United States v. Herring

*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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50204
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMAAL ISAAC HERRING,
Defendant-Appellant.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. A-00-CR-105-ALL-SS)
_______________________________________________________
September 12, 2001
Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges.
PER CURIAM:*
There has been understandable confusion in the past about whether “controlled
substance offense” under Section 2K2.1(a)(2) of the guidelines included a conviction for
mere possession of a controlled substance. The law is clear that a crime of violence or

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controlled substance offense “does not include simple possession.” United States v.
Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992). Sec. 4B1.2(2).
The PSR erred in the recommendation to this effect, and no objection was made by
the defendant. The sentence was therefore the consequence of a mistake.
The sentence is vacated and the cause remanded for resentencing.

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