### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40065

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. KAROL RAY MCATEE, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-725-1

Before DeMOSS, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * Defendant-Appellant Karol Ray M cAtee (“McAtee”) was found guilty of possession of a mixture or s ubstance co n t a i n i ng approximately 0.52 of a gram of methamphet a m i n e , in vi olation of 21 U.S.C. § 844(a). Because his two prior simple possession convictions raised McAtee’s s t a tutory maximum term of imprisonment to two y ears pursuant to 21 U

. S.C. §§ 841 and 851, his violation qualified as a felony offense. See 18 U.S.C. § 3559(a). He was sentenced to time served—six months and eight days’ imprisonment—and required to pay a $100 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 7, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5th Cir. R. 47. 5, the court has d eterm ined that this op i n i o n s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40065 Document: 00512334289 Page: 1 Date Filed: 08/07/2013No. 12-40065

special a sse ssment. O n appeal, McAtee asserts that there was insufficient evidence of his gu i l t t o s u s tain a conviction; that the district court erred in admitting evidence of a pipe found in his car; and that the s entence enhancement was unconstitutional under A pprendi v. New Jersey , 530 U.S. 466 (2000), becau s e i t raised his offense from a misdemeanor to a f elony. We AFFIRM McAtee’s conviction and sentence. FACTS AND BACKGROUND

A. McAtee drove his rental car, a silver Chevrolet Malibu, t o the b o r d e r patrol checkpoint in F alfurrias, Texas at some time between midnight and 3:00 a.m. on July 10, 2011. He had rented the car from a Dollar-Rent-A-Car at 7:39 p.m. on July 9, 2011, and had been i n possession of the vehicle for less than a day when he s topped at the checkpoint. McAtee stopped at the primary inspection lane, whe r e B order P atrol Agent Ramon Paz (“Paz”) conducted a standard immigration inspection with McAtee. I n r e s p o n s e to Paz’s questions, McAtee stated that he w as a U.S. citizen and was traveling to Mineral Wells, T exas to visit family. While the i nterview was ongoing, Border Patrol Agent Jose Padron (“Padron”), a canine h andl er , walked his drug-detection dog by the exterior of the

car for a “non-intrusive air s niff.” The dog alerted to the presence of drugs in the

car. McAtee then agreed to a further inspection o f his car. He drove it over to the secondary inspection a r e a , exited the vehicle, and closed the car do or. Paz continued to question M cAtee. McAtee i nf ormed Paz that the car was a r e n t al
car, that he rented it because his o w n c a r broke down, and that he had been driving it for onl y o n e d a y . Paz later testified that McAtee did not act nervous and was cooperative. While the interview was ongoing, Padron and his dog w alked around the

car. The dog alerted to the presence of drugs at the driver’s side door. Padron opened t h e door and saw a red plastic b ag, about two to three i nches long and

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one inch wide, on the f

loor of the car in front of the driver’s seat. Padron testified that the bag was plainly vi sible as s o o n a s he o pened the c ar door. H e further testified that he did not have to look under the seat and that the bag was on the floor and not under the pedals. Padron opened the bag and found a crystal-like substance inside. M cAtee was then p l aced under arrest. After McAtee’s arrest, Border Patrol Agent Luis Lopez (“Lopez”) conducted an inventory of the car. He found numerous p ersonal items belonging to McAtee, including two green duffle bags with c lothing and toiletries, pillows, blankets, a hearing aid, a nd a n empty aquarium. In addition, Lope z found a pipe in a plastic black case next to McAtee’s spare hearing aid in the vehicle’s center console. Border patrol agents also c onducted a back-scatter X-ray of the vehicle. Th ey did not find any hidden compartments or additional contraband. Criselda Gracia Pendleton (“Pendleton”), a Ki ngsville Sheriff’s Office investigator ass i gn ed t o the Drug Enforcement Agency (“DEA”) arrived at the checkpoint at 3:00 a.m. S h e took custody of McAtee’s person a l it e ms and interviewed McAtee. McAtee informed her that he was going to Mineral Wells for a scheduled appointment at 6:00 a . m. on July 11, 2011. He also told her that

no one else had access t o or had driven the c ar since he r e nted it. The s ubstance in the red bag was sent to the DEA laboratory in Dallas, Texas. Ted Chapman (“Chapman”), a forensic chemist w i t h t h e D EA, t ested the substance and concluded that it was methamphetamine that weighed 0.52 o f a gram. The pipe

was not tested for drug residue. There were no fingerprints on either the red bag or the pipe. B. Under a superceding i ndictment, M cAtee was charged with a s ingle count of s imple possession o f a mixture or substance containing approximately 0.52 of

a gram of methamphetamine, in violation of 21 U .S.C. § 8 44(a). Before trial, the Government filed an Information of Prior Convictions, submitted pursuant to 21

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U.S.C. § 8 51, asserting that M cAt e e h a d two prior convictions for simple possession of m arijuana in an amount less than or equal to two o unces. At trial, the Government presented five witn e s s es: Paz, Padron, Lopez, Chapman, and Pendleton. Chapman was tendered as an e xpert witness. The G overnment also requested that several exhibits be entered into evidence, including inter alia a p h otograph of the pipe in the c enter console and the p ipe itself. McAtee’s attorney objected to both. The district c o urt overruled the objections and allowed the evidence to be admitted. After the c lose of the Government’s case, McAtee’s attorney moved for a judgment of acquittal. The district court d enied the motion. McAtee did not present any defense witnesses or evidence. The jury deliberated for two hours on the first day of deliberation and throughout most of the second day. On the morning of the second day of d eliberation, the district court gave the jury an Allen charge with no objections from either party. At 2 : 0 0 p . m . on the second day of deliberations, the jury returned with a conviction of guilty. Simple p o s s ession of a controlled substance is presumptively a misdemeanor p ursuant to 2 1 U.S.C. § 844(a). It qual i fies a s a felony offense where the defendant has at least one prior drug o ffense c onviction. 21 U .S.C. § 844(a); 18 U.S.C. § 3559(a). Pursuant to § 8 44(a), McAtee w as subject to a term of imprisonment of at least ninety days but not more than three years because he had two s uch prior convictions. The PSR calculated a gu i d e l ine range for imprisonment of three to six months, and concluded that the minimum term of imprisonment was three months and the maximum term was three years due to his two prior simple possession convictions. McAtee denied that he was the person convicted in the two c ases identified in the Information of Prior Convictions. At the sentencing h earing, the Government p ro duc e d evi d e nce of the convictions, included a certified copy of the January 25, 1 994 judgment against Karol Ray McAtee and a c e rtified copy of the September 1 0, 1996 j udgment against Karol Ray McAtee. Both convictions were

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for possession of two ounces or less of marijuana. Each judgment copy c ontained

a copy of the defendant’s fingerprints, though only the prints on the 1996 judgment were legible. The Government also produced a fingerprint card taken by Pendleton for the p urpose of comparison. Finally, the Government produced

a Miranda card that Pendleton read to McAtee during her i nitial interview with McAtee and which McAtee had signed. Lieutenant Fred Flores (“Flores”), head of the Nueces C ounty Sheriff’s Departm e nt Identification Crime Records Division, testified that the fingerprints on the fingerprint card matched the f i n g erprints o n the 1996 j udgment, b ut that the fingerprints on th e 1 9 9 4 judgment were not sufficiently clear to allow comparison. Flores f urther testified that the defendant’s signature on the 1996 card vi s u a lly matched McAtee’s signatu r e on the Miranda card. The district court found that McAtee was the defendant convicted in both judgments. At the time of sentencing, McAtee had been imprisoned for six months and eight d ays. The district court sentenced him to time served, resulting in an upward v ariance from th e guideline range. The district court did not s entence McAtee to s u p e rvi s ed release, but did require McAtee to pay a special assessment of $100. McAtee now appeals. ANALYSIS A. We review de novo the district c o u r t ’ s denial of McAtee’s motion for judgm e nt of acquittal. United States v . Ragsdale , 426 F.3d 7 65, 770 (5th Cir. 2005). We “will affirm the j ury’s v erdict if a reasonable trier of fact could conclu d e f

rom the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the jury a nd drawing all reasonable inferences from the evidence to s u pport the verdict.” Id. O ur standard is “highly deferential to the verdict.” United States v.

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Moreno-Gonzalez , 662 F .3d 369, 372 ( 5th Cir. 2 011) (quoting United States v. Harris , 293 F.3d 863, 869 (5th Cir. 2002) (internal quotation marks omitted)). Under § 844(a), it is “unlawful for a ny person k nowingly or intentionally to p o ssess a controlled substance.” The e lements of the ch arge are: “1) knowing, 2) possession, 3) of a controlled substance.” United St ates v. Steen , 55 F.3d 1022, 1031 (5th Cir. 1995). On appeal, McAtee c o ntends that the Government failed to prove knowing possession beyond a reasonable doubt. Possession of a controlled substance may be actual or const r u c t ive. See United States v. Ramos-Cardenas , 5 2 4 F.3d 600, 605 (5th Cir. 2008). We have “defined constructive possession as ownership, dominion, or control over the contraband, or as dominion ov er the premises in which the contraband is found.” United States v. Hinojosa , 349 F.3d 200, 203 (5th Cir. 2003). Where contraband is f ound in a vehicle, knowledge may sometimes be inferred from control of the vehicle. United States v. M endoza , 522 F.3d 482, 489 (5th Cir. 2008). Specifically, “[c]ontrol will suffice on its own if the drugs are clearly visible or readily accessible.” United States v. Garza , 990 F.2d 171, 174 n .10 ( 5 t h Cir. 1993). Where the contraband is concealed, then “other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledg e ” is required to prove knowledge. Mendoza , 522 F.3d at 4 90 (internal quotation marks o m i t t e d) (citations omitted); s ee also United States v. Pennington , 2 0 F.3d 593, 598 (5th Cir. 1994). Here, the methamphetamine w as not concealed. It was in a small, brightly

c o l o r e d red baggie on the driver’s side f loorboard, in front of the seat. Padr o n testified that it was clearly visible to him as soon as he opened the driver’s side door. The b aggie was n ot under the seat or the pedals, but rather on the floor in front o f the driver’s seat. Because the drugs were “clearly visible or readily accessible,” a jury m ay infer that the elements knowledge and constructive possession have been proved without t h e Government having to present

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additional circumstantial evidence of guilty knowledge. See id. The G overnment entered i nto evidence the Dollar Rent-A-Car agreement that McAt e e s i gned. P e n dl e t on testified that she a sked McAtee if anyone else had access to the c a r since he rented it and he confirmed that no one else had driven it since he had rented it. Although a surveillance camera at the r e ntal location showed that another man was with M cAtee when he r ented the car, it did not show that the

man ever entered the vehicle. McAtee h as never asserted that a nyone else had

access to his rental c a r a f t e r h e took possession of it. C hapman, a forensic chemist, also testified that he tested the substance inside the red baggie and found that it was methamphetamine. On appeal, McAtee’s counsel contends that the m ethamphetamine might have b e e n placed in the car before M cAtee rented it. He did not present any evidence in support of this theory. Lopez and Pendleton testified that numerous personal items belonging to M cAtee were found in the car. McAtee did not present evidence or elicit testi m o n y t e n d i n g to s how that any item in the car belonged to s omeone other than McAtee. In the p resent case, the G overnment p r e s e n ted sufficient evidence of knowing constructive possession t o allow a rational trier of fact to find that there was p roof beyond a r e asonable doubt that McAtee knowingly possessed 0.52 of a gram of methamphetamine. We therefore affirm the jury v erdict and the district court’s denial of McAtee’s motion for acquittal. B. McAtee also contends that the district court erred in admitting evidence of the pipe found next to his hearing aid in the center console of his rental car. The district court admitted i nto evidence, over McAtee’s objections, two exhibits pertaining to the pipe: the pipe itself and a photograph of the pipe i n the console of McAtee’s rental car. We review the di strict court’s evidentiary rulings for an abuse of discretion, subject to harmless error analysis. United States v. J ackson , 7 Case: 12-40065 Document: 00512334289 Page: 7 Date Filed: 08/07/2013No. 12-40065

636 F.3d 687, 692 (5th Cir. 2011). “A trial co u r t ab u ses its discretion when its ruling is based on an erroneous view of the law o r a c learly erroneous assessment of the evidence.” Id. (quoting United States v . Y anez Sosa , 513 F.3d 194, 200 (5th Cir. 2008) (internal quotation marks omitted)). “The proper test to apply in deciding the admissibility of

. . . ‘other acts’ evidence depends u pon whether the evidence in question is ‘intr i n s i c ’ or ‘extrinsic’ evidence.” See United States v. Williams , 900 F.2d 8 23, 8 25 (5th Cir. 1990). The pipe and photograph are not intrinsic evidence. T h e p i pe was not found next t o the methamphetamine, but rather in the center conso l e o f t he vehicle. N o evidence was adduced to show that it contained traces of methamphetamine or that its intended purpose i nvolve d m e th a m p h e t a m ine. On cross-examination, Lopez t estified that the pipe contained a green, leafy residue that was never tested. The Gover n m e nt was able to present all its evidence of McAtee’s methamphetamine possession without p re s e ntin g evidence of the pipe. Therefore, the pipe-related evidence was not “inextricably intertwined” with the evidence of m ethamphetamine possession. United States v . Rice , 607 F.3d 133, 141 (5th C ir. 2010) (citatio n s o mitted) (internal quotation marks omitted). It also

was not “part of a single criminal episode or . . . necessary preliminaries to the crime charged” a n d w a s not necessary to “complete the story of th e crime by proving the immediate context of events in time an d p lace.” Id. (citations

om itt e d) (int e rn al qu o t atio n m ark s omitted). The pipe-related evidence therefore was extrinsic, not intrinsic. Extrinsic evidence is governed by Federal Rul e o f E vidence 404(b). Pursuant to the Rule 4 04(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a p erson’s character in orde r t o show that on a particular occasion the person acted in accordance with the c h a r a c t e r , ” b ut “may be admissible for another purpose, such as proving motive, o pportunity, intent, preparation, plan, knowledge, identity, absence of mistake, o r lack of accident.”

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Extrinsic evidence must satisfy a two-step a dmissibility t est: “First, it must be determined that the extrinsic offense evidence is relevant t o an i s sue o ther than the defendant’s character. Second, the evi d ence must p ossess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.” United States v. Be e c h u m , 582 F.2d 8 98, 911 (5th Cir. 1978) (en banc); see a lso United States v. Grimes , 2 44 F.3d 3 75, 384 (5th Cir. 2001). We have explained that [i]n weighing t h e probative value and u nfair prejudice, this court must make a commonsense a s sessment of all th e circumstances surrounding the extrinsic offense. Probative v alue m u st be determined with regard to the extent to which the defendant’s unlawful intent is established by other evidence, stip u l a t i on, or inference. Other factors to b e considered include the overall similarity o f the extrinsic a nd charged offenses, a nd the amount of time that separates the extrinsic and charged o ffen s e s a s well as any limiting instructions. United States v. Cockrell , 587 F.3d 674, 6 78 ( 5th Cir. 2009) (citation s o m i tted) (internal quotation mark s o m itt e d)

. H e r e, the p ipe-related evidence had very low probative value. The Government never tested the green residue on the p ipe and presented no evide n c e at trial that the pipe had been used for anything unlawful. Even if the Government had presented evidence that the pipe contained marijuana residue, the pipe would have m ade it o nly “slightly more probable that he knew” h e possessed methamphetamine. See United States v. Williams , 957 F.2d 1 238, 1244 (5th C ir. 1992). The fact that the pipe was never tested significantly lowered the already s light probative value of th e p ip e - r e l at e d evidence. The prejudicial effect substantially outweighed the pipe evidence’s slight probative v alue. The G overnment elicited testimony r egarding the p r esence of the pipe in McAtee’s vehicle without also eliciting t estimony that the pipe was

never t ested for drugs. The Gove rn m e nt al s o s t ated on rebuttal closing argument

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that the pipe was one of many c oincidences in the case that “so to speak, equal[ed] guilty.” That the pipe was not tested for drugs and the residue on the pipe did not resemble methamphetamine came in only o n cross-examination by the defe n s e . Without the defense’s cross-examination, the jury might have assumed that the pipe was used for illegal purposes, and “the danger of unfair
pr ej u d i c e from admission of the drug-related evidence

. . . i s great, because a drug offense is the kind o f crime for which the jury may feel the defendant should be punished, regardless of his guilt as to the charged offense.” United States v . Sumlin , 489 F.3d 683, 691 (5th Cir. 2007) (citations omitted) (internal quotation marks omitted). Therefore, the court erred in admitting e vi d e n c e of the pipe at trial. H o wever, the district court’s error was ultimately harmless. An error is harmless when it does not affect the defendant’s substantial rights. See Sumlin , 489 F.3d at 691. “To determine whether an e rror affects the substantial rights of the complaining party, this court has explained: ‘[U] nl ess there i s a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not r equired.” Id. (quoting W illiams , 957 F

. 2d a t 1 2 4 2 )

. “When the other evidence of guilt is overwhelming, a nd the error would not have substantially influenced the j ury’s verdict, the error is harmless.” United States

v. Hawley , 516 F.3d 264, 2 68 (5th C i r . 2 0 0 8) ; see also United States v . McCall , 553 F.3d 821, 829 (5th Cir. 2008) (concluding that any error i n admitting evidence of prior drug dealings was harmless because there was “ ample evidence of his guilt”). I n the present case, the Government presented evidence that the methamphetamine was in clear view o n t h e driver’s side floorboard, that McAtee’s possessions were in the car, and that he was the only person who had driven or accessed the car s i nce it was rented. The Government also presented evidence that McAtee’s p ossessions, including his clothes, were sp r ead throughout the car. The evidence was more than sufficient to p rove constructive

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possession and knowledge. The district court’s error in admitting th e p i p e evidence was therefore harmless. C. McAtee also contends that the enhancement provision of 2 1 U.S.C. § 844 is unconstitutional u nder the rule of Apprendi , 530 U.S. 466, because it elevates the offense from a misdemeanor to a felony. Because McAtee did not raise this objection in district court, we review for plain error. See United States v. Davis , 487 F .3d 282, 287-88 (5th Cir. 2007). To establish plain error, McAtee must d emonstrate (1) that there was an error (2) that was clear or obvious , a n d ( 3 ) which affected his substantial rights. See Pu ckett v. United States , 556 U.S. 129, 1 3 4

- 3 5 (2009). Once these three requirements have been met, we have th e discretion to remedy the error if it “seriously affect[s] the fairness, integrity, or p ub l i c reputation o f judicial proceedings.” I d. (alteration in original) (citations omitted) (internal quotation marks omitted). An offense qualifies a s a felony where the maximum term of imprisonment authorized exceeds o ne year. 18 U.S.C. § 3 559(a). Pursuant to § 8 44(a), a person

convict e d o f s i m p l e p o ssession of a controlled substance commits a misdemeanor,
p u n i shable by not m ore than one year’s imprisonment. Where a defendant commits the offense for which he is charged after committing at least o ne prior conviction for any drug, narcotic, or chemical offense, th e m aximum penalty increases to two years for o ne prior offens e a n d t o t h ree years for two prior offenses. 18 U

. S

. C

. § 8 44(a). Therefore, a conviction f or simple possession of methamphetamine by s omeone who committed a prior drug o ffense qualifies as

a felony. T h e prior c onvictions need not be charged in a grand jury indictment

or proved to a jury. See 21 U.S.C. § 851. They ne e d o n ly be identified in an “information” document filed in the court by the Government and which states in writing the previous convictions on which the Government intends to rely. I d. Where, a s i n the present case, the d e fendant denies the prior convictions, the

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court must hold ahearing to determine if the defendant m ay b e held li able for the increased punishment, but the hearing “shall be before the c ourt without a jury and either party may introduce evidence.” Id. § 851(c)(1). The United States Attorney bears th e burden o f proof beyond a reasonable doubt as to any issue of fact. Id. In the presen t c a s e , the district court held a hearing after McAtee denied that he was the person convi cted of the two drug offenses listed in the Government’s Information of Prior Convic t i o ns, considered the evidence presented at the hearing, and found that the Government had met its burden in proving that McAtee was the person who had been convicted of the t w o prior drug offenses. McAtee does not challenge the district court’s finding. Rather, h eargues that §§ 844 and 851 are unconstitutional because they do not require the fact of the prior convictions t o be proved beyond a reasonable doubt by the jury where the prior convictions transform a misdemeanor offense into a felony offense. In Almendarez-Torres v. United States , 523 U.S

. 2 2 4 ( 1998), the S upreme Court held that a prior convi c t i o n i s not an offense element that needs to be proved beyond reasonable doubt, even where it r aises the statutory maximum penalty from that of the base felony offense. I n Apprendi , the Supreme Court reaffirmed Almenda rez-Torres by carving out an exception for prior convictions in its otherwise blanket rule that “[o] ther than the f act of a prior conviction , any fact that i ncreases the penalty for a crime beyond the prescribed s tatutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490 (emphasis added). McAtee could cite no post-Apprendi case in which this C ourt held that the
p rior - c o nviction exception does not apply where a prior conviction tr an s f o r m s th e charged offens e from a misdemeanor into a felony. 1 “We ordinarily do not find

1 M cAtee cited our op inion in U ni ted Sta tes v . D i esch , 20 F. 3d 139, 144 ( 5th C ir. 1994) , a p re-A p p rendi d ecis ion that conclud ed that the id entity of a controlled s ubs tance need ed to 12 Case: 12-40065 Document: 00512334289 Page: 12 Date Filed: 08/07/2013No. 12-40065

plain error when w e h av e n ot previously addressed an issue.” U nited States v. Evans , 587 F.3d 667, 671 ( 5th Cir. 2009) (citation omitted) (internal quotation marks omitted). Moreover, the language of Apprendi is unequivocal in creating

a prior-convi c t i on e xception to the rule that otherwise r equires a fact that increases the st a t u t o r y maximum to be proved to a jury beyond reasonable doubt. See Apprendi , 530 U .S. at 4 90. Therefore, M cAtee can s how no e rror that is clear or obvious in his conviction or sentence. CONCLUSION The district court’s admission of eviden c e related to the untested pipe found in McAtee’s rental c ar was harmless error because there was sufficient other evidence upon which a rational finder of fact could base its conclusion that McAtee k nowingly possessed 0.52 of a gram of methamphetamine. McAtee did not show, on plain error review, that §§ 844(a) and 8 51 are unconstitutional under A pprendi

. We therefore AFFIRM McAtee’s conviction and sentence.

be alleged in an ind ictm ent and p roved to a jury beyond reas onable d oubt, in p art becaus e the id entity of the controlled s ubs tance trans form ed the sim p le p os s es s ion of f ens e f rom a m is dem eanor into a f

elony. I n reaching this outcom e, w e exp lained that “w here an of f ens e that is otherw is e a m is d em eanor becom es a f elony if c o m m itted in a certain w ay or w ith certain cons equences , the p articular attribute that m ak e s it a f elony is an elem ent of the of f ens e, w hich m us t b e alleged in the ind ictm ent and proved at trial. ” Id. (citing Pa cknett v . U ni ted Sta tes , 503 F. 2d 949, 950 ( 5th Cir. 1974) , Theri a ul t v . U ni ted Sta te s , 434 F. 2d 212, 214 ( 5th Cir. 1970) , Ca rtw right v . Uni t ed Sta tes , 146 F. 2d 13 3 , 1 35 (5th Cir. 1944) , U ni t ed Sta tes v . Sca nzel lo , 832 F. 2d 18, 23 ( 3d C ir. 1987) , U ni t ed St a tes v . A l beri co , 604 F. 2d 1215, 1231 ( 10th Cir. 1979) )

. M cAtee als o cited a N i n t h C i r cuit op inion, w hich conclud ed that w here a p rior of f ens e trans form s the d ef end ant’s current of

f ens e f rom a m is d em e a n o r to a f elony, A l m enda rez -Torres d oes not ap p ly. U ni ted Sta tes v . Rodriguez
- G onza les , 358 F. 3d 1156 ( 9th Cir. 2004)

. H ow ever, D iesch w as d ecid ed bef ore the Sup rem e Court in A p prendi unequivocally carved out the p rior- conviction excep tion, and und er p lain error review , Rodriguez
- G onza lez alone cannot es tablis h error that is clear or obvious

. See U ni ted Sta tes v . Ev a ns , 587 F. 3d 667, 671 ( 5th Cir. 2009) (noting that there ord inarily can be no p lain error where no Fif th Circuit p reced ent has ad dres s ed the is s ue)

. Thes e cas es theref ore cannot s up p ort McAtee’s as s ertion that t h e d i s t rict court p lainly erred in ap p lying the p rior- conviction enhancem ent to his s entence. 13 Case: 12-40065 Document: 00512334289 Page: 13 Date Filed: 08/07/2013