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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20045
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY LAMONT MCDONALD,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
February 12, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Tracy Lamont McDonald ("McDonald") appeals from his conviction and sentence for one
count of possession with intent to distribute five or more grams of cocaine base and one count of
distribution of five or more grams of cocaine base, in violation of 21 U.S.C. 壯 841(a)(1) &
(b)(1)(B)(iii). The district court sentenced McDonald to concurrent 120-month terms of
imprisonment and concurrent eight-year t erms of supervised release. Because we find that the
possession and distribution charges merged into a single offense, we reverse and remand to the
district court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY
On December 1, 1998, undercover Houston police officers and a confidential informant met
with McDonald to arrange the purchase of crack cocaine from him. They then drove across town
where McDonald confirmed the purchase and agreed to sell the crack cocaine for $300. McDonald
subsequently walked to an unknown residence in the 5400 block of Bataan Street (the "Bataan street
residence") and thereafter returned to the car with approximately 12 grams of crack cocaine in his
left hand that he delivered to the undercover officers.
McDonald was arrested and charged in a two-count indictment with possession with intent
to distribute in excess of five grams of crack cocaine (Count 1) and distribution of more than five
grams of crack cocaine (Count 2). He subsequently pleaded guilty to both counts, and the district
court sentenced him to 120 months' imprisonment on each count with the sentences to run
concurrently. McDonald now appeals the conviction and sentence.
DISCUSSION
McDonald raises as the sole issue on appeal that the district court erred in convicting and
sentencing him for both possession with intent to distribute crack cocaine and distribution of crack
cocaine instead of merging the possession offense into the distribution offense. Although the district
court imposed concurrent terms of imprisonment, both convictions carried a mandatory special
assessment of $100, making the punishment on the two counts cumulative. See Rutledge v. United
States, 517 U.S. 292, 301-03 (1996). Although McDonald did not raise this challenge in the district
court, the government concedes that McDonald may raise the issue for the first time on appeal
because 18 U.S.C. � 3013 required the district court to impose the mandatory assessment on each
count. See id.
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McDonald argues that both counts should be merged, in accordance with United States v.
Hernandez, 591 F. 2d 1019, 1022 (5th Cir. 1979) (en banc) (merging into a single offense the
defendant's possession with intent to distribute offense and his distribution offense because "there
was no evidence of [the defendant's] possession of a controlled substance with intent to distribute
it apart from the evidence of the actual sale. When the intent to distribute was executed by a
successful sale, the possession with intent to do so merged into the completed offense.") (citing
United States v. Curry, 512 F. 2d 1299, 1306 (4th Cir. 1975)); see also United States v. Scott, 987
F. 2d 261, 266 (5th Cir. 1993) (stating that "[a] single drug sale cannot support a conviction for
possession with intent to distribute, as well as a conviction for distribution"). In contrast, the
government argues that the possession and distribution counts should not be merged into a single
offense because the instant case's facts are indistinguishable from those of United States v. Foundas,
610 F. 2d 298, 302 (5th Cir. 1980) (holding that the possession charge was separate from the
distribution charge because the defendant "admitted telling the DEA officer that she had cocaine; she
disappeared at one point to get it; and she produced cocaine from her purse at the appropriate
moment"). In particular, the government asserts that McDonald's return from the Bataan street
residence holding the crack cocaine in his left hand constitutes evidence of an act of possession
separate from the act of distribution.
A review of the record, however, indicates, that this case is indistinguishable from Hernandez.
Unlike in Foundas, where there was clear evidence to indicate that the defendant had a reserve supply
of drugs from which she could make an additional drug transaction with undercover agents and that
she left the agents for a period of time in order to receive the drugs from a hiding place, there is no
such evidence here. For instance, there is no evidence to show that McDonald retrieved the crack
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cocaine from the Bataan street residence or purchased it from someone there. As McDonald argues,
that he returned from the residence with the crack cocaine in his left hand may simply indicate that
he took the cocaine out of his pocket after he decided that it was safe for him to complete the drug
deal. Thus, as in Hernandez, the intent to distribute the crack cocaine, as well as McDonald's
possession with intent to distribute the cocaine, was achieved by the sale of it to the undercover
officers. See Hernandez, 591 F. 2d at 1022.
CONCLUSION
Because we find that the possession and distribution charges merge into a single offense, we
REVERSE and REMAND to the district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
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