UNITED STATES of America, Plaintiff-Appellee v. Thomas EDDINS, Defendant-Appellant.
No. 10-11225
United States Court of Appeals, Fifth Circuit.
Nov. 21, 2011.
450 Fed. Appx. 395
Summary Calendar.
After Pearson was resentenced following remand pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Guidelines were amended to decrease by two levels the base offense levels for crack cocaine offenses such as Pearson‘s. See U.S.S.G. Supp. to App‘x C, Amends. 706, 711; United States v. Burns, 526 F.3d 852, 861 (5th Cir.2008). The Guidelines policy statement provides, however, that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to
Post-Booker, this court recognizes three types of sentences: (1) sentences within a properly calculated guidelines range; (2) sentences that an include an upward or downward departure as allowed by the Guidelines; and (3) non-guidelines sentences that are either higher or lower than the relevant guidelines sentence. United States v. Smith, 440 F.3d 704, 706-07 (5th Cir.2006). Pearson‘s argument that his 188-month sentence of imprisonment was a guidelines sentence and not the result of a departure is unavailing. When resentencing Pearson on remand, the district court declined to alter Pearson‘s offense level, and instead selected a guidelines range of imprisonment it deemed appropriate. The district court made no reference to the Guidelines’ provisions for departure. As such, it imposed a non-guidelines sentence. See United States v. Armendariz, 451 F.3d 352, 358 n. 5 (5th Cir.2006) (treating downward deviation as a non-guidelines sentence because the district court made no reference to departing from the Guidelines or to the Guidelines’ provisions for departure); Smith, 440 F.3d at 707-08 & 708 n. 3 (district court properly imposed non-guidelines sentence when it calculated defendant‘s guidelines range of imprisonment, used that range as a reference, and made an upward deviation without making an upward departure within the Guidelines).
Because Pearson‘s original sentence was a non-guidelines sentence, imposed after a Booker remand, under the Guidelines policy statement no further reduction was warranted. See Gonzalez-Balderas, 105 F.3d at 982;
AFFIRMED.
Thomas Warren Lively, Esq., Dallas, TX, for Defendant-Appellant.
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas Eddins pleaded guilty to one count of being a felon in a possession of a firearm pursuant to
We review the interpretation of a sentence enhancement provision de novo. United States v. Montgomery, 402 F.3d 482, 485 (5th Cir.2005). Pursuant to Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), generic burglary, which is a listed ACCA predicate offense, is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The charging documents to which Eddins pleaded guilty state that Eddins entered a building not open to the public, without the effective consent of the owner, with the intent to commit theft. This language tracks that of
Eddins attempts to distinguish his offense because it was a second degree felony under the 1985 version of the burglary statute and thus necessarily lacked the violent or potentially violent conduct that would make it a first degree felony. He relatedly argues that his crime did not involve purposeful, violent, and aggressive conduct, which he contends is required by the analysis of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). We discern nothing in his arguments that alters our holding in Silva, 957 F.2d at 162, that the elements of
Finally, Eddins contends that the district court improperly enhanced his sentence in violation of the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He argues that whether the prior convictions were committed on different occasions, as required under the ACCA, is a fact that must be alleged in the indictment and either proved by the Government beyond a reasonable doubt or admitted by the defendant. As Eddins concedes, this argument is foreclosed. See United States v. White, 465 F.3d 250, 254 (5th Cir.2006).
Although we conclude that the judgment should be affirmed without further briefing, summary disposition is not appropriate. See United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir.2006). Thus, we deny the Government‘s motion for summary affirmance or, alternatively, for an extension of time to file a brief.
JUDGMENT AFFIRMED; MOTION DENIED.
PER CURIAM