United States v. Lewis , 150 F. App'x 376 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41124
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LONNIE JAMES LEWIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-252-MAC-WCR
--------------------
Before JOLLY, DAVIS, AND OWEN, Circuit Judges.
PER CURIAM:*
Lonnie James Lewis appeals his conviction of being a convicted
felon in possession of ammunition. He contends that the evidence
was insufficient to support his conviction; that the district court
erred by dismissing two venire members for cause; that his previous
state-court conviction of retaliation did not constitute a crime of
violence as defined by U.S.S.G. § 4B1.2; and that his sentence
violated United States v. Booker.1
*
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this opinion should not be published and is not precedent except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.
1
125 S. Ct. 738 (2005).
No. 04-41124
-2-
We will affirm the jury’s verdict so long as there is evidence
sufficient to allow a reasonable jury to find Lewis guilty beyond
a reasonable doubt.2 The jury could have inferred from the
evidence beyond a reasonable doubt that Lewis knowingly possessed
ammunition.3 Police testimony indicated that Lewis was the sole
occupant of the residence in which the ammunition was found, and
that the ammunition was found in plain view. Testimony also
established that the ammunition was manufactured in Arkansas and
that it had to have traveled across state lines to be possessed in
Texas.4
The district court did not abuse its discretion by striking
two venirepersons for cause.5 Those venirepersons’ answers during
voir dire indicated that they would not be able to put their
personal beliefs aside and base their decisions on the evidence
presented in the case.6
Lewis’s contentions regarding the validity of his conviction
are unavailing. The conviction therefore is AFFIRMED.
2
See United States v. Floyd, 343 F.3d 363, 370 (5th Cir.
2003), cert. denied, 541 U.S. 1054 (2004).
3
See United States v. Jones, 133 F.3d 358, 362 (5th Cir.
1998).
4
See United States v. Cavazos, 288 F.3d 706, 712 (5th Cir.
2002).
5
See United States v. Miller, 666 F.2d 991, 999 (5th Cir.
1982).
6
See Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984).
No. 04-41124
-3-
The Texas offense of retaliation is not a crime of violence
for purposes of the Sentencing Guidelines.7 The issue was raised
for the first time on appeal, and the adjustment for the previous
commission of a crime of violence constituted plain error that
affected Lewis’s substantial rights and that undermined the
fairness of his sentencing.8 Lewis’s sentence therefore is VACATED
and REMANDED for resentencing. Because the district court plainly
erred regarding the adjustment for previous commission of a crime
of violence, we do not address Lewis’s Booker contention.9
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
7
See United States v. Montgomery, 402 F.3d 482, 489 (5th Cir.
2005) (retaliation not a “violent felony” under 18 U.S.C.
§ 924(e)(2)); United States v. Martinez-Mata, 393 F.3d 625, 628–29
(5th Cir. 2004) (retaliation not a crime of violence), cert.
denied, 125 S. Ct. 1877 (2005).
8
See United States v. Villegas, 404 F.3d 355, 364–65 (5th Cir.
2005).
9
See id. at 365.