     Case: 11-40263     Document: 00511662199         Page: 1     Date Filed: 11/10/2011




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

                                                                            FILED
                                                                        November 10, 2011
                                     No. 11-40263
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAMES ALVIN GODFREY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Eastern District of Texas
                             USDC No. 1:09-CR-158-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        James Alvin Godfrey pleaded guilty to one count of possession with intent
to distribute cocaine and received a within-guidelines sentence of 210 months in
prison. On appeal, he asserts that the district court should not have attributed
383.8 grams of crack cocaine to him as relevant conduct under U.S.S.G. § 2D1.1.
Godfrey asserts that he has consistently denied any knowledge of crack cocaine
and that the Government failed to present sufficient evidence connecting him to
those drugs.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40263   Document: 00511662199      Page: 2   Date Filed: 11/10/2011

                                  No. 11-40263

      The Government moves for summary affirmance, asserting that the drug
quantity had no effect on the applicable guidelines range. In the alternative, the
Government seeks an extension of time to file an appellate brief.
      Because the Government has failed to point to controlling authority from
this circuit or the Supreme Court that forecloses Godfrey’s claim, summary
affirmance is inappropriate.      Thus, the Government’s motion is denied.
However, as the Government notes, the appellate argument is without merit.
Godfrey’s sentence was not determined based on the drug quantity calculation.
Instead, his sentence was determined based on his status as a career offender
pursuant to U.S.S.G. § 4B1.1. The argument concerning relevant conduct is
irrelevant based on the facts of this case. Accordingly, we deny as unnecessary
the Government’s motion for an extension of time to file an appellate brief and
affirm the judgment of the district court.
      AFFIRMED; MOTIONS DENIED.




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