     Case: 19-60597      Document: 00515478268         Page: 1    Date Filed: 07/06/2020




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

                                                                               FILED
                                    No. 19-60597                            July 6, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERIN WOODS, also known as Erin Graham,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:17-CR-118-2


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Erin Woods appeals her conviction and sentence
for being an unlawful user of a controlled substance in possession of a firearm.
She contends that (1) she is actually innocent of the crime for which she was
sentenced, (2) her guilty plea was not knowing or voluntary, and (3) the factual
basis of her plea was insufficient in light of Rehaif v. United States, 139 S. Ct.
2191 (2019). She also raises challenges to the calculation of her sentence.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 19-60597

      Because Woods failed to challenge her conviction in the district court,
her arguments are subject to plain error review. See Puckett v. United States,
556 U.S. 129, 135 (2009). To prove plain error, Woods must show a forfeited
error that is clear or obvious and that affects her substantial rights. See id. If
she makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Any suggestion that the indictment was defective because it failed to
charge the offense for which she was sentenced was waived by Woods’s guilty
plea. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973); Smith v. Estelle,
711 F.2d 677, 682 (5th Cir. 1983). Woods’s contentions that the statute of
conviction is ambiguous and that the rule of lenity should apply in this case is
unavailing. The term “unlawful user” of a controlled substance is susceptible
of interpretation through the traditional canons of statutory construction and,
therefore, not grievously ambiguous. See United States v. Castleman, 572 U.S.
157 (2014). This court has defined “unlawful user” as a person whose drug
usage occurred “with regularity and over an extended period time.” United
States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006) (internal quotation marks
and citation omitted); United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir.
2002) (en banc). As such, Woods’s due process rights were not implicated by
any ambiguity in the statute. See United States v. Rivera, 265 F.3d 310, 312
(5th Cir. 2001).
      Woods’s claims of Rehaif error during her Federal Rule of Criminal
Procedure 11 plea colloquy and with respect to the sufficiency of the factual
basis to which she agreed both fail because the record provides ample support
for the inference that, at the time she possessed the firearms, Woods knew that
she used controlled substances regularly and over an extended period of time.



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                                  No. 19-60597

See United States v. Hicks, 958 F.3d 399, 401-02 (5th Cir. 2020); Herrera, 313
F.3d at 884-85. The inference of Woods’s knowledge of her use of controlled
substances regularly and over an extended period of time is compelling even in
light of the evidence of Woods’s history of mental illness. Given the favorable
nature of her plea agreement and the ample support in the record of Woods’s
knowledge of her status as an unlawful user of a controlled substance, any
error in not advising her of the knowledge of status element of the offense did
not affect her substantial rights. See Hicks, 958 F.3d at 402. Moreover, because
the record supports the inference that Woods knew that she was an unlawful
user of a controlled substance, any error would not affect the fairness,
integrity, or public reputation of judicial proceedings. See id.
      In attacking the sufficiency of the factual basis, Woods also contends that
her counsel was ineffective for failing to correctly advise her regarding the
definition of “unlawful user.” This court generally does not consider claims of
ineffective assistance of counsel on direct appeal “unless they were previously
presented to the trial court.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir.
2014). Because Woods’s ineffective assistance of counsel claim was not
sufficiently developed in the district court, and this is not one of the rare cases
in which the record provides enough detail to allow this court to determine the
merits of her claim, we decline to consider her claim without prejudice to her
right to raise the issue in a 28 U.S.C. § 2255 motion. See id.
      As part of her plea agreement, Woods waived her right to appeal her
conviction and sentence on both direct appeal and collateral review, except for
her right to bring a claim of ineffective assistance of counsel. The record reflects
that Woods’s waiver of appeal was knowing and voluntary. See United States
v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). Her challenges to the calculation
of her sentence are therefore barred by her appeal waiver.



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                          No. 19-60597

 The judgment of the district court is AFFIRMED.




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