United States v. Kimbrell

Case: 20-10751 Document: 00515837155 Page: 1 Date Filed: 04/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 26, 2021
No. 20-10751 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Trey Craig Kimbrell,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 5:19-CR-101-1
Before Smith, Stewart, and Ho, Circuit Judges.
Per Curiam:*
Trey Kimbrell pleaded guilty of being a convicted felon unlawfully in
possession of a firearm and was sentenced, at the top of the guideline range,
to 37 months’ imprisonment. Kimbrell appeals the guideline calculation. He
contends that the district court erred when it assessed a criminal history point
under U.S.S.G. § 4A1.1(c) for a 2017 burglary charge that was disposed of
under Texas Penal Code § 12.45. Specifically, Kimbrell avers that a disposi-
tion under § 12.45 is not a “conviction” for purposes of U.S.S.G.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-10751 Document: 00515837155 Page: 2 Date Filed: 04/26/2021
No. 20-10751
§ 4A1.2(a)(4), so that disposition did not yield a “prior sentence” justifying
the assessment of a criminal history point. That is a question of law, which
we review de novo. United States v. Valdez-Valdez, 143 F.3d 196, 197–98 (5th
Cir. 1998).
Kimbrell asserts that the “only” issue is “whether an unadjudicated
Texas offense disposed of via Tex. Pen. Code § 12.45 constitutes a ‘con-
viction’ for the purposes of U.S.S.G. § 4A1.2(a)(4).” But that argument mis-
construes the district court’s ruling. The record reflects that the court
adopted the government’s theory that a criminal history point was assessed
correctly under U.S.S.G. § 4A1.2(f). Thus, the court concluded that the bur-
glary charge disposed of under § 12.45 was a “diversionary disposition result-
ing from a finding or admission of guilt” and assessed a criminal history point
accordingly. U.S.S.G. §§ 4A1.1(c), 4A1.2(f).
Kimbrell fails to address that conclusion at all, much less engage with
“the district court’s reasoning . . . or explain how [its] rationale was errone-
ous.” Thompson v. Bank of Am. Nat’l Ass’n, 783 F.3d 1022, 1027 (5th Cir.
2015). Accordingly, he has forfeited the only issue on appeal. See id.; Fed.
R. App. P. 28(a)(8)(A) (“The appellant’s brief must contain . . . the argu-
ment, which [in turn] must contain[ ] appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which
the appellant relies[.]”).1
AFFIRMED.
1
Although we “ha[ve] the discretion to consider inadequately briefed claims,”
Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019), we opt not to do so here. The
issue properly on appeal is whether a charge disposed of per § 12.45 constitutes a diver-
sionary disposition for purposes of U.S.S.G. § 4A1.2(f). That is an important res nova issue
that we decline to address without the benefit of adversarial briefing. See Kaley v. United
States, 571 U.S. 320, 338 (2014) (“[T]he adversarial process leads to better, more accurate
decision-making.”).
2