United States v. Austin

Fifth Circuit

United States v. Austin

111 F. App'x 783

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 11, 2004

Docket04-10254

StatusUnpublished

Cited by4 cases

This text of 111 F. App'x 783 (United States v. Austin) 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.

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United States v. Austin, 111 F. App'x 783 (5th Cir. 2004).

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Opinion

PER CURIAM: *

Gregory Lamont Austin appeals his sentence for his guilty-plea conviction of being a felon in possession of a firearm. Austin argues that the district court clearly erred in finding that his sentence should be enhanced by three levels because police officers were deemed to be official victims of his possession of the firearm under U.S.S.G. § 3A1.2(b). In particular, he argues that the district court erroneously found that Austin knew it was the police and not a burglar when he fired the gun.

*784 The district court did not clearly err when it applied the three-level enhancement. See United States v. Polk, 118 F.3d 286, 297 (5th Cir.1997). Two officers testified that all of the officers present “yelled” to announce their presence as they were battering Austin’s door down. Although Austin argued that he could not have been expected to hear the officers’ announcement because a television was on in the back bedroom, the district court chose instead to credit the officers’ testimony regarding the loudness of their announcement. To do so was not clear error. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Austin also argues that the district court committed plain error in enhancing his sentence based on findings not alleged in the indictment, proven to a jury, or proven beyond a reasonable doubt in violation of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). As Austin acknowledges, this issue is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004), petition for cert, filed, (U.S. July 14, 2004), in which this court held “that Blakely does not extend to the federal Guidelines.” The judgment of the district court is AFFIRMED.

*

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.

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PER CURIAM: *

Gregory Lamont Austin appeals his sentence for his guilty-plea conviction of being a felon in possession of a firearm. Austin argues that the district court clearly erred in finding that his sentence should be enhanced by three levels because police officers were deemed to be official victims of his possession of the firearm under U.S.S.G. § 3A1.2(b). In particular, he argues that the district court erroneously found that Austin knew it was the police and not a burglar when he fired the gun.

*784 The district court did not clearly err when it applied the three-level enhancement. See United States v. Polk, 118 F.3d 286, 297 (5th Cir.1997). Two officers testified that all of the officers present “yelled” to announce their presence as they were battering Austin’s door down. Although Austin argued that he could not have been expected to hear the officers’ announcement because a television was on in the back bedroom, the district court chose instead to credit the officers’ testimony regarding the loudness of their announcement. To do so was not clear error. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

Austin also argues that the district court committed plain error in enhancing his sentence based on findings not alleged in the indictment, proven to a jury, or proven beyond a reasonable doubt in violation of Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). As Austin acknowledges, this issue is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004), petition for cert, filed, (U.S. July 14, 2004), in which this court held “that Blakely does not extend to the federal Guidelines.” The judgment of the district court is AFFIRMED.

*

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.

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111 F. App'x 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-austin-ca5-2004.

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