USA v. Jessica McCool
UNPUBLISHED OPINION FILED. [11-10717 Affirmed ] Judge: EHJ , Judge: ECP , Judge: JWE Mandate pull date is 05/21/2012 for Appellant Jessica Moore McCool [11-10717]
Date Filed: 04/30/2012
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 30, 2012
Lyle W. Cayce
UNITED STATES OF AMERICA,
JESSICA MOORE MCCOOL,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-21-2
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
Jessica Moore McCool pleaded guilty to possession with intent to
distribute methamphetamine. The district court sentenced McCool to 96 months
of imprisonment and a three-year term of supervised release. McCool filed a
timely notice of appeal.
Included in the drug quantity used to calculate McCool’s advisory
guidelines sentencing range was 226.8 grams of methamphetamine that McCool
delivered for a co-defendant. In the district court, McCool argued against the
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 04/30/2012
inclusion of this drug amount, contending that she was the first to give the
Government the information about this drug quantity and that it should
therefore be excluded under U.S.S.G. § 1B1.8. McCool asserted, however, that
her argument was foreclosed by this court’s decision in United States v. Gibson,
48 F.3d 876 (5th Cir. 1995), and the drug quantity was included by the district
In her opening brief, McCool asserts that the district court’s reliance on
Gibson in using the information regarding the 226.8 grams of methamphetamine
was error because the facts of her case are distinguishable from those presented
in Gibson. The Government contends that review should be only for manifest
injustice because McCool invited any error committed by the district court. In
reply, McCool argues emphatically that the district court committed no error in
overruling her objection in light of this court’s holding in Gibson. Instead, she
argues that the holding of Gibson has been expanded to cover factual scenarios
not presented in Gibson, and she invites this court to reconsider, interpret, and
revise the Gibson decision.
One panel of this court may not overrule the decision of a prior panel in
the absence of en banc consideration or a superseding Supreme Court decision.
United States v. Jasso, 587 F.3d 706, 709 n.3 (5th Cir. 2009). In light of McCool’s
position that the district court committed no error here, the sentence imposed
by the district court is AFFIRMED.
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