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U.S. v. McCoy

United States Court of Appeals, Fifth Circuit
Jan 14, 2008
261 F. App'x 737 (5th Cir. 2008)

Opinion

No. 06-20817 Summary Calendar.

January 14, 2008.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:06-CR-66-1.

Before KING, DAVIS, and CLEMENT, Circuit Judges.


Sonya Yvette McCoy appeals the sentence imposed following her guilty plea to being a felon in possession of a firearm and moves to supplement the record with state court documents concerning her prior Texas convictions for delivery of a controlled substance. She argues that the district court plainly erred in determining that she had two prior Texas convictions that qualified as "controlled substance offenses" for purposes of a U.S.S.G. § 2K2.1(a)(2) base offense level enhancement.

According to the appellate record, McCoy was convicted in 2003 for possession with intent to deliver cocaine pursuant to TEX. HEALTH SAFETY CODE ANN. § 481.112(a). This conviction qualifies as a "controlled substance offense" under § 2K2.1. See United States v. Ford, 509 F.3d 714, 714-15 (5th Cir. 2007). The record additionally discloses that in 2000 McCoy was charged by bill of information with delivery of a controlled substance, also a violation of § 481.112(a), with the judgment reflecting that she pleaded guilty to delivery by actual transfer. The judgment therefore confirms that her conviction was for activity that constituted a controlled substance offense under § 2K2.1(a)(2). Cf. United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.) (holding that inspection of indictment and jury instructions confirmed that the defendant's § 481.112(a) conviction may have been for activity that did not constitute a "drug trafficking offense," i.e., activity constituting an offer to sell), cert. denied, ___ U.S. ___, 127 S.Ct. 3031, 168 L.Ed.2d 748 (2007); United States v. Morales-Martinez, 496 F.3d 356, 360-61 (5th Cir.) (holding that an undifferentiated guilty plea to an indictment charging the § 481.112(a) offense in the conjunctive did not necessitate a finding that the defendant committed a "drug trafficking offense" because it was unclear whether the defendant pleaded guilty to transfer of cocaine or the offer to sell cocaine), cert. denied, ___ U.S. ___, 128 S.Ct. 410, 169 L.Ed.2d 287 (2007). As such, McCoy has not demonstrated plain error on the part of the district court in calculating her base offense level pursuant to § 2K2.1(a)(2). See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

AFFIRMED; MOTION TO SUPPLEMENT THE RECORD AND LEAVE TO SUPPLEMENT RECORD EXCERPTS GRANTED.


Summaries of

U.S. v. McCoy

United States Court of Appeals, Fifth Circuit
Jan 14, 2008
261 F. App'x 737 (5th Cir. 2008)
Case details for

U.S. v. McCoy

Case Details

Full title:United States of America, Plaintiff-Appellee Sonya Yvette McCOY…

Court:United States Court of Appeals, Fifth Circuit

Date published: Jan 14, 2008

Citations

261 F. App'x 737 (5th Cir. 2008)