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United States v. Flores

United States Court of Appeals, Fifth Circuit

April 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
ADAM ALFREDO FLORES, also known as Adam Flores, Defendant-Appellant

          Appeals from the United States District Court for the Southern District of Texas.

          Before HAYNES, GRAVES, and HO, Circuit Judges.

          PER CURIAM.

         Defendant Adam Alfredo Flores appeals the district court's determination that he was subject to an enhanced mandatory minimum sentence of fifteen years under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Flores also appeals his base offense level calculation under U.S.S.G. § 2K2.1. We VACATE the sentence and REMAND for a resentencing.[1]

         I. Background

         In February 2018, Flores pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The following criminal history is relevant to calculating his sentencing guideline range. In 1996, at age 15, Flores was adjudicated a juvenile delinquent for aggravated assault with a firearm and sentenced to incarceration with the Texas Youth Commission. On February 12, 2003, Flores pleaded guilty in Texas state court to aggravated robbery and aggravated assault causing bodily injury stemming from an incident on May 6, 2002 (Cause No. 02-CR-2120-D). That same day, Flores also pleaded guilty to aggravated assault with a deadly weapon stemming from an incident that occurred on July 14, 2002 (Cause No. 02-CR-3450-D).

         Because Flores violated 18 U.S.C. § 922(g)(1) and had at least two prior felony convictions for a crime of violence, Flores's base offense level was 24. See U.S.S.G § 2K2.1. The presentence report (PSR) determined, however, that Flores's two adult convictions and juvenile conviction subjected him to a statutory ACCA enhancement as an armed career criminal because Flores had three prior convictions for "violent felonies," raising his base offense level to 33. See U.S.S.G § 4B1.4. Considering his three-level reduction for acceptance of responsibility and criminal history category V, the total offense level of 30 resulted in a guideline range of 151 to 188 months. Because the mandatory minimum sentence for an armed career criminal under ACCA is fifteen years in prison, his guideline range increased to 180-188 months. Flores raised two objections to the PSR. First, he argued he was not subject to the ACCA mandatory minimum and an enhanced guideline level. Second, he argued his unenhanced base offense level under U.S.S.G § 2K2.1 was incorrectly calculated. The district court overruled Flores's objections, agreed with the PSR, and sentenced Flores to 180 months in prison. Flores filed a timely appeal and makes the same arguments he made in the district court.

         II. Discussion

         A. ACCA Enhancement

         Flores first argues his juvenile adjudication for Texas aggravated assault is not a "violent felony" for the purposes of an ACCA sentence enhancement.[2]We review the district court's determination that a prior conviction qualifies as a "violent felony" under ACCA de novo. United States v. Massey, 858 F.3d 380, 382 (5th Cir. 2017).

         A defendant convicted of violating 18 U.S.C. § 922(g)(1) is subject to a maximum of ten years in prison. See 18 U.S.C. § 924(a)(2). Under ACCA, however, the penalty is increased to a minimum of fifteen years if the defendant has "three previous convictions . . . for a violent felony." 18 U.S.C. § 924(e)(1). A "violent felony" is defined as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Thus, a juvenile adjudication may qualify as an ACCA predicate offense only if it meets the requirements of subsection (i) or (ii) and involves the use or carrying of a knife, firearm, or destructive device.

         To determine whether a prior conviction qualifies as a violent felony under ACCA, we traditionally apply the "categorical approach." Descamps v. United States, 570 U.S. 254, 257 (2013). This approach "examine[s] the elements of the offense, rather than the facts underlying the conviction or the defendant's actual conduct, to determine whether the enhancement applies." United States v. Rodriguez-Negrete, 772 F.3d 221, 225 (5th Cir. 2014) (quoting United States v. Teran-Salas, 767 F.3d 453, 458 (5th Cir. 2014)). If "the elements of the statute forming the basis of the defendant's conviction . . . are the same as, or narrower than, those of the generic offense[, ]" then there is a categorical match and the enhancement is proper. Descamps, 570 U.S. at 257. ...


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