USA v. Garland Johnson

Filing

UNPUBLISHED OPINION FILED. [16-10099 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 05/10/2017 for Appellant Garland Scott Johnson [16-10099]

Case: 16-10099

Document: 00513958243

Page: 1

Date Filed: 04/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10099
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 19, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARLAND SCOTT JOHNSON,

Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CR-170-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Garland Scott Johnson pleaded guilty to being a felon in possession of a
firearm and was sentenced to 78 months of imprisonment and three years of
supervised release. He argues that the district court erred in applying the
crime-of-violence enhancement in U.S.S.G. § 2K2.1(a)(4)(A) based on his prior
Texas conviction for burglary of a habitation.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-10099

Document: 00513958243

Page: 2

Date Filed: 04/19/2017

No. 16-10099
More specifically, Johnson argues that Texas Penal Code § 30.02(a) is
not divisible. We rejected this argument in United States v. Uribe, 838 F.3d
667, 670-71 (5th Cir. 2016), cert. denied, 2017 WL 661924 (Mar. 20, 2017) (No.
16-7969). Johnson also argues that § 30.02(a) does not constitute generic
burglary of a dwelling because it encompasses the burglary of certain vehicles
and structures appurtenant to said vehicles. We rejected this argument under
plain error review in United States v. Garcia-Mendez, 420 F.3d 454, 456-57
(5th Cir. 2005), and recently followed that holding in analyzing a similar
Tennessee statute in United States v. Castro-Alfonso, 841 F.3d 292, 297-98 (5th
Cir. 2016).
The district court did not err in applying the crime-of-violence
enhancement because Johnson was convicted of violating § 30.02(a)(1) by
entering the victim’s habitation with the intent to commit theft, which
constitutes generic burglary of a dwelling. See Uribe, 838 F.3d at 671; U.S.S.G.
§§ 2K2.1, comment. (n.1), 4B1.2, comment. (n.1) (2015). Moreover, any error
was harmless because the district court stated that, even if it incorrectly
calculated the guidelines range, it would impose the same sentence based upon
its consideration of the 18 U.S.C. § 3553(a) factors, particularly Johnson’s
extensive criminal history. See Castro-Alfonso, 841 F.3d at 298-99.
The judgment of the district court is AFFIRMED.

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