United States v. Kimbrell

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 26, 2021
• Docket: 20-10751
• Status: Unpublished

Opinion

Case: 20-10751 Document: 00515837155 Page: 1 Date Filed: 04/26/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED April 26, 2021 No. 20-10751 Lyle W. Cayce Clerk

United States of America, Plaintiff—Appellee,

versus

Trey Craig Kimbrell, Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas No. 5:19-CR-101-1

Before Smith, Stewart, and Ho, Circuit Judges. Per Curiam:* Trey Kimbrell pleaded guilty of being a convicted felon unlawfully in possession of a firearm and was sentenced, at the top of the guideline range, to 37 months’ imprisonment. Kimbrell appeals the guideline calculation. He contends that the district court erred when it assessed a criminal history point under U.S.S.G. § 4A1.1(c) for a 2017 burglary charge that was disposed of under Texas Penal Code § 12.45. Specifically, Kimbrell avers that a disposi- tion under § 12.45 is not a “conviction” for purposes of U.S.S.G.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-10751 Document: 00515837155 Page: 2 Date Filed: 04/26/2021

No. 20-10751

§ 4A1.2(a)(4), so that disposition did not yield a “prior sentence” justifying the assessment of a criminal history point. That is a question of law, which we review de novo. United States v. Valdez-Valdez, 143 F.3d 196, 197–98 (5th Cir. 1998). Kimbrell asserts that the “only” issue is “whether an unadjudicated Texas offense disposed of via Tex. Pen. Code § 12.45 constitutes a ‘con- viction’ for the purposes of U.S.S.G. § 4A1.2(a)(4).” But that argument mis- construes the district court’s ruling. The record reflects that the court adopted the government’s theory that a criminal history point was assessed correctly under U.S.S.G. § 4A1.2(f). Thus, the court concluded that the bur- glary charge disposed of under § 12.45 was a “diversionary disposition result- ing from a finding or admission of guilt” and assessed a criminal history point accordingly. U.S.S.G. §§ 4A1.1(c), 4A1.2(f). Kimbrell fails to address that conclusion at all, much less engage with “the district court’s reasoning . . . or explain how [its] rationale was errone- ous.” Thompson v. Bank of Am. Nat’l Ass’n, 783 F.3d 1022, 1027 (5th Cir. 2015). Accordingly, he has forfeited the only issue on appeal. See id.; Fed. R. App. P. 28(a)(8)(A) (“The appellant’s brief must contain . . . the argu- ment, which [in turn] must contain[ ] appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]”).1 AFFIRMED.

1 Although we “ha[ve] the discretion to consider inadequately briefed claims,” Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019), we opt not to do so here. The issue properly on appeal is whether a charge disposed of per § 12.45 constitutes a diver- sionary disposition for purposes of U.S.S.G. § 4A1.2(f). That is an important res nova issue that we decline to address without the benefit of adversarial briefing. See Kaley v. United States, 571 U.S. 320, 338 (2014) (“[T]he adversarial process leads to better, more accurate decision-making.”).