United States v. Mack Cooper , 548 F. App'x 114 ( 2013 )


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  •      Case: 11-41004      Document: 00512455117         Page: 1    Date Filed: 11/27/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 11-41004                            FILED
    November 27, 2013
    Lyle W. Cayce
    UNITED STATES OF AMERICA                                                      Clerk
    Plaintiff-Appellee
    v.
    MACK COOPER
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 9:11-CV-105
    Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Pursuant to our grant of a certificate of appealability, Mack Cooper,
    federal prisoner # 06301-078, appeals the district court’s denial of his
    28 U.S.C. § 2255 motion to vacate, set aside, or correct the sentence on his
    claim that there was not a sufficient factual basis to support his plea. For the
    following reasons, we AFFIRM the district court’s judgment.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 11-41004     Document: 00512455117     Page: 2    Date Filed: 11/27/2013
    No. 11-41004
    Cooper was indicted and proceeded to trial on two counts of possession
    with intent to distribute and distribution of more than five grams of crack
    cocaine. Before the jury reached a verdict, Cooper waived his right to be
    charged by indictment and agreed to plead guilty to a one-count information
    charging him with maintaining a place for the purpose of distributing more
    than five grams of crack cocaine, in violation of 21 U.S.C. § 856(a)(1) (“drug
    house charge”). He was sentenced to 130 months imprisonment.
    Cooper attempted to appeal, but the Government moved to enforce the
    waiver of appeal provision of his plea agreement. This court granted the
    motion and dismissed Cooper’s appeal. Cooper did not petition for a writ of
    certiorari.
    Cooper then moved for relief under 28 U.S.C. § 2255, contending, inter
    alia, that there was no factual basis to support his guilty plea. The district
    court denied the motion without explicitly addressing the factual basis
    argument. At the plea hearing, the district court relied on Cooper’s trial
    testimony and DVD evidence in the record to establish a factual basis for the
    plea, but the district court did not order the trial transcribed.
    This court granted Cooper a certificate of appealability (“COA”) on the
    issue whether there was a sufficient factual basis to support his plea. In the
    COA order, this court explained that the trial testimony was not transcribed
    and that it was not clear from the record whether Cooper’s conduct satisfied
    the statutory requirement of maintaining the residence in question for the
    purpose of dealing in crack cocaine. Subsequently, the Government ordered
    and filed a transcript in the district court. This court treated the Government’s
    motion as one to supplement the record on appeal. Thus, in determining
    whether there was a sufficient factual basis to support Cooper’s plea, we have
    independently evaluated the record in light of the district court’s subsidiary
    findings.
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    No. 11-41004
    The Government’s brief advises plain error review of the issue whether
    there is any factual basis for Cooper’s guilty plea under 21 U.S.C. § 856(a)(1),
    i.e. for his “intentionally and knowingly” “maintaining” a place “for the
    purpose” of distributing a controlled substance. 21 U.S.C. § 856(a)(1); see, e.g.,
    United States v. Roberts, 
    913 F.2d 211
    , 219 (5th Cir. 1990). Cooper’s brief
    treats this issue as if it were raised on direct appeal, where findings of fact are
    reviewed for clear error and legal conclusions de novo. Both parties are wrong.
    In considering this Section 2255 habeas petition, which raises an issue Cooper
    did not preserve at the plea hearing or on direct appeal, considerations of
    finality are particularly pressing. As the Supreme Court holds, “[h]abeas
    review is an extraordinary remedy and ‘will not be allowed to do service for an
    appeal.’” United States v. Bousley, 
    523 U.S. 614
    , 622, 
    118 S. Ct. 1604
    , 1610
    (1998) (internal citations omitted). Consequently, “[w]here a defendant has
    procedurally defaulted a claim by failing to raise it on direct review, the claim
    may be raised in habeas only if the defendant can first demonstrate either
    ‘cause’ and actual ‘prejudice,’ . . . or that he is ‘actually innocent.’” 
    Id. at 622,
    citing, inter alia, Murray v. Carrier, 
    477 U.S. 478
    , 485, 
    106 S. Ct. 2639
    , 2643
    (1986) See also United States v. Sorrells, 
    145 F.3d 744
    , 749 (5th Cir. 1998).
    We apply the Bousley standard in this appeal. Cooper has not attempted
    to show “cause” for his failure to raise the sufficiency of the factual basis on
    direct appeal (and we pretermit whether that issue was waived by the waiver
    of appellate rights). He must therefore attempt to show that he was “actually
    innocent” of the crime, which would mean that there was no basis for the trial
    court’s finding at the guilty plea hearing that he violated § 856(a)(1). Given
    the benefit of the trial transcript and the videos of the drug deals in which
    Cooper participated, we reject this contention. The information alleged that
    Cooper “[o]n or about September 4, 2007, . . . knowingly and intentionally
    maintained a place at 806 Hosea Dolphus, Lufkin, Texas, for the purpose of
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    Case: 11-41004    Document: 00512455117     Page: 4   Date Filed: 11/27/2013
    No. 11-41004
    distributing more than five grams of cocaine base.” To sustain a conviction
    under § 856(a)(1), the Government must prove that the defendant
    (1) intentionally and knowingly (2) opened, leased, rented, used or maintained
    a place (3) for the purpose of using, manufacturing, or distributing a controlled
    substance. See United States v. 
    Roberts, supra
    .
    The record shows that Cooper maintained 806 Hosea Dolphus, the house
    identified by the Government as a “drug house.” “Where the evidence shows
    that over a period of time the defendant can direct the activities of and the
    people in a place, the jury may infer that he is involved in maintaining the
    place.”   United States v. Morgan, 
    117 F.3d 849
    , 858 (5th Cir. 1997).
    Supervisory control over the premises may satisfy the maintenance element of
    the statute. United States v. Soto-Silva, 
    129 F.3d 340
    , 346 (5th Cir. 1997). The
    testimony at trial indicated that a confidential informant (“CI”) informed the
    authorities that he could perform drug deals with Cooper that would be
    completed at 806 Hosea Dolphus. Police surveillance videos showed, on one
    occasion, Cooper sitting on the porch at 806 Hosea Dolphus, walking into the
    residence with cash, coming out of the residence and speaking with the CI who
    left shortly thereafter.   On another occasion, surveillance videos showed
    Cooper walking up to the CI’s car outside the house, the two men discussing a
    drug transaction, the CI handing money to Cooper, and indicated Cooper was
    holding crack cocaine.     On each occasion, the CI returned to the law
    enforcement rendezvous point with crack cocaine and had none beforehand.
    The trial record strongly suggests Cooper lived at the house, or at least that it
    was his place for drug dealing. These facts support a finding that Cooper
    exercised sufficient dominion and control to have maintained the house within
    the scope of § 856(a)(1). See 
    Soto-Silva, 129 F.3d at 346
    ; 
    Morgan, 117 F.3d at 856-57
    .
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    The record also shows that Cooper used 806 Hosea Dolphus for the
    purpose of distributing crack cocaine.      To support a conviction under
    § 856(a)(1), the purpose to distribute drugs must be the defendant’s; it is not
    enough that the defendant maintains the premises so that others may engage
    in distribution. 
    Soto-Silva, 129 F.3d at 346
    . As noted, the surveillance videos
    indicated that Cooper handed crack cocaine to the CI in exchange for cash at
    806 Hosea Dolphus. Cooper therefore shared the purpose of selling crack
    cocaine at 806 Hosea Dolphus.
    Accordingly, there was a factual basis to support Cooper’s plea, and he
    has not shown that he was “actually innocent” of the crime.
    The judgment denying Cooper’s § 2255 motion is AFFIRMED.
    5