     Case: 11-41004      Document: 00512455117         Page: 1    Date Filed: 11/27/2013




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


                                      No. 11-41004                            FILED
                                                                      November 27, 2013
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA                                                      Clerk

                                                 Plaintiff-Appellee
v.

MACK COOPER

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:11-CV-105


Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Pursuant to our grant of a certificate of appealability, Mack Cooper,
federal prisoner # 06301-078, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct the sentence on his
claim that there was not a sufficient factual basis to support his plea. For the
following reasons, we AFFIRM the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 11-41004     Document: 00512455117     Page: 2    Date Filed: 11/27/2013



                                  No. 11-41004
      Cooper was indicted and proceeded to trial on two counts of possession
with intent to distribute and distribution of more than five grams of crack
cocaine. Before the jury reached a verdict, Cooper waived his right to be
charged by indictment and agreed to plead guilty to a one-count information
charging him with maintaining a place for the purpose of distributing more
than five grams of crack cocaine, in violation of 21 U.S.C. § 856(a)(1) (“drug
house charge”). He was sentenced to 130 months imprisonment.
      Cooper attempted to appeal, but the Government moved to enforce the
waiver of appeal provision of his plea agreement. This court granted the
motion and dismissed Cooper’s appeal. Cooper did not petition for a writ of
certiorari.
      Cooper then moved for relief under 28 U.S.C. § 2255, contending, inter
alia, that there was no factual basis to support his guilty plea. The district
court denied the motion without explicitly addressing the factual basis
argument. At the plea hearing, the district court relied on Cooper’s trial
testimony and DVD evidence in the record to establish a factual basis for the
plea, but the district court did not order the trial transcribed.
      This court granted Cooper a certificate of appealability (“COA”) on the
issue whether there was a sufficient factual basis to support his plea. In the
COA order, this court explained that the trial testimony was not transcribed
and that it was not clear from the record whether Cooper’s conduct satisfied
the statutory requirement of maintaining the residence in question for the
purpose of dealing in crack cocaine. Subsequently, the Government ordered
and filed a transcript in the district court. This court treated the Government’s
motion as one to supplement the record on appeal. Thus, in determining
whether there was a sufficient factual basis to support Cooper’s plea, we have
independently evaluated the record in light of the district court’s subsidiary
findings.
                                        2
    Case: 11-41004     Document: 00512455117       Page: 3   Date Filed: 11/27/2013



                                   No. 11-41004
      The Government’s brief advises plain error review of the issue whether
there is any factual basis for Cooper’s guilty plea under 21 U.S.C. § 856(a)(1),
i.e. for his “intentionally and knowingly” “maintaining” a place “for the
purpose” of distributing a controlled substance. 21 U.S.C. § 856(a)(1); see, e.g.,
United States v. Roberts, 913 F.2d 211, 219 (5th Cir. 1990). Cooper’s brief
treats this issue as if it were raised on direct appeal, where findings of fact are
reviewed for clear error and legal conclusions de novo. Both parties are wrong.
In considering this Section 2255 habeas petition, which raises an issue Cooper
did not preserve at the plea hearing or on direct appeal, considerations of
finality are particularly pressing. As the Supreme Court holds, “[h]abeas
review is an extraordinary remedy and ‘will not be allowed to do service for an
appeal.’” United States v. Bousley, 523 U.S. 614, 622, 118 S. Ct. 1604, 1610
(1998) (internal citations omitted). Consequently, “[w]here a defendant has
procedurally defaulted a claim by failing to raise it on direct review, the claim
may be raised in habeas only if the defendant can first demonstrate either
‘cause’ and actual ‘prejudice,’ . . . or that he is ‘actually innocent.’” Id. at 622,
citing, inter alia, Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 2643
(1986) See also United States v. Sorrells, 145 F.3d 744, 749 (5th Cir. 1998).
      We apply the Bousley standard in this appeal. Cooper has not attempted
to show “cause” for his failure to raise the sufficiency of the factual basis on
direct appeal (and we pretermit whether that issue was waived by the waiver
of appellate rights). He must therefore attempt to show that he was “actually
innocent” of the crime, which would mean that there was no basis for the trial
court’s finding at the guilty plea hearing that he violated § 856(a)(1). Given
the benefit of the trial transcript and the videos of the drug deals in which
Cooper participated, we reject this contention. The information alleged that
Cooper “[o]n or about September 4, 2007, . . . knowingly and intentionally
maintained a place at 806 Hosea Dolphus, Lufkin, Texas, for the purpose of
                                         3
    Case: 11-41004    Document: 00512455117     Page: 4   Date Filed: 11/27/2013



                                 No. 11-41004
distributing more than five grams of cocaine base.” To sustain a conviction
under § 856(a)(1), the Government must prove that the defendant
(1) intentionally and knowingly (2) opened, leased, rented, used or maintained
a place (3) for the purpose of using, manufacturing, or distributing a controlled
substance. See United States v. Roberts, supra.
      The record shows that Cooper maintained 806 Hosea Dolphus, the house
identified by the Government as a “drug house.” “Where the evidence shows
that over a period of time the defendant can direct the activities of and the
people in a place, the jury may infer that he is involved in maintaining the
place.”   United States v. Morgan, 117 F.3d 849, 858 (5th Cir. 1997).
Supervisory control over the premises may satisfy the maintenance element of
the statute. United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997). The
testimony at trial indicated that a confidential informant (“CI”) informed the
authorities that he could perform drug deals with Cooper that would be
completed at 806 Hosea Dolphus. Police surveillance videos showed, on one
occasion, Cooper sitting on the porch at 806 Hosea Dolphus, walking into the
residence with cash, coming out of the residence and speaking with the CI who
left shortly thereafter.   On another occasion, surveillance videos showed
Cooper walking up to the CI’s car outside the house, the two men discussing a
drug transaction, the CI handing money to Cooper, and indicated Cooper was
holding crack cocaine.     On each occasion, the CI returned to the law
enforcement rendezvous point with crack cocaine and had none beforehand.
The trial record strongly suggests Cooper lived at the house, or at least that it
was his place for drug dealing. These facts support a finding that Cooper
exercised sufficient dominion and control to have maintained the house within
the scope of § 856(a)(1). See Soto-Silva, 129 F.3d at 346; Morgan, 117 F.3d at
856-57.


                                       4
    Case: 11-41004    Document: 00512455117    Page: 5   Date Filed: 11/27/2013



                                No. 11-41004
      The record also shows that Cooper used 806 Hosea Dolphus for the
purpose of distributing crack cocaine.      To support a conviction under
§ 856(a)(1), the purpose to distribute drugs must be the defendant’s; it is not
enough that the defendant maintains the premises so that others may engage
in distribution. Soto-Silva, 129 F.3d at 346. As noted, the surveillance videos
indicated that Cooper handed crack cocaine to the CI in exchange for cash at
806 Hosea Dolphus. Cooper therefore shared the purpose of selling crack
cocaine at 806 Hosea Dolphus.
      Accordingly, there was a factual basis to support Cooper’s plea, and he
has not shown that he was “actually innocent” of the crime.
      The judgment denying Cooper’s § 2255 motion is AFFIRMED.




                                      5
