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

                                                                   FILED
                                                                November 21, 2007
                                No. 06-11059
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

LEATRICE ROBERTS, JR

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 7:06-CR-2-ALL


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Leatrice Roberts, Jr., pleaded guilty to an indictment charging him with
being a felon in possession of a firearm. The district court sentenced Roberts to
115 months of imprisonment. For the first time on appeal, Roberts argues that
because he neither pleaded guilty nor was convicted by a jury he stands
“unconvicted” and his sentence must be vacated. Roberts’s argument is based
on the plea colloquy wherein the magistrate judge asked “Mr. Roberts, having



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-11059

heard all of the foregoing how do you plead to Count 1 of the indictment?”
Roberts responded “Yes, sir.”
      Roberts failed to raise this argument in the district court. Accordingly, the
plain error standard of FED. R. CRIM. P. 52(b) is applicable. See United States v.
Reyna, 358 F.3d 344, 348-50 (5th Cir. 2004) (en banc) (defendant denied right to
allocution) (citing United States v. Vonn, 535 U.S. 55, 65 (2002) (district court
failed to address defendant personally when taking guilty plea; applying
Rule 52(b)). Although he did not utter the word “guilty,” Roberts clearly used
language expressive of his culpability.        See United States v. Williams,
20 F.3d 125, 134 (5th Cir. 1994) (this court does not “require such a talismanic
incantation, so long as the language used is expressive of the defendant’s
culpability”). Moreover, Roberts has never alleged that he did not knowingly
and voluntarily intend to enter a guilty plea in the instant case. He thus fails
to show prejudice affecting his substantial rights.        See United States v.
Luna-Orozco, 321 F.3d 857, 860 (9th Cir. 2003).
      Roberts also argues that the district court plainly erred in concluding that
his 1992 Texas conviction for delivery of a controlled substance was a prior
controlled substance offense under U.S.S.G. § 2K2.1(a)(4)(A). His argument is
reviewed for plain error. See United States v. Gonzales, 484 F.3d 712, 714
(5th Cir.), cert. denied, 127 S. Ct. 3031 (2007).
      The Government concedes that an offense under Tex. Health and Safety
Code Ann. § 481.112 may not automatically be classified as a controlled
substance offense for guidelines purposes. See Gonzales, 484 F.3d at 712. The
Government correctly argues, however, that it is permissible to look to Roberts’s
indictment in order to evaluate whether the prior offense qualifies as a
controlled substance offense.        See United States v. Morales-Martinez,
496 F.3d 356, 358 (5th Cir. 2007).
      The 1992 indictment charged Roberts with actual and/or constructive
transfer and delivery of cocaine to Marian Elkins. Roberts concedes that the

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indictment narrows his prior conviction “down to” actual or constructive
transfer. He argues, however, that this court has never held that an actual or
constructive transfer of a controlled substance is a controlled substance offense
under the Guidelines. The actual or constructive transfer of a controlled
substance is rationally understood to be distribution, which is specifically
included in the definition of a controlled substance offense set forth in § 4B1.2.
Roberts presents no authority which suggests otherwise.
      Roberts next argues that the term “distribution” is undefined in
U.S.S.G. § 4B1.2(b) and that the Texas offense of constructive transfer of a
controlled substance criminalizes conduct that lies outside of the generic
definition of distribution. He argues that under Texas law, a constructive
transfer includes situations in which the transferor does not manually transfer
the contraband to the transferee, including situations involving an intermediary
and situations in which no actual delivery is completed. He also argues that
under Texas law, a constructive transfer can be accomplished by the
administration of a drug to a patient.
      Roberts’s argument fails, however, because the indictment in his case
clearly identifies a transferor, a transferee, an illegal drug, and a completed
transaction. There is no allegation of an intermediary or an uncompleted
transaction. Further, the wording of the indictment leaves no possibility that
Roberts was administering a drug. The indictment thus supports the district
court’s finding that his prior offense was a controlled substance offense under
§ 2K2.1(a)(4)(A). No plain error is shown. See Gonzales, 484 F.3d at 714.
      Roberts also asserts that his 115-month sentence is unreasonable. This
court has held that a sentence within a properly calculated guideline range
should be afforded a rebuttable presumption of reasonableness, and the




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Supreme Court has upheld the use of this presumption.1 Rita v. United States,
127 S. Ct. 2456, 2463-68 (2007); United States v. Alonzo, 435 F.3d 551, 553-54
(5th Cir. 2006).
      It is apparent by the district court’s consideration of the information in
support of the downward-departure motion that the court gave due attention to
Roberts’s medical condition. Further, the district court was not bound by either
Roberts’s own self-serving assessment of the offense, or the compunction of the
victim.
      AFFIRMED.




      1
       Although he recognizes the binding nature of this precedent, Roberts
maintains that the presumption of reasonableness violates the Sixth
Amendment. Blue brief, 31 n.1; grey brief, 18. He does so in order to preserve
his argument for further review. Id.

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