USA v. Michael Amacker

Filing

UNPUBLISHED OPINION FILED. [12-30304 Affirmed ] Judge: EGJ , Judge: FPB , Judge: JLD Mandate pull date is 03/13/2013 for Appellant Michael Amacker [12-30304]

Case: 12-30304

Document: 00512149629

Page: 1

Date Filed: 02/20/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-30304
Summary Calendar

February 20, 2013
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL AMACKER,
Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CR-133-1

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Michael Amacker appeals his guilty-plea convictions for possession with
the intent to distribute marijuana and possession of a firearm in furtherance of
a drug-trafficking crime. Amacker argues that the district court plainly erred
in accepting his guilty plea because the factual basis was insufficient to support
his conviction for possession with the intent to distribute marijuana.
Specifically, Amacker contends that the factual basis did not include any
evidence from which one could infer the element of intent to distribute because
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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No. 12-30304
the amount of marijuana was “relatively small” and was not packaged into
smaller quantities. Based on the assertion that his conviction for possession
with the intent to distribute marijuana should be vacated, Amacker argues that
the conviction for possession of a firearm during a drug-trafficking crime should
also be vacated. Amacker does not challenge his conviction for possession of a
firearm by a felon.
Because Amacker failed to challenge his convictions on this ground in the
district court, our review is limited to plain error. See United States v. Palmer,
456 F.3d 484, 489 (5th Cir. 2006). To establish plain error, Amacker must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Puckett, 556 U.S.
at 135. ?Plain” error is error so clear or obvious that ?the trial judge and
prosecutor were derelict in countenancing it, even absent the defendant's timely
assistance in detecting it.” United States v. Delgado, 672 F.3d 320, 330 (5th Cir.)
(en banc) (internal quotation marks and citations omitted), cert. denied, 133 S.
Ct. 525 (2012).
A district court cannot enter a judgment of conviction based upon a guilty
plea unless it is satisfied that there is a factual basis for the plea. FED. R. CRIM.
P. 11(b)(3). The district court is required “to determine that the factual conduct
to which the defendant admits is sufficient as a matter of law to constitute a
violation of the statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir.
2001) (en banc). “[I]nferences may be ‘fairly drawn’ from the evidence adduced
after the acceptance of a guilty plea but before or at sentencing.” United States
v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008).
Amacker was in possession of a backpack containing six ounces or 170
grams of high grade marijuana. There was no testimony or any other indication
as to whether this amount is consistent with personal use or distribution. In
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No. 12-30304
Amacker’s vehicle, officers found a handgun, twelve rounds of ammunition, a
ledger, and $14,000 in cash.

An additional $1000 in cash was found on

Amacker’s person. Although the drug quantity was arguably not large, given the
presence of a firearm, ammunition, ledger, and large amounts of cash, the
factual basis was sufficient to show an intent to distribute. See United States v.
Cain, 440 F.3d 672, 673 (5th Cir. 2006). In light of these facts, any error was not
so clear or obvious that “the trial judge and prosecutor were derelict in
countenancing it.” Delgado, 672 F.3d at 330 (internal quotation marks and
citations omitted). Therefore, the district court did not plainly err in accepting
his guilty plea. See Marek, 238 F.3d at 314. Because Amacker’s challenge to his
conviction on count one fails, his argument regarding count three likewise fails.
Accordingly, the judgment of the district court is AFFIRMED.

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