United States v. Olivo , 353 F. App'x 958 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 08-51309
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS ALEJANDRO OLIVO,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-191-ALL
Before REAVLEY, DAVIS, and GARZA, Circuit Judges.
PER CURIAM:*
Carlos Alejandro Olivo appeals his enhanced sentence following a guilty
plea to being a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). Olivo argues that the district court plainly erred by
sentencing him as an armed career criminal because one of the convictions used
to enhance his sentence, a 1992 Texas conviction for burglary of a habitation, is
not a violent felony within the meaning of § 924(e)(1). He also argues that
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-51309
§ 922(g) is unconstitutional under United States v. Lopez, 514 U.S. 549 (1995);
however, he properly concedes that this issue is foreclosed by this circuit’s
precedent. See United States v. De Leon, 170 F.3d 494, 499 (5th Cir. 1999).
In response to Olivo’s challenge to the propriety of his enhanced sentence,
the Government has supplemented the record with a written stipulation of
testimony entered by Olivo in connection with his guilty plea to the 1992
burglary charge. See Shepard v. United States, 544 U.S. 13, 16 (2005); United
States v. Garcia-Arellano, 522 F.3d 477, 481 (5th Cir.), cert. denied, 129 S. Ct.
353 (2008). Olivo’s stipulation makes it clear that his prior offense was a violent
felony under the Armed Career Criminal Act. See United States v. Constante,
544 F.3d 584, 585-87 (5th Cir. 2008); T EX. P ENAL C ODE A NN. § 30.02(a)(1), (3)
(Vernon 1989).
AFFIRMED.
2