United States v. Holley

689 F. App'x 230

Opinion

PER CURIAM:

Footnotes

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Christopher Holley appeals the consecutive 120-month sentences imposed following his guilty plea to two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The presentence investigation report (PSR) recommended enhancements under the advisory Sentencing Guidelines for, inter alia, Holley’s prior Texas attempted-murder conviction as a crime of violence under Guideline § 4B1.2(a)(2). At sentencing, Holley asserted his attempted-murder conviction did not constitute a crime of violence and the Guideline was unconstitutionally vague. Over his objection, the court adopted the PSR’s recommendation.

Although posirBooker, the Sentencing Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse-of-discretion standard. Id. , 128 S.Ct. 586; United States v. Delgado-Martinez, 564 F.3d 750, 751-53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

On appeal, Holley claims the residual clause of Guideline § 4B1.2(a)(2) is unconstitutionally vague in the light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). After Holley’s brief was filed here, however, the Supreme Court foreclosed this issue, holding “the Guidelines are not amenable to a vagueness challenge”. Beckles v. United States, — U.S. -, 137 S.Ct. 886, 894, 197 L.Ed.2d 145 (2017).

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.