* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11059

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

LEATRICE ROBERTS, JR

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:06-CR-2-ALL

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

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2007

Charles R. Fulbruge III

Clerk
No. 06-11059

2

heard all of the foregoing how do you plead to Count 1 of the indictment?”

Roberts responded “Yes, sir.”

Roberts failed to raise this argumentin the district court. Accordingly, the

plain error standard of FED. R. CRIM.P. 52(b) is applicable. See United States v.

Reyna, 358 F.3d 344, 348-50 (5th Cir. 2004) (en banc) (defendant denied right to

allocution) (citing United States v. Vonn, 535 U.S. 55, 65 (2002) (district court

failed to address defendant personally when taking guilty plea; applying

Rule 52(b)). Although he did not utter the word “guilty,” Roberts clearly used

language expressive of his culpability. See United States v. Williams,

20 F.3d 125, 134 (5th Cir. 1994) (this court does not “require such a talismanic

incantation, so long as the language used is expressive of the defendant’s

culpability”). Moreover, Roberts has never alleged that he did not knowingly

and voluntarily intend to enter a guilty plea in the instant case. He thus fails

to show prejudice affecting his substantial rights. See United States v.

Luna-Orozco, 321 F.3d 857, 860 (9th Cir. 2003).

Roberts also argues thatthe 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, 127 S. Ct. 3031 (2007).

The Government concedes that an offense under Tex. Health and Safety

Code Ann. § 481.112 may not automatically be classified as a controlled

substance offense for guidelines purposes. See Gonzales, 484 F.3d at 712. The

Government correctly argues, however,that it is permissible to look to Roberts’s

indictment in order to evaluate whether the prior offense qualifies as a

controlled substance offense. See United States v. Morales-Martinez,

496 F.3d 356, 358 (5th Cir. 2007).

The 1992 indictment charged Roberts with actual and/or constructive

transfer and delivery of cocaine to Marian Elkins. Roberts concedes that the
No. 06-11059

3

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 offense

under the Guidelines. The actual or constructive transfer of a controlled

substance is rationally understood to be distribution, which is specifically

included in the definition of a controlled substance offense set forth in § 4B1.2.

Roberts presents no authority which suggests otherwise.

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
No. 06-11059

1 Although he recognizes the binding nature of this precedent, Roberts

maintains that the presumption of reasonableness violates the Sixth

Amendment. Blue brief, 31 n.1; grey brief, 18. He does so in order to preserve

his argument for further review. Id.

4

Supreme Court has upheld the use of this presumption.1 Rita v. United States,

127 S. Ct. 2456, 2463-68 (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.