United States v. Stone , 72 F. App'x 149 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2003
Charles R. Fulbruge III
Clerk
No. 02-51221
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHERYL YVONNE STONE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CR-292-2-SS
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Cheryl Yvonne Stone, convicted of violating 18 U.S.C.
§§ 922(g)(1) and 924(e) by possessing a firearm as a convicted
felon, appeals her sentence.
Stone argues that her prior burglary convictions do not
qualify as the three prior convictions required under 18 U.S.C.
§ 924(e)(1). However, “Burglary of a Building” as defined at
Texas Penal Code § 30.02 does substantially correspond to generic
burglary as required by Taylor v. United States, 495 U.S. 575,
*
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that this opinion should not be published and is not precedent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. 02-51221
-2-
602 (1990), for the sentencing enhancement under 18 U.S.C.
§ 924(e). United States v. Silva, 957 F.2d 157, 161-62 (5th Cir.
1992). As Stone’s burglary offenses were separated by an
intermediate period of non-criminal activity, they were correctly
counted as separate offenses under 18 U.S.C. § 924(e)(1). United
States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988).
Stone also argues that the district court erred by not
reducing her offense level for acceptance of responsibility.
Given the highly deferential standard of review, the district
court’s ruling cannot be seen as without foundation. Cf. United
States v. Brace, 145 F.3d 247, 264-65 (5th Cir. 1998)(admission
to facts of conduct insufficient to require reduction where some
facet of culpability is denied).
Finally, Stone argues that the district court erred by
declining to downwardly depart on the mistaken assumption that it
lacked the authority to do so. Courts are permitted to consider
various factors in imposing a sentence, including the “nature of
the circumstances of the offense,” “the need for the sentence
imposed to reflect the seriousness of the offense,” and “the need
to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
18 U.S.C. § 3553(a)(1), (a)(2)(A), and (a)(6).
The record does not clearly reveal whether the district
court properly understood its discretion to depart. The district
judge, at the resentencing hearing, characterized Stone’s
No. 02-51221
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sentence as “terribly inequitable” and “atrocious.” The district
judge, however, stated “I don’t see any way around it in the
state of the present law” and “my hands are tied.” The
Government argues that due to the history of this case, the
district court should have been aware that it could downward
depart.
In light of the ambiguity, we remand the case for
reconsideration of the sentence. See United States v.
Garcia-Ortiz, 310 F.3d 792, 795-96 (5th Cir. 2002). The only
issue on remand is whether the district court recognized that it
had the discretion to depart. If the district court was aware of
its discretion but declined to exercise it, then the original
sentence should stand. However, if the district court believed
that it lacked the authority to depart, Stone should be
resentenced with the district court's full awareness of its
discretionary authority. We take no position on what decision
the district court should make.
REMANDED FOR RECONSIDERATION OF SENTENCE.