United States v. Derek Powell , 402 F. App'x 930 ( 2010 )

Case: 09-20848 Document: 00511302090 Page: 1 Date Filed: 11/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 23, 2010
No. 09-20848
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEREK TODD POWELL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CR-501-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Derek Todd Powell appeals the sentence imposed following his guilty plea
conviction of count one, possession with intent to distribute five or more grams
of a mixture or substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), count two, possession of a firearm
during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A), and
count three, felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
and § 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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No. 09-20848
imprisonment, consisting of 140 months of imprisonment on count one, 60
months of imprisonment on count two, and 60 months of imprisonment on count
three. The terms of imprisonment on counts one and three were to run
concurrently, while the term of imprisonment on count two was to run
consecutively.
Powell argues that the district court erred by sentencing him as a career
offender. He also contends that the district court erred by failing to state the
applicable guidelines range and the specific reason for imposing the 200-month
sentence, which was below the advisory guidelines range of 262-327 months of
imprisonment. In addition to these arguments, Powell, who is represented by
counsel, has provided conclusional assertions regarding disparity in the
Guidelines, the drug quantity determination, and his criminal history score.
These difficult-to-decipher assertions are inadequately briefed, as Powell has
failed to clearly identify a theory with regard to these issues as a proposed basis
for deciding the case. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th
Cir. 2010), cert. denied, 2010 WL 2287006 (U.S. Oct. 4, 2010). Issues regarding
disparity in the Guidelines, the drug quantity determination, and Powell’s
criminal history score are therefore waived. See id.Regarding Powell’s challenge to the career offender enhancement, to the
extent that Powell is presenting arguments to this court that differ from the
argument that he presented to the district court, plain error review governs this
issue. See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); United
States v. Green, 324 F.3d 375, 381 (5th Cir. 2003). Nonetheless, it is not
necessary 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
court’s decision under the de novo standard of review. See United States v.
Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005).
Post-United States v. Booker, 543 U.S. 220 (2005), although the Guidelines
are advisory, the district court must still properly calculate the guidelines range
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No. 09-20848
of 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
enhancement pursuant to U.S.S.G. § 4B1.1(a) applies if, inter alia, the defendant
has at least two prior felony convictions for either a crime of violence or a
controlled substance offense. A controlled substance offense within the meaning
of § 4B1.1(a)(3) is an offense that, inter alia, prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance. § 4B1.2(b). A prior
controlled substance offense qualifies as one of the two predicate “prior felony
convictions” under § 4B1.1(a)(3) if the offense was “punishable by death or
imprisonment for a term exceeding one year, regardless of whether such offense
[was] specifically designated as a felony and regardless of the actual sentence
imposed.” § 4B1.2, comment. (n.1).
Powell submitted a Texas state criminal complaint and judgment of
conviction that establish that in 2006 he was convicted in Texas state court of
delivery of less that one gram of cocaine by constructive transfer, an offense that
was a state jail felony that was punishable for a term that exceeded one year.
T EX. H EALTH & S AFETY C ODE A NN. 481.112(a); T EX. P ENAL C ODE A NN. § 12.35(a).
Although the state sentencing court exercised discretion and sentenced Powell
at the misdemeanor level pursuant to T EX. P ENAL C ODE A NN § 12.44(a) and T EX.
P ENAL C ODE A NN. § 12.21(2), Powell’s offense is nonetheless considered a prior
felony conviction for purposes of § 4B1.1(a). See § 4B1.2, comment. (n.1); United
States v. Harrimon, 568 F.3d 531, 534 n.3 (5th Cir.), cert. denied, 130 S. Ct. 1015(2009); United States v. Rivera-Perez, 322 F.3d 350, 351-52 (5th Cir. 2003). Also,
Powell pleaded guilty to, and was convicted of, delivery of cocaine by constructive
transfer. See United States v. Gonzales, 484 F.3d 712, 714 (5th Cir. 2007). “The
actual or constructive transfer of a controlled substance is rationally understood
to be distribution, which is specifically included in the definition of a controlled
substance offense set forth in § 4B1.2.” United States v. Roberts, 255 F. App’x
849, 851 (5th Cir. 2007). For the foregoing reasons, the district court did not err
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when it applied the career offender enhancement in its calculation of Powell’s
offense level.
Regarding 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
range and the specific reason for imposing the 200-month sentence, as Powell did
not make this argument in the district court, plain error review governs this
issue. Peltier, 505 F.3d at 391-92. However, to the extent that Powell is
challenging the lack of reasons in the written judgment, Powell did not have an
opportunity to object to the written judgment. The abuse of discretion standard
is therefore applicable to Powell’s challenge to the written judgment. See United
States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002).
The sentencing hearing transcript, written judgment, and statement of
reasons, together provide details of the district court’s rulings on Powell’s
objections to the presentence report, its adoption of the presentence report, its
determination that the Guidelines resulted in an advisory range of 262 to 327
months of imprisonment, and its rationale for imposing a 200-month,
nonguidelines sentence. The district court sufficiently complied with
§ 3553(c)(2), see United States v. Gonzalez, 445 F.3d 815, 819-20 (5th Cir. 2006),
and Powell’s conclusional assertions regarding this issue do not demonstrate
otherwise.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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