Opinion
No. 06-20817 Summary Calendar.
January 14, 2008.
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office Southern District of Texas, Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:06-CR-66-1.
Before KING, DAVIS, and CLEMENT, Circuit Judges.
Sonya Yvette McCoy appeals the sentence imposed following her guilty plea to being a felon in possession of a firearm and moves to supplement the record with state court documents concerning her prior Texas convictions for delivery of a controlled substance. She argues that the district court plainly erred in determining that she had two prior Texas convictions that qualified as "controlled substance offenses" for purposes of a U.S.S.G. § 2K2.1(a)(2) base offense level enhancement.
According to the appellate record, McCoy was convicted in 2003 for possession with intent to deliver cocaine pursuant to TEX. HEALTH SAFETY CODE ANN. § 481.112(a). This conviction qualifies as a "controlled substance offense" under § 2K2.1. See United States v. Ford, 509 F.3d 714, 714-15 (5th Cir. 2007). The record additionally discloses that in 2000 McCoy was charged by bill of information with delivery of a controlled substance, also a violation of § 481.112(a), with the judgment reflecting that she pleaded guilty to delivery by actual transfer. The judgment therefore confirms that her conviction was for activity that constituted a controlled substance offense under § 2K2.1(a)(2). Cf. United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.) (holding that inspection of indictment and jury instructions confirmed that the defendant's § 481.112(a) conviction may have been for activity that did not constitute a "drug trafficking offense," i.e., activity constituting an offer to sell), cert. denied, ___ U.S. ___, 127 S.Ct. 3031, 168 L.Ed.2d 748 (2007); United States v. Morales-Martinez, 496 F.3d 356, 360-61 (5th Cir.) (holding that an undifferentiated guilty plea to an indictment charging the § 481.112(a) offense in the conjunctive did not necessitate a finding that the defendant committed a "drug trafficking offense" because it was unclear whether the defendant pleaded guilty to transfer of cocaine or the offer to sell cocaine), cert. denied, ___ U.S. ___, 128 S.Ct. 410, 169 L.Ed.2d 287 (2007). As such, McCoy has not demonstrated plain error on the part of the district court in calculating her base offense level pursuant to § 2K2.1(a)(2). See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
AFFIRMED; MOTION TO SUPPLEMENT THE RECORD AND LEAVE TO SUPPLEMENT RECORD EXCERPTS GRANTED.