USA v. Powell

Filing 920100528

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Case: 08-10499 Document: 00511125457 Page: 1 Date Filed: 05/28/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-10499 Summary Calendar May 28, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff Appellee v. OWEN DONOVAN POWELL, Defendant Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:07-CR-56-ALL Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Owen Donovan Powell presents arguments that he concedes are foreclosed by United States v. Ford, 509 F.3d 714, 716-18 (5th Cir. 2007). In Ford, this court held that the Texas offense of possession of a controlled substance with intent to deliver was indistinguishable from the offense of possession with intent to distribute, the latter of which is defined under U.S.S.G. 2K2.1 as a controlled substance offense. 509 F.3d at 716-17. This court held that the district court did not err 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * Case: 08-10499 Document: 00511125457 Page: 2 No. 08-10499 Date Filed: 05/28/2010 in enhancing Ford's sentence pursuant to Section 2K2.1(a) based on his prior conviction for possession with intent to deliver a controlled substance. Id. The definition of "drug trafficking offense" under Section 2L1.2(b)(1) is nearly identical to that of a "controlled substance offense" under Section 2K2.1. See id. at 717 n.2. Ford's holding applies equally to a Section 2L1.2 enhancement. See id. Powell's argument is foreclosed by Ford. Accordingly, the Government's motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government's alternative motion for an extension of time in which to file a brief is DENIED as unnecessary. 2

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