IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10784

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN ANTHONY LEE,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-139-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

John Anthony Lee appeals his guilty plea convictions and sentences for 

being a felon in possession of a firearm and for conspiracy to obstruct justice 

through evidence concealment. Lee first argues that there was no factual basis 

for his guilty plea on the conspiracy count because he lacked the intent to 

destroy the evidence so it could not be used in an “official proceeding,” where 

that term is defined under the statute as a federal proceeding. Lee then argues 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 20, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-10784 Document: 00513010825 Page: 1 Date Filed: 04/20/2015
No. 14-10784

that the district court should have found that the Texas offense of delivery of 

a controlled substance, TEX. HEALTH & SAFETY CODE ANN. § 481.112, is no 

longer divisible in light of Descamps v. United States, 133 S. Ct. 2276 (2013). 

As Lee concedes he did not raise either objection in the district court, our 

review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).

As to Lee’s first argument, the factual basis he agreed to at his plea 

hearing alleged facts that satisfied the statutory requirements, including that 

Lee conspired with others to destroy videotape evidence in order to make it 

unavailable in his federal proceeding. See 18 U.S.C. § 1512(c)(1). As Lee 

acknowledges, the factual basis was sufficient on its face. Although he 

contends that subsequent information casts doubt on whether he could have 

foreseen the federal proceeding, given the record as a whole, including his 

sworn statement under oath, any error there may have been was not clear or 

obvious. See United States v. Alvardo-Casas, 715 F.3d 945, 952 (5th Cir. 2013). 

Further, Lee does not argue that his substantial rights were affected or that 

this court should exercise its discretion to correct the error because the error 

seriously affected the fairness, integrity, or public reputation of judicial 

proceedings. See Puckett, 556 U.S. at 135. Thus, he has effectively abandoned 

any such arguments. See United States v. Williams, 620 F.3d 483, 496 (5th 

Cir. 2010); United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).

We have previously rejected Lee’s contention that the Texas drug statute 

is not divisible in light of Descamps. See United States v. Teran-Salas, 767 

F.3d 453, 459 (5th Cir. 2014), petition for cert. filed (Dec. 15, 2014) (No. 14-

7593). Lee cites no case to the contrary and has not demonstrated error, plain 

or otherwise. See Puckett, 556 U.S. at 135.

AFFIRMED.

2

 Case: 14-10784 Document: 00513010825 Page: 2 Date Filed: 04/20/2015