USA v. John Lee

Filing

UNPUBLISHED OPINION FILED. [14-10784 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 05/11/2015 for Appellant John Anthony Lee [14-10784]

Case: 14-10784

Document: 00513010825

Page: 1

Date Filed: 04/20/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10784
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 20, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN ANTHONY LEE,

Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-139-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
John Anthony Lee appeals his guilty plea convictions and sentences for
being a felon in possession of a firearm and for conspiracy to obstruct justice
through evidence concealment. Lee first argues that there was no factual basis
for his guilty plea on the conspiracy count because he lacked the intent to
destroy the evidence so it could not be used in an “official proceeding,” where
that term is defined under the statute as a federal proceeding. Lee then argues

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10784

Document: 00513010825

Page: 2

Date Filed: 04/20/2015

No. 14-10784
that the district court should have found that the Texas offense of delivery of
a controlled substance, TEX. HEALTH & SAFETY CODE ANN. § 481.112, is no
longer divisible in light of Descamps v. United States, 133 S. Ct. 2276 (2013).
As Lee concedes he did not raise either objection in the district court, our
review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
As to Lee’s first argument, the factual basis he agreed to at his plea
hearing alleged facts that satisfied the statutory requirements, including that
Lee conspired with others to destroy videotape evidence in order to make it
unavailable in his federal proceeding. See 18 U.S.C. § 1512(c)(1). As Lee
acknowledges, the factual basis was sufficient on its face.

Although he

contends that subsequent information casts doubt on whether he could have
foreseen the federal proceeding, given the record as a whole, including his
sworn statement under oath, any error there may have been was not clear or
obvious. See United States v. Alvardo-Casas, 715 F.3d 945, 952 (5th Cir. 2013).
Further, Lee does not argue that his substantial rights were affected or that
this court should exercise its discretion to correct the error because the error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings. See Puckett, 556 U.S. at 135. Thus, he has effectively abandoned
any such arguments. See United States v. Williams, 620 F.3d 483, 496 (5th
Cir. 2010); United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).
We have previously rejected Lee’s contention that the Texas drug statute
is not divisible in light of Descamps. See United States v. Teran-Salas, 767
F.3d 453, 459 (5th Cir. 2014), petition for cert. filed (Dec. 15, 2014) (No. 147593). Lee cites no case to the contrary and has not demonstrated error, plain
or otherwise. See Puckett, 556 U.S. at 135.
AFFIRMED.

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