United States v. Steve Hughey , 531 F. App'x 406 ( 2013 )

Case: 12-40193 Document: 00512235665 Page: 1 Date Filed: 05/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2013
No. 12-40193
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEVE ALLEN HUGHEY,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:10-CR-151-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Steve Allen Hughey pleaded guilty to being a felon in possession of a
firearm and now appeals the statutory mandatory minimum 15-year prison
sentence imposed after the district court concluded that he qualified for an
enhancement pursuant to the Armed Career Criminal Act (ACCA). Hughey
argues that the district court erred in finding that there was sufficient reliable
evidence in his penitentiary (pen) packets to determine that he had committed
the three prior convictions used to support the ACCA enhancement. The
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40193 Document: 00512235665 Page: 2 Date Filed: 05/08/2013
No. 12-40193
Government has filed a motion for summary affirmance or, in the alternative,
an extension of time to file a brief.
The Government’s motion for summary affirmance is DENIED. See
United States v. Holy Land Found. for Relief, 445 F.3d 771, 781 (5th Cir. 2006);
United States v. Taylor, 631 F.2d 419, 420 & n.1 (5th Cir. 1980); Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). In the interest of
judicial economy, the motion for an extension of time is also DENIED.
The district court’s legal interpretation or application of the Sentencing
Guidelines is reviewed de novo. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). In addition, we will uphold factual findings unless
clearly erroneous. Id. In determining whether an ACCA enhancement is proper,
the Government bears the initial burden of establishing the defendant’s prior
convictions by a preponderance of the evidence. United States v. Constante, 544
F.3d 584, 587 (5th Cir. 2008) (citing United States v. Rodriguez, 523 F.3d 519,
524 (5th Cir. 2008)). We have previously found that a pen packet from the Texas
Department of Criminal Justice (TDCJ) can be sufficient to prove the existence
of prior convictions. See United States v. Vidaure, 861 F.2d 1337, 1340-41 (5th
Cir. 1988); United States v. Dancy, 861 F.2d 77, 79 (5th Cir. 1988).
Hughey specifically argues that a report written by the United States
Marshals Service did not properly link him to the fingerprint cards contained in
the pen packets. However, Hughey fails to challenge the district court’s
conclusion that the fingerprints relating to his prior convictions had also been
linked to him through, among other things, official records obtained from the
TDCJ. His failure to challenge the district court’s alternative bases for
concluding that the fingerprint cards contained in the pen packets properly
linked him to the prior convictions constitutes an abandonment of those issues.
See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992); FED. R. APP.
P. 28(a)(9)(A). Therefore, we need not address his arguments. See Beaumont,
972 F.2d at 563.
Accordingly, the judgment of the district court is AFFIRMED.
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