United States v. Owens ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 07-11300
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALBERT OWENS, JR
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-112-12
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
Albert Owens, Jr., pleaded guilty with a written plea agreement to
distribution of more than five grams of a mixture and substance containing a
detectable amount of cocaine base. The agreement contained a waiver of appeal
provision in which Owens waived his right to appeal his conviction and sentence
with the exceptions that he could bring a challenge based on 1) a sentence
exceeding the statutory maximum, 2) an arithmetic error at sentencing, 3) the
voluntariness of his guilty plea or the waiver, and 4) a claim of ineffective
*
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should not be published and is not precedent except under the limited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. 07-11300
assistance of counsel. The district court sentenced Owens to 130 months in
prison.
Owens argues that the factual basis supporting his plea is insufficient to
establish the elements of the crime. Because Owens did not challenge the
sufficiency of the factual basis in the district court, review is for plain error. See
United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir. 2002). Owens was
charged by indictment with distribution of a mixture containing crack cocaine
and with aiding and abetting. The elements of distribution are that the
defendant (1) knowingly (2) distributed (3) the controlled substance. United
States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996).
Contrary to Owens’s argument, aiding and abetting “is an alternative
charge in every indictment, whether explicit or implicit.” United States v. Neal,
951 F.2d 630, 633 (5th Cir. 1992). The elements of aiding and abetting under
18 U.S.C. § 2 are that (1) the individual associated with the criminal venture,
(2) purposefully participated in the crime, and (3) sought by his actions for it to
succeed. United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001). The factual
resume supporting Owens’s guilty plea shows that Owens acted as the doorman
or gatekeeper for the crack house. Owens concedes that this is sufficient to show
that he aided and abetted the distribution of crack cocaine. It is not disputed
that Owens associated with the criminal venture and sought by his actions for
the venture to succeed. See Garcia, 242 F.3d at 596. The district court did not
err in accepting Owens’s guilty plea.
Owens wishes to challenge his sentence based on a theory of sentencing
entrapment. Owens concedes that his argument seeking to invalidate his waiver
of appeal is foreclosed by circuit precedent, but he seeks to preserve the issue for
review by the Supreme Court. This court reviews de novo whether a waiver
provision bars an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir.
2002). Owens and his counsel signed the plea agreement, which contained the
appeal waiver barring an appeal of his conviction and sentence. During the
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No. 07-11300
rearraignment proceeding, the district court advised Owens that in the plea
agreement, he was in effect giving up his right to appeal or otherwise challenge
his conviction or sentence except for the reasons set forth in the waiver, and
Owens stated that he understood. Owens’s appeal waiver is valid and will be
enforced. See United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992).
The issue of sentencing entrapment is barred from review by the waiver.
AFFIRMED.
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