IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20045

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRACY LAMONT MCDONALD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

February 12, 2001

Before POLITZ, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Tracy Lamont McDonald (“McDonald”) appeals from his conviction and sentence for one

count of po ssessio n with intent to distribute five or more grams of cocaine base and one count of

distribution of five or more grams of cocaine base, in violation of 21 U. S.C. §§ 841(a)(1) &

(b)(1)(B)(iii). The district court sentenced McDonald to concurrent 120-month terms of

imprisonment and concurrent eight -year t erms of supervised release. Because we find that the

possession and distribution charges merged into a single offense, we reverse and remand t o the

district court for further proceedings.2 FACTUAL AND PROCEDURAL HISTORY

On December 1, 1998, undercover Houston police officers and a confidential informant met

with McDonald to arrange the purchase of crack cocaine from him. They then drove across town

where McDonald confirmed the purchase and agreed to sell the crack cocaine for $300. McDonald

subsequently walked to an unknown residence in the 5400 block of Bataan Street (the “Bataan street

residence”) and thereafter returned to the car with approximately 12 grams of crack cocaine in his

left hand that he delivered to the undercover officers.

McDonald was arrested and charged in a two-count indictment with possession with intent

to dist ribut e in excess of five grams of crack cocaine (Count 1) and distribution of more than five

grams of crack cocaine (Count 2). He subsequently pleaded guilty to both counts, and the district

co urt sent enced him to 120 months’ imprisonment on each count with the sentences to run

concurrently. McDonald now appeals the conviction and sentence.

DISCUSSION

McDonald raises as the sole issue on appeal that the district court erred in convicting and

sentencing him for both possession with intent to distribute crack cocaine and distribution of crack

cocaine instead of merging the possession offense into the distribution offense. Although the district

court imposed concurrent terms of imprisonment, bot h convictions carried a mandatory special

assessment of $100, making the punishment on the two counts cumulative. S ee Rutledge v. United

States

, 517 U.S. 292, 301-03 (1996). Although McDonald did not raise this challenge in the district

court, t he government concedes that McDonald may raise the issue for the first time on appeal

because 18 U.S.C. § 3013 required the district court to impose the mandatory assessment on each

count. See id

.3

McDonald argues that both counts should be me rged, in accordance with U nited States v.

Hernandez

, 591 F. 2d 1019, 1022 (5 th Cir. 1979) (en banc) (merging into a single offense the

defendant’s possession with intent to distribute offense and his distribution offen s e because “there

was no evidence of [the defendant’s] possession of a controlled substance with intent to distribute

it apart from the evidence of the actual sale. When the intent to distribut e was executed by a

successful sale, the possession with intent to do so merged into the comp leted offense.”) (citing

United States v. Curry , 512 F. 2d 1299, 1306 (4 th Cir. 1975)); see also United States v. Scott , 987

F. 2d 261, 266 (5 t h Cir. 1993) (stating that “[a] single drug sale cannot support a conviction for

possess io n wit h intent to distribute, as well as a conviction for distribution”). In contrast, the

government argues that the possession and distribution counts should not be m erged into a si ngl

e

offense because the instant case’s facts are indistinguishable from those of U nited States v. Foundas

,

610 F. 2d 298 , 302 (5 t h Cir. 1980) (holding that the possession charge was separate from the

distribution charge because the defendant “admitted t elling the DEA officer that she had cocaine; she

disappeared at one point t o get it; and she produced cocaine from her purse at the appropriate

moment”). In particular, the government assert s t hat McDonald’s return from the Bataan street

r esidence holding the crack cocaine in his left hand constitutes evidence of an act of po ssession

separate from the act of distribution.

A review of the record, however, indicates, that this case is indistinguishable from Hernandez

.

Unlike in Foundas

, where there was clear evidence to indicate that the defendant had a reserve supply

of drugs from which she could make an additional drug transaction with undercover agents and that

she left the agents for a period of time in order to receive the drugs from a hiding place, there is no

such evidence here. For instance, there is no evidence to show that McDonald retrieved the crack4

cocaine from the Bataan street residence or purchased it from someone there. As McDonald argues,

that he returned from the residence with the crack cocaine in his left hand may simply indicate that

he took the cocaine out of his pocket after he decided that it was safe for him to complete the drug

deal. Thus, as in H ernandez

, the intent to distrib ut e t he crack cocaine, as well as McDonald’s

possession with intent to distribute the co caine, was achieved by the sale of it to the undercover

officers. See Hernandez , 591 F. 2d at 1022.

CONCLUSION

Because we find that the possession and distribution charges merge into a single offense, we

REVERSE and REMAND to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.