

(5th Cir.

1997).

The district court did not clearly err in applying

§ 2D1.1(b)(1) to increase Donihoo’s sentence. See id.

AFFIRMED. H:\OPINIONS\02-\02-40616 scr.wpd 4/29/04 10:14 am