United States v. McCoy , 261 F. App'x 737 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 14, 2008
No. 06-20817
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
SONYA YVETTE MCCOY
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.
PER CURIAM:*
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.
*
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should not be published and is not precedent except under the limited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.
No. 06-20817
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, __F.3d__, No. 06-20141, 2007
WL 4303800, *1 (5th Cir. Dec. 11, 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, 127 S. Ct. 3031 (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, 128 S. Ct. 410 (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.
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