United States v. Antonio Fletcher

524 F. App'x 89
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 25, 2013
Docket11-11173
StatusUnpublished

This text of 524 F. App'x 89 (United States v. Antonio Fletcher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Antonio Fletcher, 524 F. App'x 89 (5th Cir. 2013).

Opinion

PER CURIAM: *

Appellant Antonio Fletcher appeals the imposition of a 51 month sentence of imprisonment, arguing that the district court erred by including a juvenile conviction in Fletcher’s criminal history score. Because any error by the district court was not plain, we affirm.

I.

On December 6, 2011, Antonio Fletcher pleaded guilty to possession of a firearm by a convicted felon. The presentence report (PSR) indicated that Fletcher had three prior Texas state criminal convictions, including assault, criminal mischief, and aggravated robbery. On January 16, 2003, Fletcher was placed on one year of probation for the assault and criminal mischief offenses. While on probation, Fletcher was arrested for aggravated robbery. His probation was revoked on November 13, 2003, and Fletcher was committed to the Texas Youth Commission (TYC) for an indeterminate term. On January 20, 2004, Fletcher pleaded guilty as an adult to the aggravated robbery and was sentenced to six years imprisonment. Fletcher was subsequently discharged from TYC custody on February 6, 2004, and was immediately incarcerated by the Texas Department of Criminal Justice (TDCJ) to serve his sentence for the aggravated robbery offense. On September 9, 2009, Fletcher was discharged from TDCJ without parole. On February 7, 2010, Fletcher committed the instant offense of felon in possession of a firearm.

For sentencing on the instant offense, Fletcher was assigned two criminal history points for the juvenile assault conviction pursuant to U.S. Sentencing Guidelines Manual § 4A1.2(d)(2)(A), which directs courts to add two points “for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense.” No criminal history points were initially assigned to Fletcher’s juvenile adjudication of criminal mischief conviction. 1

Fletcher filed written objections to the PSR, objecting to the assignment of the two criminal history points for his juvenile conviction. The Government responded that when Fletcher received an indeterminate sentence he was committed to the TYC until his twenty-first birthday. See In re J.H., 150 S.W.3d 477, 480 n. 1 (Tex.App.-Austin 2004, pet denied) (“An indeterminate sentence ... commits a juvenile ... until at most the juvenile’s twenty-first birthday.”) (citing TEX. HUM. RES. CODE ANN. § 61.084). The government further asserted that under Fifth Circuit case law, the maximum possible term under an indeterminate sentence determines the length of the sentence imposed, and *91 not the amount of time actually served. See United States v. Quinonez-Terrazas, 86 F.3d 382, 383 (5th Cir.1996). Thus, the government argued, Fletcher’s sentence for criminal mischief sentence ended on his 21st birthday, May 6, 2007, which was within five years of the commencement of the instant firearm offense on February 7, 2010.

At sentencing, Fletcher repeated his written objection to the assignment of two criminal history points based on his juvenile criminal mischief conviction. The district court asked whether Fletcher’s counsel agreed with the Government that an indeterminate juvenile sentence ends on the prisoner’s twenty-first birthday. Fletcher’s counsel answered: “I am acknowledging ... current Fifth Circuit case law.” The district court asked again whether the Government had correctly represented this court’s case law, and counsel agreed that under the cited law the two levels “could be assessed.” The district court stated, “[t]hat is another way of saying they are right without agreeing with them” and overruled Fletcher’s objection to the assignment of the criminal history points for the juvenile adjudication. Fletcher’s level-20, category III sentencing guidelines range was 41-51 months of imprisonment. The district court imposed a 51 month sentence of imprisonment, finding that such sentence “would be fair and reasonable under the circumstances of this case.”

II.

This court reviews a district court’s guidelines interpretations de novo and reviews findings of fact for clear error. United States v. Le, 512 F.3d 128, 134 (5th Cir.2007). If a defendant does not challenge the application of the guidelines before the district court, this court reviews for plain error only. See United States v. Krout, 66 F.3d 1420, 1434 (5th Cir.1995).

A.

On appeal, Fletcher asserts that the district court erred when imposing two criminal history points for his juvenile conviction, arguing that he completed his indeterminate sentence on the juvenile conviction when discharged from TYC custody in 2004, which was not within five years of the commencement of the 2010 firearm offense. The Government argues that Fletcher waived any argument that the district court erred by imposing two criminal history points for the juvenile conviction because Fletcher conceded that the imposition of the criminal history points was correct under this court’s case law. Fletcher contends that although he agreed that our case law supported the government’s position, he maintained his general objection to the imposition of the two criminal history points.

At sentencing, Fletcher’s counsel had the following exchange with the district court:

COUNSEL: [T]he two points should not have been assessed for the misdemeanor juvenile offense. I do recognize the case law that the government has submitted with regard to the indeterminate sentence and would renew our objection and rest on the written materials.
COURT: ... I want to make certain what your position is.... [W]hat is your position with respect to the government’s response [in regard to indeterminate sentences]?
COUNSEL: Your Honor, the Fifth Circuit case law cited by the government does discuss indeterminate sentences, and it would appear that the indeterminate sentence that Mr. Fletcher was subject to ... would have lasted into the five-year time period for the indigent *92 offense, and so the defense agrees that those two levels could be assessed.
COURT: All right, just so the record is clear, you in essence agree[] with the government, is that correct?
COUNSEL: I am acknowledging ... the current Fifth Circuit case law.

A defendant waives an issue through “the intentional relinquishment of a known right.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.2006). An issue is forfeited through “the failure to make the timely assertion of a right.” Id. “Forfeited errors are reviewed under plain error standard; waived errors are entirely unre-viewable.” Id.

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Related

United States v. Rodriguez
15 F.3d 408 (Fifth Circuit, 1994)
United States v. Krout
66 F.3d 1420 (Fifth Circuit, 1995)
United States v. Arviso-Mata
442 F.3d 382 (Fifth Circuit, 2006)
United States v. Vu Anh Le
512 F.3d 128 (Fifth Circuit, 2007)
United States v. Jackson
549 F.3d 963 (Fifth Circuit, 2008)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Puckett v. United States
556 U.S. 129 (Supreme Court, 2009)
United States v. Pablo Quinonez-Terrazas
86 F.3d 382 (Fifth Circuit, 1996)
United States v. Ricardo M. Infante
404 F.3d 376 (Fifth Circuit, 2005)
United States v. Pablo Dominguez-Alvarado
695 F.3d 324 (Fifth Circuit, 2012)
In re J. H.
150 S.W.3d 477 (Court of Appeals of Texas, 2004)

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Bluebook (online)
524 F. App'x 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-antonio-fletcher-ca5-2013.