United States v. Powell

574 F. App'x 390
Court of Appeals for the Fifth Circuit·Decided June 26, 2014·No. No. 13-50182·Published·Cited by 7 cases

Opinion

PER CURIAM: *

Courtney Powell pleaded guilty to possessing with intent to distribute methamphetamine and of being a felon in possession of a firearm, and was sentenced to concurrent 160- and 120-month terms of imprisonment. He appeals his conviction and sentence. The government moves to enforce a clause in Powell’s plea agreement waiving his right to appeal with certain exceptions that the government argues are inapplicable, and accordingly moves to dismiss the appeal. We deny the government’s motion to dismiss the appeal but grant the government’s request to enforce the plea agreement in part, and we affirm Powell’s conviction and sentence.

I.

Courtney Powell pleaded guilty to possessing with the intent to distribute a mixture or substance that contained a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a). He was arrested during a traffic stop pursuant to a parole warrant and was found with 37.74 grams of methamphetamines in Ziploc bags, a small digital scale, empty Ziploc bags, and $2,471 in cash. Investigators determined that the methamphetamine found in Powell’s possession was D-methamphetamine hydrochloride, commonly known as “ICE.” According to investigators, one ounce of ICE was worth $1500, and, accordingly, the $2,471 found in Powell’s possession was the cash equivalent of 1.64 ounces or 46.70 grams of ICE. Officers also discovered, with the assistance of a narcotics-sniffing canine, 1.07 grams of methamphetamine actual and various firearms and ammunition in Powell’s home pursuant to a search warrant following Powell’s arrest.

Powell signed a written plea agreement in which he agreed to plead guilty to both the distribution and felon-in-possession charges. The plea agreement contained a waiver of Powell’s right to appeal his conviction or sentence except to challenge a sentence above the maximum authorized by statute or above the “applicable” U.S. Sentencing Guidelines range. Powell entered his plea before a magistrate judge, and the district court accepted the plea and plea agreement.

The district court determined that the applicable advisory U.S.. Sentencing Guidelines range of imprisonment was between 151 and 188 months. The district court determined that Powell would be held responsible for 84.44 grams of ICE and 1.07 grams of methamphetamine actual, resulting in a base offense level of 32, putting his base offense level at 32 pursuant to § 2D1.1 of the Sentencing Guidelines. The amount of ICE for which the district court held Powell responsible included $2,471 found on Powell’s person at the time of his arrest, which the Sentencing Guidelines permit to be “converted” into ICE for sentencing purposes. The district court further determined that Powell’s firearm possession would give rise to a two-level increase under § 2D1.1(b)(1) of the Sentencing Guidelines, and that Powell was [393] entitled to a three-level reduction for acceptance of responsibility. The drug count carried a statutory maximum term of 240 months, and the felon-in-possession charge carried a statutory maximum term of 120 months. 18 U.S.C. § 922(g)(1); 21 U.S.C. §§ 841(a)(1), (b)(1)(C). Accordingly, the advisory guidelines imprisonment range on count two was capped at 120 months of imprisonment.

In his sole objection to the PSR, Powell argued that the PSR erroneously converted $2,471 found on Powell’s person at the time of his arrest into ICE. He argued that the currency should have been converted using the street price for regular methamphetamine or, alternatively, not converted at all. At sentencing, the district court overruled Powell’s objection, concluding that “[i]t is appropriate for the probation officer to have used the calculation and conversion of the ICE, since that’s what Mr. Powell was selling at the time, and he has no evidence to the contrary.”

The district court accepted the guidelines calculations as set forth in the PSR and sentenced Powell to concurrent 160- and 120-month terms, respectively on his convictions under §§ 841 and 922. He was also sentenced to two concurrent three-year terms of supervised release. Powell timely appealed.

II.

On appeal, Powell asserts various claims of error challenging his convictions and corresponding sentences imposed by the district court. Powell asserts, namely: that the district court erred in converting the seized cash to a quantity of controlled substance; that counsel’s failure to insist on a jury trial based on the attribution of cash to drugs constituted ineffective assistance of counsel; that police investigators’ use of a narcotics-sniffing canine at Powell’s home constituted an unreasonable search under the Fourth Amendment; that the search of Powell’s automobile constituted an unreasonable search under the Fourth Amendment; that the Second Amendment protects the right of a convicted felon to keep a firearm if he has never been convicted of a firearm offense or of physical violence; and that counsel’s failure to raise a Second Amendment issue constituted ineffective assistance of counsel.

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United States v. Powell, 574 F. App'x 390 (5th Cir. 2014).

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