USA v. Derek Powell


UNPUBLISHED OPINION FILED. [09-20848 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/14/2010 for Appellant Derek Todd Powell [09-20848]

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USA v. Derek Powell ase: 09-20848 C Document: 00511302090 Page: 1 Date Filed: 11/23/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-20848 S u m m a r y Calendar November 23, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. D E R E K TODD POWELL, D e fe n d a n t -A p p e lla n t A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:08-CR-501-1 B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* D e r e k Todd Powell appeals the sentence imposed following his guilty plea c o n v ic t io n of count one, possession with intent to distribute five or more grams o f a mixture or substance containing a detectable amount of cocaine base, in v io la t io n of 21 U.S.C. 841(a)(1), (b)(1)(B)(iii), count two, possession of a firearm d u r in g a drug trafficking offense, in violation of 18 U.S.C. 924(c)(1)(A), and c o u n t three, felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) a n d 924(a)(2). The district court imposed a total term of 200 months of 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20848 Document: 00511302090 Page: 2 Date Filed: 11/23/2010 No. 09-20848 im p r is o n m e n t , consisting of 140 months of imprisonment on count one, 60 m o n th s of imprisonment on count two, and 60 months of imprisonment on count th ree. The terms of imprisonment on counts one and three were to run c o n c u r r e n t ly , while the term of imprisonment on count two was to run c o n s e c u tiv e ly . P o w e ll argues that the district court erred by sentencing him as a career o ffe n d e r . He also contends that the district court erred by failing to state the a p p lic a b le guidelines range and the specific reason for imposing the 200-month s e n te n c e , which was below the advisory guidelines range of 262-327 months of im p r is o n m e n t . In addition to these arguments, Powell, who is represented by c o u n s e l, has provided conclusional assertions regarding disparity in the G u id e lin e s , the drug quantity determination, and his criminal history score. These difficult-to-decipher assertions are inadequately briefed, as Powell has fa ile d to clearly identify a theory with regard to these issues as a proposed basis fo r deciding the case. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th C ir . 2010), cert. denied, 2010 WL 2287006 (U.S. Oct. 4, 2010). Issues regarding d is p a r it y in the Guidelines, the drug quantity determination, and Powell's c r im in a l history score are therefore waived. See id. R e g a r d in g Powell's challenge to the career offender enhancement, to the e x t e n t that Powell is presenting arguments to this court that differ from the a r g u m e n t that he presented to the district court, plain error review governs this is s u e . See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); United S ta te s v. Green, 324 F.3d 375, 381 (5th Cir. 2003). Nonetheless, it is not n e c e s s a r y for this court to determine whether the plain error standard of review is applicable, as Powell's argument fails to demonstrate error in the district c o u r t 's decision under the de novo standard of review. See United States v. G u tie r r e z -R a m ir e z , 405 F.3d 352, 355-56 (5th Cir. 2005). P o s t -U n ite d States v. Booker, 543 U.S. 220 (2005), although the Guidelines a r e advisory, the district court must still properly calculate the guidelines range 2 Case: 09-20848 Document: 00511302090 Page: 3 Date Filed: 11/23/2010 No. 09-20848 o f imprisonment. Gall v. United States, 552 U.S. 38, 52-53 (2007); United States v . Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The career offender e n h a n c e m e n t pursuant to U.S.S.G. 4B1.1(a) applies if, inter alia, the defendant h a s at least two prior felony convictions for either a crime of violence or a c o n t r o lle d substance offense. A controlled substance offense within the meaning o f 4B1.1(a)(3) is an offense that, inter alia, prohibits the manufacture, import, e x p o r t , distribution, or dispensing of a controlled substance. 4B1.2(b). A prior c o n t r o lle d substance offense qualifies as one of the two predicate "prior felony c o n v ic t io n s " under 4B1.1(a)(3) if the offense was "punishable by death or im p r is o n m e n t for a term exceeding one year, regardless of whether such offense [w a s ] specifically designated as a felony and regardless of the actual sentence im p o s e d ." 4B1.2, comment. (n.1). P o w e ll submitted a Texas state criminal complaint and judgment of c o n v ic t io n that establish that in 2006 he was convicted in Texas state court of d e liv e r y of less that one gram of cocaine by constructive transfer, an offense that w a s a state jail felony that was punishable for a term that exceeded one year. TEX. HEALTH & SAFETY CODE ANN. 481.112(a); TEX. PENAL CODE ANN. 12.35(a). Although the state sentencing court exercised discretion and sentenced Powell a t the misdemeanor level pursuant to TEX. PENAL CODE ANN 12.44(a) and TEX. P ENAL CODE ANN. 12.21(2), Powell's offense is nonetheless considered a prior fe lo n y conviction for purposes of 4B1.1(a). See 4B1.2, comment. (n.1); United S ta te s v. Harrimon, 568 F.3d 531, 534 n.3 (5th Cir.), cert. denied, 130 S. Ct. 1015 (2 0 0 9 ); United States v. Rivera-Perez, 322 F.3d 350, 351-52 (5th Cir. 2003). Also, P o w e ll pleaded guilty to, and was convicted of, delivery of cocaine by constructive t r a n s fe r . See United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007). "The a c t u a l or constructive transfer of a controlled substance is rationally understood t o be distribution, which is specifically included in the definition of a controlled s u b s t a n c e offense set forth in 4B1.2." United States v. Roberts, 255 F. App'x 8 4 9 , 851 (5th Cir. 2007). For the foregoing reasons, the district court did not err 3 Case: 09-20848 Document: 00511302090 Page: 4 Date Filed: 11/23/2010 No. 09-20848 w h e n it applied the career offender enhancement in its calculation of Powell's o ffe n s e level. R e g a r d in g Powell's assertion that the district court did not comply with 18 U .S .C . 3553(c)(2) when it failed to state at sentencing the applicable guidelines r a n g e and the specific reason for imposing the 200-month sentence, as Powell did n o t make this argument in the district court, plain error review governs this is s u e . Peltier, 505 F.3d at 391-92. However, to the extent that Powell is c h a lle n g in g the lack of reasons in the written judgment, Powell did not have an o p p o r t u n it y to object to the written judgment. The abuse of discretion standard is therefore applicable to Powell's challenge to the written judgment. See United S ta te s v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). T h e sentencing hearing transcript, written judgment, and statement of r e a s o n s , together provide details of the district court's rulings on Powell's o b je c t io n s to the presentence report, its adoption of the presentence report, its d e t e r m in a t io n that the Guidelines resulted in an advisory range of 262 to 327 m o n th s of imprisonment, and its rationale for imposing a 200-month, n o n g u id e lin e s sentence. The district court sufficiently complied with 3553(c)(2), see United States v. Gonzalez, 445 F.3d 815, 819-20 (5th Cir. 2006), a n d Powell's conclusional assertions regarding this issue do not demonstrate o th e rw is e . F o r the foregoing reasons, the judgment of the district court is A F F IR M E D . 4

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