United States v. Guerrero

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2000
• Docket: 99-10990
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10990 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRED ZAPATA GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:98-CR-80-2 -------------------- June 13, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Fred Zapata Guerrero appeals his sentence following a

guilty-plea conviction for possession of stolen firearms in

violation of 18 U.S.C. §§ 922(j) and 924(a)(2).

This court reviews the sentencing judge’s application of the

sentencing guidelines de novo and accepts the sentencing judge’s

findings of fact unless they are clearly erroneous. United

States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).

Guerrero argues that a 1988 aggravated-assault offense

should not be used to calculate his base offense level under

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10990 -2-

U.S.S.G. § 2K2.1 because he was given deferred adjudication for

the offense. He argues that, because the deferred adjudication

has not been finally adjudicated, it should not be counted as a

conviction under § 2K2.1. We have previously determined that a

deferred adjudication can be used when calculating a defendant’s

base offense level under § 2K2.1. United States v. Stauder, 73

F.3d 56, 57 (5th Cir. 1996).

Guerrero admits that he is aware of Stauder, but he urges

this court to overrule its opinion in that case. One panel of

this court may not overrule the decision of a prior panel in the

absence of an intervening contrary or superseding decision by

this court sitting en banc or by the United States Supreme Court.

Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.

1999). Therefore, Guerrero’s request that this court revisit the

decision in Stauder is without merit, and the judgment of the

district court is AFFIRMED.