United States v. Deleon

280 F. App'x 348
Court of Appeals for the Fifth Circuit·Decided May 30, 2008·No. 07-10548·Unpublished·Cited by 5 cases

Opinions

PER CURIAM: *

Robert Deleon pleaded guilty to being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Deleon to fifty-seven months of imprisonment and three years of supervised release. He now appeals his conviction and sentence. We affirm.

I. FACTS AND PROCEEDINGS

On August 16, 2006, a grand jury indicted Deleon for being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for possession of a stolen firearm in violation of 18 U.S.C. § 922(j). On January 11, 2007, Deleon pleaded guilty to being a convicted felon in possession of a firearm.

Following Deleon’s guilty plea, the United States Probation Office prepared a presentence report (“PSR”). Paragraph 38 of the PSR noted that Deleon had recently [349] been indicted for aggravated sexual assault of a child in state court:

On January 4, 2007, the defendant was indicted in Case No. 22,786-A for Aggravated Sexual Assault of a Child which is pending in the 42nd District Court of Taylor County, Abilene, Texas. This charge stems from September 2005 where the defendant is accused of forcibly having sexual intercourse with a 13-year-old female over a 9-day period of time. Offense reports reflected the female positively identified the defendant, and the defendant’s defense was that she told him she was 18 years old.

In addition to the information related to this indictment, paragraphs 35-37 of the PSR indicated that Deleon had also recently been indicted for theft by check, theft of service, and assault causing bodily injury in state court. Neither Deleon nor the government objected to this information.

On April 20, 2007, the district court adopted the PSR and sentenced Deleon to fifty-seven months of imprisonment and three years of supervised release. As to the term of imprisonment, the district court ordered that it run consecutively to any sentence which might be imposed in the pending state eases. As to the term of supervised release, the district court imposed special conditions related to sex offenders, including that he participate in a sex offender treatment program, that he not loiter around children, that he not work near children, and that he not date or befriend anyone under the age of eighteen. Deleon did not object to any component of his sentence.

On April 26, 2007, Deleon noted a timely appeal of his conviction and sentence. In addition, on April 27, 2007, Deleon filed a motion to correct his sentence under Federal Rule of Criminal Procedure 35, arguing for the first time that the district court erred in ordering that his sentence run consecutively to any sentences imposed in pending state proceedings and in imposing the special conditions of supervised release related to sex offenders. On May 8, 2007, the district court denied Deleon’s motion. Deleon did not appeal the district court’s order denying his Rule 35 motion.

On March 13, 2008, the government filed an unopposed motion to supplement the record on appeal, which this court granted. The additional information provided that, in Deleon’s aggravated sexual assault of a child case in state court, he pleaded guilty to the lesser-included offense of indecency with a child by contact on March 6, 2008. For this sex offense, the state court sentenced Deleon to seven years of imprisonment and required him to register as a sex offender under Texas Law.

II. DISCUSSION'

Deleon appeals his conviction, arguing that the district court erred in finding a sufficient factual basis to support his guilty plea. Deleon appeals his sentence, claiming that the district court erred by ordering that his sentence run consecutively to yet-to-be-imposed sentences in pending state court proceedings and by imposing sex-offender-related special conditions of supervised release when the underlying conviction was for a non-sexual offense. We address each argument in turn.

A.

Deleon asserts that the district court plainly erred in finding an adequate factual basis to support his guilty plea to being a convicted felon in possession of a firearm because the factual resume failed to show: (1) that his actions had a “substantial effect” on interstate commerce, and (2) that Deleon knew the firearms he possessed were in or affecting interstate commerce. Deleon contends that the interstate com[350] merce requirement necessitates more than the movement of the firearm across state lines at some point in the past and that there must be evidence he knew of the interstate nexus. As Deleon concedes, however, each of these issues is foreclosed by this court’s precedent. See, e.g., United States v. Villegas, 494 F.3d 513, 516 (5th Cir.2007) (per curiam); United States v. Schmidt, 487 F.3d 253, 254-55 (5th Cir.2007); United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.2001); United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir.1988).

B.

Deleon also challenges this court’s prior holding that a district court may order a term of imprisonment to run consecutively to a yet-to-be-imposed state sentence. See United States v. Lopez, 222 Fed Appx. 404, 405 (5th Cir.2007) (per curiam) (unpublished); United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.1991) (per curiam), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.2006). Deleon argues that Brown should be overruled. As Deleon concedes, however, this issue is foreclosed by this court’s precedent.

C.

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