USA v. Jerely Birdow

Filing

USA v. Jerely Birdow

Doc. 0

Case: 09-40737

Document: 00511170864

Page: 1

Date Filed: 07/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40737 S u m m a r y Calendar July 13, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. J E R E L Y LEE BIRDOW, also known as Jerbly Lee Birdow, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:06-CR-282-1

B e fo r e GARWOOD, DENNIS, and ELROD, Circuit Judges. P E R CURIAM:* J e r e ly Lee Birdow appeals from the 405-month sentence imposed following h is conviction for being a felon in possession of a firearm. Birdow argues that t h e district court erred by (1) applying 18 U.S.C. § 924(e) because his prior c o n v ic t io n for assault on a public servant did not constitute a violent felony 1 and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. This was a single prior judgment which convicted Birdow for two separate assaults on a public servant, each committed on a separate occasion from the other. Birdow also had (among other prior convictions) a prior conviction for burglary of a habitation (a violent felony).
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Case: 09-40737

Document: 00511170864 Page: 2 No. 09-40737

Date Filed: 07/13/2010

(2 ) cross-referencing to U.S.S.G. § 2A3.1 because he did not possess the firearm in connection with the commission of an aggravated sexual assault. The

G o v e r n m e n t counters that Birdow's claims are barred by the waiver provision c o n t a in e d in his plea agreement providing, inter alia, that Birdow waives his r ig h t to appeal his sentence unless it exceeds the statutory maximum or results fr o m his having received ineffective assistance of counsel (he makes no claim of t h e latter). B ir d o w characterizes both of his arguments on appeal as one challenging h is sentence as one that exceeds the statutory maximum. E.g., Blue Brief at 6. However, both of Birdow's issues on appeal contest the district court's c a lc u la t io n of the sentencing guidelines. The Supreme Court has decided that t h e guidelines are not mandatory. See United States v. Booker, 125 S. Ct. 738, 7 6 4 ­ 6 8 (2005). Because the guidelines are advisory, they do not create a

s t a t u t o r y maximum that Birdow can appeal. I n any event, we need not decide whether this appellate briefing bars B ir d o w 's § 924(e) claim because it is meritless. See United States v. Story, 439 F .3 d 226, 230 (5th Cir. 2006) (holding that waivers are not jurisdictional). We r e v ie w the legal conclusions underlying a district court's application of § 924(e) d e novo. See United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). A c o n v ic t io n for assault on a public servant pursuant to TEX. PEN. CODE § 22.01(b) c o n s t it u t e s a crime of violence pursuant to U.S.S.G. § 4B1.2(a). See United S ta te s v. Anderson, 559 F.3d 348, 355-56 (5th Cir.),2 cert. denied, 129 S.Ct. 2814

Birdow also argues in his brief that United States v. Fierro-Reyna, 466 F.3d 324 (5th Cir. 2006), suggests that the rule in Anderson is not a per se rule holding that all convictions under § 22.01 are crimes of violence. Unlike Fierro-Reyna, but like Anderson, the instant case involves a § 22.01(b) conviction as a crime of violence pursuant to U.S. SENTENCING GU I D E L I N E S § 4B1.2(a). Fierro-Reyna involved a question of whether an assault was a crime of violence under U.S. SENTENCING GUIDELINES § 2L1.2. Fierro-Reyna, 466 F.3d at 326. The Anderson court specifically addressed the differences between guidelines section 4B1.2 and 2L1.2 in deciding that a § 22.01(b) conviction would be a crime of violence purusant to guidelines section 4B1.2.

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Case: 09-40737

Document: 00511170864 Page: 3 No. 09-40737

Date Filed: 07/13/2010

(2 0 0 9 ); United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir.), cert. denied, 130 S . Ct. 56 (2009) (noting that this court has applied case law under the residual c la u s e of § 924(e) to analyze the definition of crime of violence under § 4B1.2, a n d vice versa).3 Although Birdow argues that Anderson was wrongly decided, w e may not overrule it without en banc reconsideration or a superseding con tra ry Supreme Court decision. See Martinez-Lopez v. Gonzales, 454 F.3d 500, 5 0 2 n. 1 (5th Cir. 2006). Applying the Anderson definition, we hold that Birdow's c o n v ic t io n for assault on a public servant contrary to TEX. PEN. CODE § 2 2 .0 1 (b )(1 ) was a violent felony for purposes of section 924(e). Because Birdow's s t a t u t o r y maximum sentence was life in prison pursuant to § 924(e), his a r g u m e n t regarding the cross-reference to §2A3.1 is barred by the plea a g r e e m e n t waiver, as his sentence does not exceed the statutory maximum. See U n ite d States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005); United States v. M e la n c o n , 972 F.2d 566, 567­68 (5th Cir. 1992). We AFFIRM. A F F IR M E D

As we also noted in Mohr, `[t]he definition of violent felony [in § 924(3)] is identical to that of `crime of violence' in the Guidelines context." Id. at 609.

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