
    UNITED STATES of America, Plaintiff-Appellee v. Malik Idis HOUSTON, Defendant-Appellant.
    No. 09-10238
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Nov. 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.
    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, 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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     