United States v. Powell ( 2010 )

Case: 08-10499 Document: 00511125457 Page: 1 Date Filed: 05/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 28, 2010
No. 08-10499
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
OWEN DONOVAN POWELL,
Defendant – Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-56-ALL
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appealing the judgment in a criminal case, Owen Donovan Powell
presents arguments that he concedes are foreclosed by United States v. Ford, 509
F.3d 714, 716-18 (5th Cir. 2007). In Ford, this court held that the Texas offense
of possession of a controlled substance with intent to deliver was
indistinguishable from the offense of possession with intent to distribute, the
latter of which is defined under U.S.S.G. § 2K2.1 as a controlled substance
offense. 509 F.3d at 716-17. This court held that the district court did not err
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10499 Document: 00511125457 Page: 2 Date Filed: 05/28/2010
No. 08-10499
in enhancing Ford’s sentence pursuant to Section 2K2.1(a) based on his prior
conviction for possession with intent to deliver a controlled substance. Id. The
definition of “drug trafficking offense” under Section 2L1.2(b)(1) is nearly
identical to that of a “controlled substance offense” under Section 2K2.1. See id.at 717 n.2. Ford’s holding applies equally to a Section 2L1.2 enhancement. See
id. Powell’s argument is foreclosed by Ford.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time in which to file a brief
is DENIED as unnecessary.
2