No. 09-10238 Summary Calendar.
November 25, 2009.
Susan B. Cowger, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.
Douglas A. Morris, Federal Public Defender's Office, Dallas, TX, for 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.
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, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), were not presented to a grand 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.