UNITED STATES of America, Plaintiff-Appellee v. Leatrice ROBERTS, Jr., Defendant-Appellant.
No. 06-11059
United States Court of Appeals, Fifth Circuit.
Nov. 21, 2007.
255 Fed. Appx. 849
Summary Calendar.
Finally, Zapata argues that the BIA abused its discretion for not ruling on the ineffective assistance of counsel claim that she raised for the first time in her appeal of the denial of her motion to reopen. The BIA ordinarily does not entertain claims raised for the first time on appeal. In re: J-Y-C-, 24 I. & N. Dec. 260, 266 n. 1 (BIA 2007). However, even if it were to consider an ineffective assistance claim that was raised for the first time in the appeal of the denial of a motion to reopen, the alien would have to demonstrate that she met the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). See In re: Cruz-Garcia, 22 I. & N. Dec. 1155, 1159 (BIA 1999) (en banc). Zapata admits that she has not done so. Zapata‘s petition for review is DENIED.
Carlton C. McLarty, Assistant Federal Public Defender, Federal Public Defender‘s Office Northern District of Texas, Dallas, TX, for Defendant-Appellant.
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Leatrice Roberts, Jr., pleaded guilty to an indictment charging him with being a felon in possession of a firearm. The district court sentenced Roberts to 115 months of imprisonment. For the first time on appeal, Roberts argues that because he neither pleaded guilty nor was convicted by a jury he stands “unconvicted” and his sentence must be vacated. Roberts‘s argument is based on the plea colloquy wherein the magistrate judge asked “Mr. Roberts, having heard all of the foregoing how do you plead to Count 1 of the indictment?” Roberts responded “Yes, sir.”
Roberts failed to raise this argument in the district court. Accordingly, the plain error standard of
Roberts also argues that the district court plainly erred in concluding that his 1992 Texas conviction for delivery of a controlled substance was a prior controlled substance offense under U.S.S.G. § 2K2.1(a)(4)(A). His argument is reviewed for plain error. See United States v. Gonzales, 484 F.3d 712, 714 (5th Cir.), cert. denied, U.S., 127 S.Ct. 3031, 168 L.Ed.2d 748 (2007).
The Government concedes that an offense under
The 1992 indictment charged Roberts with actual and/or constructive transfer and delivery of cocaine to Marian Elkins. Roberts concedes that the indictment narrows his prior conviction “down to” actual or constructive transfer. He argues, however, that this court has never held that an actual or constructive transfer of a controlled substance is a controlled substance
Roberts next argues that the term “distribution” is undefined in U.S.S.G. § 4B1.2(b) and that the Texas offense of constructive transfer of a controlled substance criminalizes conduct that lies outside of the generic definition of distribution. He argues that under Texas law, a constructive transfer includes situations in which the transferor does not manually transfer the contraband to the transferee, including situations involving an intermediary and situations in which no actual delivery is completed. He also argues that under Texas law, a constructive transfer can be accomplished by the administration of a drug to a patient.
Roberts‘s argument fails, however, because the indictment in his case clearly identifies a transferor, a transferee, an illegal drug, and a completed transaction. There is no allegation of an intermediary or an uncompleted transaction. Further, the wording of the indictment leaves no possibility that Roberts was administering a drug. The indictment thus supports the district court‘s finding that his prior offense was a controlled substance offense under § 2K2.1(a)(4)(A). No plain error is shown. See Gonzales, 484 F.3d at 714.
Roberts also asserts that his 115-month sentence is unreasonable. This court has held that a sentence within a properly calculated guideline range should be afforded a rebuttable presumption of reasonableness, and the Supreme Court 1 has upheld the use of this presumption.1 Rita v. United States, U.S. -, 127 S.Ct. 2456, 2463-68, 168 L.Ed.2d 203 (2007); United States v. Alonzo, 435 F.3d 551, 553-54 (5th Cir.2006).
It is apparent by the district court‘s consideration of the information in support of the downward-departure motion that the court gave due attention to Roberts‘s medical condition. Further, the district court was not bound by either Roberts‘s own self-serving assessment of the offense, or the compunction of the victim.
AFFIRMED.