     Case: 11-10717     Document: 00511838948         Page: 1     Date Filed: 04/30/2012




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

                                                                            FILED
                                                                           April 30, 2012
                                     No. 11-10717
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JESSICA MOORE MCCOOL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-21-2


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Jessica Moore McCool pleaded guilty to possession with intent to
distribute methamphetamine. The district court sentenced McCool to 96 months
of imprisonment and a three-year term of supervised release. McCool filed a
timely notice of appeal.
        Included in the drug quantity used to calculate McCool’s advisory
guidelines sentencing range was 226.8 grams of methamphetamine that McCool
delivered for a co-defendant. In the district court, McCool argued against the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10717      Document: 00511838948     Page: 2   Date Filed: 04/30/2012

                                    No. 11-10717

inclusion of this drug amount, contending that she was the first to give the
Government the information about this drug quantity and that it should
therefore be excluded under U.S.S.G. § 1B1.8. McCool asserted, however, that
her argument was foreclosed by this court’s decision in United States v. Gibson,
48 F.3d 876 (5th Cir. 1995), and the drug quantity was included by the district
court.
         In her opening brief, McCool asserts that the district court’s reliance on
Gibson in using the information regarding the 226.8 grams of methamphetamine
was error because the facts of her case are distinguishable from those presented
in Gibson. The Government contends that review should be only for manifest
injustice because McCool invited any error committed by the district court. In
reply, McCool argues emphatically that the district court committed no error in
overruling her objection in light of this court’s holding in Gibson. Instead, she
argues that the holding of Gibson has been expanded to cover factual scenarios
not presented in Gibson, and she invites this court to reconsider, interpret, and
revise the Gibson decision.
         One panel of this court may not overrule the decision of a prior panel in
the absence of en banc consideration or a superseding Supreme Court decision.
United States v. Jasso, 587 F.3d 706, 709 n.3 (5th Cir. 2009). In light of McCool’s
position that the district court committed no error here, the sentence imposed
by the district court is AFFIRMED.




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