United States v. Garland Johnson

Fifth Circuit

United States v. Garland Johnson

686 F. App'x 279

Court of Appeals for the Fifth Circuit·Decided April 19, 2017·No. 16-10099 Summary Calendar·Unpublished

Opinion

PER CURIAM: *

Garland Scott Johnson pleaded guilty to being a felon in possession of a firearm *280 and was sentenced to 78 months of imprisonment and three years of supervised release. He argues that the district court erred in applying the crime-of-violence enhancement in U.S.S.G. § 2K2.1(a)(4)(A) based on his prior Texas conviction for burglary of a habitation.

More specifically, Johnson argues that Texas Penal Code § 30.02(a) is not divisible. We rejected this argument in United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016), cert. denied, 2017 WL 661924, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (Mar. 20, 2017). Johnson also argues that § 30.02(a) does not constitute generic burglary of a dwelling because it encompasses the burglary of certain vehicles and structures appurtenant to said vehicles. We rejected this argument under plain error review in United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), and recently followed that holding in analyzing a similar Tennessee statute in United States v. Castro-Alfonso, 841 F.3d 292, 297-98 (5th Cir. 2016).

The district court did not err in applying the crime-of-violence enhancement because Johnson was convicted of • violating § 30.02(a)(1) by entering the victim’s habitation with the intent to commit theft, which constitutes generic burglary of a dwelling. See Uribe, 838 F.3d at 671; U.S.S.G. §§ 2K2.1, comment. (n.l), 4B1.2, comment. (n.l) (2015). Moreover, any error was harmless because the district court stated that, even if it incorrectly calculated the guidelines range, it would impose the same sentence based upon its consideration of the 18 U.S.C. § 3553(a) factors, particularly Johnson’s extensive criminal history. See Castro-Alfonso, 841 F.3d at 298-99.

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 *280 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: *

Garland Scott Johnson pleaded guilty to being a felon in possession of a firearm *280 and was sentenced to 78 months of imprisonment and three years of supervised release. He argues that the district court erred in applying the crime-of-violence enhancement in U.S.S.G. § 2K2.1(a)(4)(A) based on his prior Texas conviction for burglary of a habitation.

More specifically, Johnson argues that Texas Penal Code § 30.02(a) is not divisible. We rejected this argument in United States v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016), cert. denied, 2017 WL 661924, — U.S. -, 137 S.Ct. 1359, 197 L.Ed.2d 542 (Mar. 20, 2017). Johnson also argues that § 30.02(a) does not constitute generic burglary of a dwelling because it encompasses the burglary of certain vehicles and structures appurtenant to said vehicles. We rejected this argument under plain error review in United States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005), and recently followed that holding in analyzing a similar Tennessee statute in United States v. Castro-Alfonso, 841 F.3d 292, 297-98 (5th Cir. 2016).

The district court did not err in applying the crime-of-violence enhancement because Johnson was convicted of • violating § 30.02(a)(1) by entering the victim’s habitation with the intent to commit theft, which constitutes generic burglary of a dwelling. See Uribe, 838 F.3d at 671; U.S.S.G. §§ 2K2.1, comment. (n.l), 4B1.2, comment. (n.l) (2015). Moreover, any error was harmless because the district court stated that, even if it incorrectly calculated the guidelines range, it would impose the same sentence based upon its consideration of the 18 U.S.C. § 3553(a) factors, particularly Johnson’s extensive criminal history. See Castro-Alfonso, 841 F.3d at 298-99.

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 *280 published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,

United States v. Garland Johnson, 686 F. App'x 279 (5th Cir. 2017).

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