United States v. Moreno

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
No. 06-20654
F I L E D
Summary Calendar August 23, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EULALIO MORENO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-235
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Eulalio Moreno pleaded guilty to counts 1 and 2 of an indictment charging
him with possession of counterfeit United States currency (count 1) and
possession of a firearm by a felon convicted of three or more previous violent
felonies (count 2). Because Moreno was convicted in Texas in 1987 of burglary
of a habitation and again in 1988 of three counts of burglary of a habitation, the
probation officer determined that Moreno was an armed career criminal within
the meaning of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(a) (2003). Because
*
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should not be published and is not precedent except under the limited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. 06-20654
Moreno used or possessed a gun in connection with a controlled substance
offense, Moreno’s total offense level was determined under U.S.S.G.
§ 4B1.4(b)(3)(A) (2003). The district court sentenced Moreno at the top of the
guidelines imprisonment range to concurrent 235-month terms of imprisonment.
Moreno appealed his sentence and this court remanded for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005). United States v.
Moreno, 183 F. App’x 437, 438 (5th Cir. 2006). On remand, the district court
determined again that Moreno is an armed career criminal. The district court
reimposed the same sentence. Moreno gave timely notice of his appeal.
Moreno contends that the district court erred in determining that his 1987
and 1988 state convictions of burglary of a habitation were crimes of violence
and that he is an armed career criminal under § 924(e) and § 4B1.4(a). He
contends that the Texas offense of burglary of a habitation does not have as an
element the use, attempted use, or threatened use of physical force against the
person of another, that the offense is not equivalent to the enumerated offense
of burglary of a dwelling, and does not by its nature, present a serious potential
risk of physical injury to another person. Because Moreno did not raise these
issues in the district court, we review them for plain error. See United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). To demonstrate plain error, Moreno
must show clear or obvious error that affects his substantial rights; if he does,
this court has discretion to correct a forfeited error that seriously affects the
fairness, integrity, or public reputation of judicial proceedings, but is not
required to do so. See id.In Taylor v. United States, 495 U.S. 575, 602 (1990), the Court held that,
because the term “burglary” is variously defined by different states, the meaning
of the term, for purposes of § 924(e), was limited to a “generic” definition of
burglary set forth in the Court’s opinion: a “crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to commit a crime.”
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No. 06-20654
495 U.S. at 599. The Texas offense of burglary of a habitation is a “generic
burglary” for purposes of applying § 924(e). See United States v. Silva, 957 F.2d
157, 162 (5th Cir. 1992). Shepard v. United States, 544 U.S. 13 (2005), cited by
Moreno, did not change the definition of “generic burglary” set forth in Taylor.
See 544 U.S. at 19; see also United States v. Garcia-Mendez, 420 F.3d 454,
456–57 (5th Cir. 2005), cert. denied, 126 S. Ct. 1398 (2006).
Citing Shepard, Moreno argues that no evidence was presented showing
that the predicate burglaries were generic burglaries. Interpreting Shepard,
this court has held that “a district court errs when it solely relies upon the
[presentence report’s] characterization of a defendant’s prior offenses for
enhancement purposes.” United States v. Jenkins, 487 F.3d 279, 281 (5th Cir.
2007). Because Moreno did not dispute the adequacy of proof with regard to the
predicate burglaries, we review this question for plain error. See id. Moreno has
not asserted or shown on appeal that his prior convictions for burglary of a
habitation were not violent felonies. See id. at 281–82. Accordingly, Moreno
has not shown that his substantial rights were affected by any error on the part
of the district court in failing to require supporting documentation showing that
the predicate burglaries were generic burglaries. See id. (citing United States
v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006)).
Moreno contends that the district court erred in determining his offense
level under § 4B1.4(b)(3)(A). Under § 4B1.4(a), a “defendant who is subject to
an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed
career criminal.” Under § 4B1.4(b)(3)(A), the offense level of an armed career
criminal is 34 if he “used or possessed the firearm . . . in connection with . . . a
controlled substance offense, as defined in § 4B1.2(b) . . . .” The term ‘controlled
substance offense’ means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits the . . . possession
of a controlled substance . . . with intent to . . . distribute . . . .” § 4B1.2(b). A
“‘controlled substance offense’ include[s] the offense of aiding and abetting,
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conspiring, and attempting to commit such [an] offense[].” § 4B1.2, comment.
(n.1).
The probation officer determined that Moreno’s offense level under
§ 4B1.4(b)(3)(A) because Moreno had “possessed the firearm in connection with
a controlled substance offense, as defined in U.S.S.G. § 4B1.2(b), namely, aiding
and abetting the possession with intent to distribute cocaine . . . .” The
probation officer reported that a confidential informant disclosed to the United
States Secret Service that Moreno intended to purchase cocaine using
counterfeit currency. The scheme was verified using surveillance and monitored
conversations. After his arrest, Moreno gave a statement confirming his role in
the drug transaction.
Moreno contends that the offenses to which he pleaded guilty, i.e.,
possession of counterfeit United States currency and possession of a firearm by
a felon convicted of three or more previous violent felonies, were neither crimes
of violence nor controlled substance offenses. Because this issue was not raised
in Moreno’s original appeal, it is barred under the mandate rule unless Moreno
shows that the district court’s ruling was clearly erroneous and will result in a
manifest injustice. See United States v. Pineiro, 470 F.3d 200, 204–05 (5th Cir.
2006); United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.1998)).
Moreno cannot show that the district court clearly erred. “[T]here is no
requirement that the enhancement in § 4B1.4(b)(3)(A) be applied only when the
defendant is charged with or convicted of a crime of violence. Rather, if a district
court finds, based on a preponderance of the evidence, that the unlawful conduct
occurred, the enhancement is proper.” United States v. Rockey, 449 F.3d 1099,
1104 (10th Cir. 2006); see also United States v. Guerrero, 5 F.3d 868, 872–73 (5th
Cir. 1993) (district court did not plainly err in determining that defendant
convicted of being a felon in possession of a firearm had possessed the firearm
in connection with a uncharged crime of violence (burglary of a habitation)).
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Moreover, even if the district court did err in sentencing Moreno at level
34 under § 4B1.4(b)(3)(A), instead of at level 33 under U.S.S.G. § 4B1.4(b)(3)(B),
such an error would not result in a manifest injustice under the circumstances
of this case. Moreno does not dispute that the uncharged drug offense would
constitute a controlled substance offense under § 4B1.2(b).
Moreno contends also that the district court erred in assessing the four-
level increase under U.S.S.G. § 2K2.1(b)(5) (2003). Because application of the
armed career criminal provision resulted in a higher offense level than the
Chapter Two offense level, any error in applying § 2K2.1(b)(5) could not have
resulted in a manifest injustice. The judgment is
AFFIRMED.
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