     Case: 09-50572 Document: 00511419207 Page: 1 Date Filed: 03/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 22, 2011
                                     No. 09-50572
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES WALTER LEE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                      USDC Nos. 7:08-CV-76 & 7:07-CR-175-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Walter Lee, federal prisoner # 79365-180, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion challenging his sentence for
possession with intent to distribute more than five grams of crack cocaine. Lee
argued in his § 2255 motion that, inter alia, his trial counsel was ineffective for
failing to object to the presentence report’s (PSR’s) determination that he was
a career offender under U.S.S.G. § 4B1.1 because his prior “delivery of a
controlled substance” convictions did not qualify as controlled substance offenses

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-50572 Document: 00511419207 Page: 2 Date Filed: 03/22/2011

                                  No. 09-50572

as defined in § 4B1.2(b) that merited the § 4B1.1 enhancement. In denying the
motion, the district court determined that Lee previously had been convicted in
Texas of “possession of a controlled substance with intent to deliver” and that
those convictions qualified as controlled substance offenses. This court granted
Lee a COA on the issue whether his counsel was ineffective for failing to object
to the § 4B1.1 enhancement.
      This court reviews the district court’s factual findings underlying the
denial of a § 2255 motion for clear error and its conclusions of law de novo.
United States v. Stricklin, 290 F.3d 748, 750 (5th Cir. 2002). The district court
has not committed clear error if its finding is “plausible in light of the record as
a whole.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      The appellate record does not support the district court’s determination
that Lee was convicted in the past of possession of a controlled substance with
intent to distribute.   Accordingly, the district court’s factual finding is not
plausible in light of the record as a whole, and thus the district court committed
clear error in making this finding. See Cisneros-Gutierrez, 517 F.3d at 764;
Stricklin, 290 F.3d at 750. As a result, the district court also erred in
determining that because the law was settled that a conviction of possession of
a controlled substance with intent to distribute constituted a controlled
substance offense, any objection by counsel concerning the issue would have
been futile, and thus Lee’s counsel was not ineffective for failing to object. See
Cisneros-Gutierrez, 517 F.3d at 764; Stricklin, 290 F.3d at 750.
      As to Lee’s prior convictions of possession of a controlled substance, the
definition of “controlled substance offense” does not include mere possession of
a controlled substance, and thus these convictions cannot support a career
offender enhancement. See §§ 4B1.1(a), 4B1.2(b). Additionally, Lee’s prior
convictions for delivery of a controlled substance under Texas Health and Safety
Code Annotated § 481.112 did not constitute controlled substance offenses as
defined in § 4B1.2(b) because the term “delivery” in § 481.112 included mere

                                         2
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                                  No. 09-50572

offers to sell, which were not included in the § 4B1.2(b) definition. See United
States v. Price, 516 F.3d 285, 287-90 (5th Cir. 2008); United States v. Gonzales,
484 F.3d 712, 714-16 (5th Cir. 2007). Although the district court may use a
categorical approach to determine whether the charging documents and jury
instructions show that the prior convictions meet the definition of a controlled
substance offense, the record contains no indication that the district court used
such documents at the time of sentencing.
      As to counsel’s ineffectiveness for failing to object concerning this issue,
the record indicates that no written objections were filed on this point and that
the district court adopted the PSR without change in imposing Lee’s sentence.
The Government argues that the sentencing transcript is not included in the
appellate record, and thus it is not clear from the record whether counsel orally
objected at sentencing. However, the minutes from the sentencing contain a box
for “objections to pre-sentence report heard” that is not checked, although other
boxes are checked. Thus, we conclude that the record presented contradicts an
argument that counsel orally objected at sentencing. The appellant generally
bears the burden of creating the record on appeal, United States v. Coveney, 995
F.2d 578, 587 (5th Cir. 1993); see F ED. R. A PP. P. 11(a), 10(b), and we conclude
that Lee has provided a sufficient record, under the circumstances of this case,
to support a remand of the case to the district court for further proceedings in
accordance with this opinion. See Coveney, 995 F.2d at 587.
      JUDGMENT VACATED. REMANDED.




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