United States v. Davis ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10476
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN O’NEAL DAVIS, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:99-CR-276-1-A
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March 16, 2001
Before JOLLY, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:1
Alvin O’Neal Davis, Jr., appeals his guilty plea conviction
for possession with the intent to distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Davis argues
that the factual basis for his guilty plea was insufficient to
support the possession element of the offense. He further
contends that, pursuant to Apprendi v. New Jersey, 530 U.S. 466
(2000), the district court erred by failing to admonish Davis at
his rearraignment that drug quantity was an element of the offense,
1
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that this opinion should not be published and is not precedent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.
thereby rendering Davis’ guilty plea involuntarily made. Davis
also asserts that error resulted from the Government’s decision
against filing a motion for downward departure pursuant to U.S.S.G.
§ 5K1.1.
We have reviewed the record and briefs submitted by the
parties and hold that there was an adequate factual basis to
support the possession element of the offense, and that any error
committed by the district court in failing to admonish Davis that
drug quantity was an element of the offense was harmless. United
States v. Marek, 238 F.3d 310 (5th Cir. Jan. 4, 2001, Nos. 98-
40568, 98-40955)(en banc), 2001 WL 10561 at *3; United States v.
Cuevas-Andrade, 232 F.3d 440, 443 (5th Cir. 2000). We further hold
that, pursuant to the terms of Davis’ plea agreement, the
Government was not required to file a motion for downward
departure. United States v. Aderholt, 87 F.3d 740, 743 (5th Cir.
1996).
AFFIRMED.
2