     Case: 11-10346     Document: 00511830951         Page: 1     Date Filed: 04/23/2012




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

                                                                            FILED
                                                                           April 23, 2012
                                     No. 11-10346
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DETRIC LEWIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-40-3


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Detric Lewis appeals his 188-month sentence following his guilty-plea
conviction for conspiracy to distribute a controlled substance. He argues for the
first time on appeal that counsel was ineffective for failing to challenge the
finding that his prior Texas drug offense was a qualifying offense for the purpose
of the career-offender enhancement under U.S.S.G. § 4B1.1. We may review this
newly raised claim on direct appeal because counsel had no legal basis on which



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10346    Document: 00511830951      Page: 2   Date Filed: 04/23/2012

                                  No. 11-10346

to object to the enhancement. See United States v. Villegas-Rodriguez, 171 F.3d
224, 230 (5th Cir. 1999).
      To establish ineffective assistance of counsel, a defendant must show both
that counsel’s performance was deficient in that it fell below an objective
standard of reasonableness and that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984). Failure to
establish either deficient performance or prejudice defeats the ineffective-counsel
claim. Id. at 697.
      The Guidelines provide for an enhancement of the offense level and
criminal history category if the defendant is determined to be a career offender.
U.S.S.G. § 4B1.1. “A defendant is a career offender if . . . . [inter alia] the
defendant has at least two prior felony convictions of either a crime of violence
or a controlled substance offense.” § 4B1.1(a).
      Lewis does not dispute that he judicially confessed to the Texas offense of
possession with intent to deliver a controlled substance. In United States v.
Ford, 509 F.3d 714, 716-17 (5th Cir. 2007), we held that the Texas offense of
“possession with intent to deliver” qualifies as a “controlled substance offense”
under U.S.S.G. § 2K2.1. That Guideline defines “controlled substance offense”
by cross-reference to the career offense guidelines. As counsel had no legal basis
on which to object to the enhancement, his failure to do so does not constitute
ineffective assistance of counsel. See Villegas-Rodriguez, 171 F.3d at 230.
      Accordingly, the judgment of the district court is AFFIRMED.            The
Government’s motion for dismissal is therefore DENIED as unnecessary.




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