United States v. Akers

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2009
No. 08-40577
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
BRIAN KEITH AKERS
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CR-54-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Brian Keith Akers appeals from his conviction and sentence for being a
felon in possession of a firearm. He first argues that the district court erred in
denying his motions for acquittal because the evidence presented at trial failed
to prove beyond a reasonable doubt that he possessed the firearm. Viewing the
evidence in the light most favorable to the jury’s verdict, a rational trier of fact
could have found that the Government proved beyond a reasonable doubt that
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 08-40577
Akers had possession of the firearm. United States v. Lankford, 196 F.3d 563,
575 (5th Cir. 1999).
Akers also contends that the district court erred by including two Indiana
sentences for being a habitual traffic violator in his criminal history score
because his status as a habitual traffic violator could have been based upon
minor traffic infractions, which are never counted towards the criminal history
score under U.S.S.G. § 4A1.2(c)(2). We review the district court’s application of
the Sentencing Guidelines de novo. United States v. Lamm, 392 F.3d 130, 131
(5th Cir. 2004). The challenged Indiana sentences were for felony offenses and
were therefore properly counted pursuant to § 4A1.2(c).
Akers also argues that the district court was required to prove the facts
underlying his sentence utilizing the beyond-a-reasonable-doubt standard. This
court has specifically rejected identical arguments from other defendants. See
United States v. Valles, 484 F.3d 745, 759–60 (5th Cir.), cert. denied, 127 S. Ct.
3025 (2007); United States v. Thompson, 454 F.3d 459, 467–68 (5th Cir. 2006).
The district court’s judgment is AFFIRMED.
2