United States v. Jessica Petree

Case: 13-50946 Document: 00512761671 Page: 1 Date Filed: 09/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50946
FILED
September 9, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JESSICA LEE PETREE,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-155-1
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Jessica Lee Petree challenges her guilty-plea conviction for possession
with intent to distribute a mixture and substance containing a detectable
amount of 4 methyl-N-ethylcathinone (4-MEC) and alpha-PVP hydrochloride
(alpha-PVP), both schedule I “controlled substance analogues”, as defined by
21 U.S.C. § 802(32)(A) and in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 13-50946
Petree contends: the factual basis was insufficient to support her guilty
plea; alpha-PVP is not a controlled-substance analogue, within the meaning of
the Controlled Substances Analogue Enforcement Act (CSAEA); and the
CSAEA is unconstitutionally vague as applied to 4-MEC and alpha-PVP.
Because Petree did not raise these issues in district court, review is only
for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012). Under that standard, Petree must show a forfeited plain (clear or
obvious) error that affected her substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If she does so, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. Id. To show the claimed-error affected
her substantial rights, Petree “must demonstrate a reasonable probability
that, but for the error, [s]he would not have entered the plea”. Broussard, 669
F.3d at 546 (citation and internal quotation marks omitted).
In determining whether the factual basis for a guilty plea is sufficient,
the district court must compare “the conduct to which defendant admits” and
“the elements of the offense charged”. Id. The factual basis must be specific
enough for the court to determine defendant’s conduct “is within the ambit of
the statute’s prohibitions”. Id. (citation and internal quotation marks
omitted). Implicit in the acceptance of a guilty plea is the district court’s
determination that Petree’s “admitted conduct satisfied every element of” the
offense. Id. This court “‘may look beyond those facts admitted by [Petree]
during the plea colloquy and scan the entire record for facts supporting [her]
conviction’ and draw any fair inferences from the evidence”. Id. (quoting
United States v. Trejo, 610 F.3d 308, 313, 317 (5th Cir. 2010)).
Based on the record as a whole, there was a sufficient factual basis for
the district court not to have committed the requisite clear or obvious error in
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No. 13-50946
determining Petree’s conduct was within the ambit of the charged offense given
that, inter alia, Petree admitted the substances were analogues and DEA
testing concluded the substances were analogues. Petree also claims the
district court failed to find expressly that she knew the substances were
controlled substance analogues; nevertheless, she cannot show this alleged-
failure constituted reversible plain error. See United States v. Desurra, 865
F.2d 651, 653 (5th Cir. 1989) (“If a defendant possesses an analogue, with
intent to distribute . . . defendant need not know that the drug . . . is an
analogue”.). Furthermore, Petree’s contention that alpha-PVP is not an
analogue, which she frames as a distinct legal question, fails for the same
reason.
As for Petree’s constitutional challenge to the CSAEA, this court has held
the controlled-substance analogue statute, 21 U.S.C. § 813, is “clearly and
specifically defined, in terms readily comprehensible to the ordinary reader”
and “provides adequate notice of what conduct is prohibited” and, therefore, is
not unconstitutionally vague. United States v. Granberry, 916 F.2d 1008, 1010
(5th Cir. 1990).
AFFIRMED.
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