875 F.2d 1110 (5th Cir. 1989), 88-1566, United States v. Flores
|Citation:||875 F.2d 1110|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Abraham Rodriguez FLORES, Defendant-Appellant.|
|Case Date:||June 09, 1989|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Mike Brown, Lubbock, Tex. (Court-Appointed), for defendant-appellant.
Steven M. Sucsy, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Lubbock, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before WISDOM, KING and WILLIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Following his conviction for knowingly and intentionally distributing heroin, Abraham Flores appeals only the sentence he received. First, he claims that the United States Sentencing Guidelines should not have been used to determine his sentence because they are unconstitutional. In the alternative, he claims that the Guidelines were imposed incorrectly. We find however that the district court correctly applied the Guidelines, and we affirm.
I. Facts and Prior Proceeding
On November 20, 1987, a confidential informant working for the Drug Enforcement Administration Task Force met with Abraham Flores to purchase heroin. In exchange for $700, Flores gave the informant 2.5 grams of 54% pure heroin. Out of the exchange, Flores was indicted for knowingly and intentionally distributing heroin in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Flores pleaded guilty to the charge on May 12, 1988. 1
Flores was sentenced to a 240 month prison term and to a five year term of supervised release. The district court based this sentence upon a finding under the Guidelines that Flores was a "career offender," that he had in the past engaged in an extensive pattern of criminal conduct, that he associated with others who had been convicted of similar drug charges, and that he had a propensity to commit further offenses if not incarcerated. The court relied on six previous burglary convictions in finding Flores a "career offender."
II. Constitutionality of the Federal Sentencing Guidelines
Appellant's claim of the unconstitutionality of the Sentencing Guidelines has been resolved against him. The Guidelines were declared constitutional in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
III. Computation of Flores' Sentence Under the Sentencing
Appellant Flores argues that he does not fit within the definition under the Guidelines of a "career offender." His argument centers around the court's use of his six prior convictions for burglary. He argues that the court improperly relied on the pre-sentence report in concluding the burglaries were of residences and as such were "crimes of violence." Further, he argues that the burglaries are "related" so that they should have been counted as one for purposes of sentencing by the district court.
A "career offender" within the meaning of the Guidelines is defined in Section 4B1.1:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
On appeal, Flores disputes whether the third requirement of Sec. 4B1.1 was met, arguing that the district court incorrectly relied on six prior burglary convictions as the requisite prior "crimes of violence." He further argues that even if the burglaries were properly characterized as crimes of violence, they were in "related cases" so that they should have been treated as one for purposes of his sentencing under the Guidelines.
The Prior Burglaries as Crimes of Violence
The record reflects that prior to this offense, Flores had been convicted of six
burglaries of private residences under the Former Texas Penal Code of 1925. 2 We must look to the definitions under the 1925 Code to determine whether these convictions...
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