United States v. Guerrero ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10990
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED ZAPATA GUERRERO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:98-CR-80-2
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June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Fred Zapata Guerrero appeals his sentence following a
guilty-plea conviction for possession of stolen firearms in
violation of 18 U.S.C. §§ 922(j) and 924(a)(2).
This court reviews the sentencing judge’s application of the
sentencing guidelines de novo and accepts the sentencing judge’s
findings of fact unless they are clearly erroneous. United
States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).
Guerrero argues that a 1988 aggravated-assault offense
should not be used to calculate his base offense level under
*
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this opinion should not be published and is not precedent except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.
No. 99-10990
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U.S.S.G. § 2K2.1 because he was given deferred adjudication for
the offense. He argues that, because the deferred adjudication
has not been finally adjudicated, it should not be counted as a
conviction under § 2K2.1. We have previously determined that a
deferred adjudication can be used when calculating a defendant’s
base offense level under § 2K2.1. United States v. Stauder, 73
F.3d 56, 57 (5th Cir. 1996).
Guerrero admits that he is aware of Stauder, but he urges
this court to overrule its opinion in that case. One panel of
this court may not overrule the decision of a prior panel in the
absence of an intervening contrary or superseding decision by
this court sitting en banc or by the United States Supreme Court.
Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.
1999). Therefore, Guerrero’s request that this court revisit the
decision in Stauder is without merit, and the judgment of the
district court is AFFIRMED.