United States v. Keontrey Jackson ( 2014 )

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     Case: 12-51253      Document: 00512452853         Page: 1    Date Filed: 11/25/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-51253                         November 25, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KEONTREY JACKSON, also known as K.C.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:12-CR-189-3
Before REAVLEY, JONES, and ELROD, Circuit Judges.
PER CURIAM: *
Keontrey Jackson was convicted by a jury on all three counts of an
indictment charging him with conspiracy to possess with intent to distribute
and conspiracy to distribute 280 grams or more of cocaine base, aiding and
abetting the possession with the intent to distribute 28 grams or more of
cocaine base, and aiding and abetting the distribution of 28 grams or more of
cocaine base. The jury found that the conspiracy involved at least 28 grams 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 12-51253    Document: 00512452853     Page: 2   Date Filed: 11/25/2013
No. 12-51253
cocaine base but specifically rejected an amount of at least 280 grams. The
district court sentenced Jackson to 169 months in prison on each count, with
the terms to run concurrently.
On appeal, Jackson challenges the sufficiency of the evidence
establishing his guilt on all three counts of conviction. “When reviewing the
sufficiency of the evidence, this Court views all evidence, whether
circumstantial or direct, in the light most favorable to the Government with
all reasonable inferences to be made in support of the jury’s verdict.” United
States v. Terrell,

700 F.3d 755

, 760 (5th Cir. 2012) (internal quotation marks
and citation omitted). Contrary to his assertion, the Government presented
evidence to support the jury’s finding that he conspired to possess with intent
to distribute and conspired to distribute 28 grams or more of cocaine base. See
United States v. Booker,

334 F.3d 406

, 409 (5th Cir. 2003); United States v.
DeLeon,

247 F.3d 593

, 596 (5th Cir. 2001). The Government also established
that Jackson aided and abetted the possession of cocaine base with intent to
distribute and the distribution of cocaine base. See United States v. Jimenez,

509 F.3d 682

, 689 (5th Cir. 2007).
For the first time on appeal, Jackson argues that his sentences for the
possession with the intent to distribute cocaine base and the distribution of
cocaine base were multiplicitous. Because Jackson did not raise this argument
in the district court, review is limited to plain error. See United States v.
Whitelaw,

580 F.3d 256

, 259-60 (5th Cir. 2009); Puckett v. United States,

556 U.S. 129

, 135 (2009).     Because the Government presented evidence of
independent handling of drugs prior to and independent of delivery, Jackson’s
argument fails. See United States v. Carrion,

809 F.2d 1120

, 1125 (5th Cir.
1987).
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No. 12-51253
Finally, Jackson also argues that his sentence was unreasonable. See
Gall v. United States,

552 U.S. 38

, 51 (2007). The district court did not err
procedurally by relying on the presentence report to conclude that Jackson was
responsible for at least 196 grams of cocaine base.       See United States v.
Cabrera,

288 F.3d 163

, 173-74 (5th Cir. 2002); see also United States v. Ollison,

555 F.3d 152

, 164 (5th Cir. 2009).      The district court did not plainly err
procedurally in relying on the presentence report in applying a two-level
increase to Jackson’s base offense level for possession of a dangerous weapon
in relation to the offense. See United States v. Garcia-Gonzalez,

714 F.3d 306

,
315 (5th Cir. 2013) (holding that a failure to object to an enhancement results
in review for plain error only). The sentence imposed by the district court,
without objection, was within the advisory guidelines range and, therefore,
was presumptively reasonable. See United States v. Alonzo,

435 F.3d 551