United States v. Frazier , 220 F. App'x 294 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 28, 2007
Charles R. Fulbruge III
Clerk
No. 05-20722
c/w No. 05-20741
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN BUFORD FRAZIER,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-354-2
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
John Buford Frazier was convicted for possessing a firearm
as a convicted felon under 18 U.S.C. § 922(g)(1) and § 924(a)(2).
In the first of two consolidated appeals, No. 05-20722, he
challenges the district court’s revocation of his pre-trial bond.
We lack jurisdiction to consider his claims because the issues
raised are moot. See Fassler v. United States, 858 F.2d 1016,
1017-18 (5th Cir. 1988). The appeal is therefore DISMISSED.
*
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this opinion should not be published and is not precedent except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.
Nos. 05-20722
c/w No. 05-20741
-2-
In the second of Frazier’s appeals, he challenges his
conviction and the 71-month sentence he received. First he
asserts that the district court erred in including his 1983 Texas
conviction for burglary in determining his criminal history
score. Frazier was paroled on the 1983 conviction in 1987. The
following year, he was convicted of aggravated robbery and
imprisoned in Colorado. In 1989, his parole on the 1983
conviction was revoked, and his sentence was not discharged until
1991. Frazier asserts that, because he was already in prison in
Colorado at the time his parole on the 1983 conviction was
revoked, the Colorado imprisonment did not “result from” the 1983
conviction for purposes of counting it toward his criminal
history under U.S.S.G. § 4A1.2(e)(1). We rejected such an
argument in United States v. Ybarra, 70 F.3d 362, 366-67 (5th
Cir. 1995).
Next Frazier asserts that the district court erred in
denying his motion to dismiss the indictment. The Sixth
Amendment requires that an indictment (1) enumerate each prima
facie element of the charged offense; (2) fairly inform the
defendant of the charges filed against him; and (3) provide the
defendant with a double jeopardy defense against future
prosecutions. United States v. Gaytan, 74 F.3d 545, 551 (5th
Cir. 1996). The elements of the offense under § 922(g)(1) are
that the defendant have a prior conviction “in any court of[] a
Nos. 05-20722
c/w No. 05-20741
-3-
crime punishable by imprisonment for a term exceeding one year.”
§ 922(g)(1).
The indictment does not specify the predicate offense for
the charge against Frazier, although it does state that it was a
crime of violence. Frazier asserts that his 1988 Colorado
conviction cannot serve as the predicate offense. Assuming
arguendo that he is correct, he has another prior conviction for
a crime of violence, his 1983 conviction for burglary of a
habitation in Texas. Accordingly, the district court did not err
in denying Frazier’s motion.
Finally, Frazier asserts that the disparity between his 71-
month sentence and the 21-month sentence his co-defendant
received for the same conduct violates his rights under the Due
Process Clause. We review the district court’s sentencing
decision for unreasonableness, with our inquiry guided by the
considerations set forth in 18 U.S.C. § 3553(a). United States
v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). Subsection (a)(6)
requires the sentencing court to consider the disparity in
sentences among defendants who have been found guilty of similar
conduct only where the defendants have “similar records.”
§ 3553(a)(6). Thus, § 3553(a)(6) concerns “the need to avoid
disparity among similarly situated defendants nationwide rather
than disparity with [a defendant’s] differently-situated
co-defendant.” United States v. Duhon, 440 F.3d 711, 721 (5th
Cir. 2006), petition for cert. filed (May 18, 2006) (05-11144).
Nos. 05-20722
c/w No. 05-20741
-4-
Even before § 3553 came into effect with the Sentencing Reform
Act of 1984, see Mistretta v. United States, 488 U.S. 361, 367-68
(1989), we had held that a disparity between co-defendants’
sentences does not violate the Due Process Clause where the
greater sentence is based upon, inter alia, the defendant’s
character and background. United State v. Lucio, 394 F.2d 511,
511-12 (5th Cir. 1968).
Frazier’s sentence was the result of his extensive criminal
record, and his counsel admitted during the sentencing hearing
that Frazier was different from his co-defendant and that “you
just can’t treat everybody equally.” The disparity between the
co-defendants’ sentences here is not unreasonable, and it does
not violate the protections of the Due Process Clause.
The judgment of the district court is AFFIRMED.