United States v. Guardiola

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 7, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40837
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL GUARDIOLA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(2:05-CR-599-ALL)
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Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Michael Guardiola pleaded guilty to one
count of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1). The presentence investigation report
(“PSR”) recommended a base offense level of thirty-three, because,
inter alia, Guardiola previously had been convicted of aggravated
robbery four times in Texas state court. After he received a
three-level adjustment for acceptance of responsibility,
Guardiola's total offense level was thirty. This offense level,
combined with a Category VI criminal history score, resulted in a

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1 18 U.S.C. § 924(e).
2 Guardiola has abandoned this argument on appeal, but the
government notes that each of Guardiola’s four aggravated
robberies involved different victims and occurred at different
locations at different times.
2
guideline sentencing range of 180 to 210 months. The PSR also
determined that Guardiola’s previous aggravated robbery convictions
qualified him for the statutory minimum 180-month sentence under
the Armed Career Criminal Act (“ACCA”).1
At the sentencing hearing, Guardiola objected to the ACCA
enhancement on the ground that his four aggravated robbery
convictions should be considered as one transaction or occurrence.2
The district court overruled Guardiola’s objection. After granting
the government’s motion for a one-year downward departure based on
Guardiola’s substantial assistance, the district court sentenced
Guardiola to 168 months of imprisonment and five years of
supervised release. Guardiola timely appealed.
For the first time on appeal, Guardiola contends that the
district court erred in considering his prior aggravated robbery
convictions as predicate offenses under the ACCA, because (1) he
met the definition of “juvenile” under 18 U.S.C. § 5031 at the time
he was convicted of those crimes, and (2) convictions of persons
meeting the federal definition of a juvenile should not be counted
as predicate offenses under the ACCA. We disagree.

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3 See United States v. McGilberry, 480 F.3d 326, 328 (5th
Cir. 2007).
4 Id. at 329.
5 Id. (citations omitted).
6 In Texas, the juvenile court has exclusive jurisdiction
over children sixteen years of age and younger. Tex. Fam. Code §
51.02(2). The juvenile court may waive jurisdiction and transfer
a case to a district court for criminal proceedings if the child
is alleged to have committed a first-degree felony and was
fourteen years of age at the time of the alleged offense. §
54.02(a)(2). Such a waiver is contingent upon the juvenile
court’s full evaluation of the circumstances surrounding the
alleged offense. §§ 54.02(a),(f).
3
As Guardiola did not raise this issue in the district court,
we review his sentence for plain error.3 Under the plain error
standard, Guardiola must show that (1) there was error, (2) the
error is clear or obvious, and (3) the error affects his
substantial rights.4 Even if the appellant makes such a showing,
we will correct the error only when it “seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.”5 In this case, we conclude that the district court
committed no error, plain or otherwise, in considering Guardiola’s
aggravated robbery convictions as predicate offenses under the
ACCA.
Texas law authorizes the juvenile court to waive its
jurisdiction and allow juveniles to be tried as adults for first-
degree felonies.6 Guardiola was tried as an adult and convicted of
aggravated robbery in Texas state court. Guardiola contends that,
for purposes of sentencing in federal court, the federal definition

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7 18 U.S.C. § 924(e)(1).
8 § 924(e)(2)(B)(ii).
9 § 924(e)(2)(C).
10 See Tex. Penal Code § 29.03 (aggravated robbery involves
a “deadly weapon” and is a first-degree felony); Tex. Penal Code
4
of a “juvenile” should prevail over Texas’s determination to try
him as an adult. In essence, Guardiola argues that his state
aggravated robbery convictions should have been treated as juvenile
offenses for federal sentencing purposes and not first-degree
felonies. Given the nature of Guardiola’s offense, however, it is
irrelevant to our analysis whether he was convicted as an adult or
as a juvenile.
A defendant is subject to the ACCA if he or she “violates
section 922(g) of this title and has three previous convictions by
any court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another.”7 “[T]he term ‘violent
felony’ means 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 ... is burglary.”8 “[T]he term ‘conviction’
includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.”9 Aggravated robbery
constitutes a violent felony within the meaning of § 924(e)(2)(b),10

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§ 29.03 (first-degree felonies punishable not less than five
years imprisonment); see also, e.g., United States v. Munoz, 150
F.3d 401, 419 (5th Cir. 1998).
5
and, as noted earlier, each of Guardiola’s four aggravated
robberies involved different victims and occurred at different
locations at different times. Consequently, under the plain
language of the ACCA, Guardiola’s offenses qualify as prior
convictions even though he was a juvenile when he committed them.
For the foregoing reasons, Guardiola’s sentence is, in all
respects,
AFFIRMED.

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