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

                                                FILED
                                                                November 25, 2009
                               No. 09-10238
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

MALIK IDIS HOUSTON,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:08-CR-209-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Malik Idis Houston appeals from his conviction of conspiracy and using,
carrying, and brandishing a firearm. He contends that he was deprived of his
right to indictment by a grand jury because the elemental facts required to
support a conviction based on the actions of a coconspirator, pursuant to
Pinkerton v. United States, 328 U.S. 640 (1946), were not presented to a grand




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                No. 09-10238

jury and included in the superseding indictment. The Government moves for
dismissal of Houston’s appeal or for summary affirmance.
      Houston’s contention is foreclosed. See United States v. Creech, 408 F.3d
264, 273 (5th Cir. 2005).
      AFFIRMED. MOTION FOR DISMISSAL OR SUMMARY AFFIRMANCE
DENIED.




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