United States v. Jeanise

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2004
• Docket: 95-40052
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-40052 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE EDWIN JEANISE,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:93 CR 99 1) _________________________________________________________________ August 10, 1995

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

Appellant Jeanise pleaded guilty to possession of a fire-

arm by a convicted felon and was sentenced to imprisonment for 100

months, followed by three years supervised release. On appeal, he

asserts two errors in the district court's calculation of his

sentence. We affirm.

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. First, Jeanise contends that his three prior convictions

for burglary of a habitation should have been treated as related

offenses pursuant to U.S.S.G. § 4A1.2(a)(2). In such event, they

would have received three criminal history points rather than the

nine assessed by the district court. Prior sentences are

considered related according to this guideline if they resulted

from offenses that occurred on the same occasion, were part of a

common scheme or plan, or were consolidated for trial or

sentencing. They are not considered related if the offense conduct

was separated by an intervening arrest. Section 4A1.2, comment 3.

Jeanise's first burglary took place July 18, 1977, and he was

arrested for it. The second and third burglaries occurred on

September 15, 1977 and May 8, 1978, and he was arrested for both on

September 1, 1978. Because of the intervening arrest, the first

offense cannot be considered related. And it is fruitless to

assert that the second and third offenses were "part of a common

scheme or plan". A relatedness finding requires more than mere

similarity of crimes. United States v. Garcia, 962 F.2d 479, 482

(5th Cir.), cert. denied, 113 S. Ct. 293 (1992). Further, state

court records show the burglaries were not consolidated for trial

or sentence.

Second, Jeanise argues that the district court erred in

finding that he possessed a prohibited firearm pursuant to section

2K2.1(a)(1), because he did not know that the barrel of the shotgun

he had was less than 18 inches long. In United States v. Fry, 51

F.3d 543, 546 (5th Cir. 1995), this court concluded that section

2 2K2.1(a)(3), which sets the base offense level for a one-time felon

for possession of a firearm listed in 26 U.S.C. § 5845(a), did not

require a finding of knowledge about the characteristics of the

firearm. By the same reasoning, the related section applicable to

Jeanise's sentence also lacks reference to a mental state.

Consequently, Jeanise's alleged ignorance that the shotgun barrel

was less than 18 inches long is irrelevant to this sentencing

provision.

The sentence imposed by the district court is AFFIRMED.