United States v. Wilson ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2009
No. 08-41020
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JAMILE NICOLE WILSON
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CR-235
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Jamile Nicole Wilson appeals his sentence following his guilty plea
conviction for possession with intent to distribute or dispense cocaine base. The
district court’s applied the career offender guideline under U.S.S.G. § 4B1.1 and
sentenced Wilson to 188 months of imprisonment and five years of supervised
release. Wilson contends that the district court erred by imposing the career
offender enhancement under § 4B1.1.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-41020
A defendant is a career offender under § 4B1.1 if “(1) the defendant was
at least eighteen years old at the time the defendant committed the instant
offense of conviction, (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense, and (3) the defendant has
at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” § 4B1.1(a). Wilson challenges only the third element,
arguing that the district court erred by applying the career offender
enhancement based solely on his presentence report’s characterization of the two
prior convictions underlying the enhancement, a Texas conviction for burglary
of a habitation with intended other felony and a federal conviction for conspiracy
to manufacture, distribute, or possess with intent to manufacture, distribute, or
dispense cocaine base.
While the district court was not provided materials independent from the
presentence report documenting these prior convictions, Wilson’s counsel
admitted at sentencing that Wilson was in fact convicted of the burglary and
conspiracy offenses. The district court was permitted to rely on this admission
in determining that those convictions could be used as a basis to enhance
Wilson’s sentence. See United States v. Jenkins, 487 F.3d 279, 281 (5th Cir.
2007); United States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006).
After filing a written objection challenging Wilson’s burglary conviction “as
a basis for asserting he is a career offender,” Wilson’s counsel conceded at the
sentencing hearing that Wilson’s burglary and conspiracy convictions satisfied
the requirements of the career offender guideline, stating, “Yes, statutorily and
pursuant to the sentencing guidelines those would qualify, I can’t argue with
that.” In light of this concession, Wilson waived the issue whether those
convictions fall within the definition of “crime of violence” or “controlled
substance offense” for purposes of the career offender enhancement. See United
States v. Salazar, 542 F.3d 139, 145-46 (5th Cir. 2008), cert. denied, 129 S. Ct.
1669 (2009). Wilson also briefs no such argument in this court and thus has
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No. 08-41020
waived any such challenge here. See United States v. Edwards, 303 F.3d 606,
647 (5th Cir. 2002).
AFFIRMED.
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