Case: 13-11401 Document: 00512775078 Page: 1 Date Filed: 09/19/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11401 FILED
Summary Calendar September 19, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRANDON DEMOND FEARANCE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-140
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Brandon Demond Fearance appeals the 180-month
sentence imposed following his conviction for possession of a firearm
subsequent to a felony conviction. Fearance was sentenced pursuant to the
provisions of the Armed Career Criminal Act (ACCA) based on Texas
convictions for burglary of a habitation and possession with the intent to
deliver cocaine.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-11401 Document: 00512775078 Page: 2 Date Filed: 09/19/2014
No. 13-11401
Fearance contends that his Texas burglary conviction does not qualify as
a violent felony under the ACCA because the Texas burglary statute
criminalizing burglary of a dwelling is not divisible and includes conduct that
does not constitute a violent felony under the ACCA. Further, he asserts that
his judicial confession is insufficient to narrow the offense to a qualifying form
of burglary.
We review de novo the district court’s “legal conclusions underlying the
district court’s application of the ACCA.” United States v. Fuller, 453 F.3d 274,
278 (5th Cir. 2006). The ACCA subjects a defendant convicted under 18 U.S.C.
§ 922(g) to a minimum sentence of 15 years if he has three prior convictions for
“a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1).
After Fearance filed his initial brief, we issued an opinion in United
States v. Conde-Castaneda, 753 F.3d 172, 176-78 (5th Cir. 2014), wherein we
held that TEXAS PENAL CODE ANN. § 30.02 is divisible and that a written
judicial confession containing an admission to two types of burglary proscribed
in the Texas statute, specifically § 30.02(a)(1) and § 30.02(a)(3), is sufficient to
establish that the defendant was convicted of both offenses. Fearance’s written
judicial confession contained an admission to both § 30.02(a)(1) and
§ 30.02(a)(3). Because § 30.02(a)(1) qualifies as a violent felony under the
ACCA, the district court did not err in ruling that Fearance’s prior Texas
conviction for burglary of a habitation was a violent felony under the ACCA.
See Conde-Castaneda, 753 F.3d at 176; United States v. Silva, 957 F.2d 157,
162 (5th Cir. 1992). In his reply brief, Fearance concedes that this court’s
decision in Conde-Castaneda forecloses his challenge to the classification of his
prior burglary conviction as a violent felony.
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Case: 13-11401 Document: 00512775078 Page: 3 Date Filed: 09/19/2014
No. 13-11401
As for his Texas convictions for possession with the intent to deliver
cocaine, as proscribed by TEXAS HEALTH & SAFETY CODE § 481.112(a),
Fearance asserts that they are not “serious drug offenses” within the meaning
of the ACCA. In light of our holding in United States v. Vickers, 540 F.3d 356,
366 (5th Cir. 2008), the district court did not err in ruling that Fearance’s
Texas convictions under § 481.112 were serious drug offenses for purposes of
the ACCA.
Finally, Fearance seeks remand to allow the district court to impose a
sentence below the statutory minimum, arguing that the district court wished
to give him credit for time served before the imposition of his sentence but
mistakenly believed it could not reduce the term in the judgment below the
mandatory minimum provided by the statute. He cites no authority to
establish any error by the district court in failing to impose a sentence below
the mandatory minimum. As Fearance cannot show any error in the
imposition of his sentence, he has no basis for urging that his case should be
remanded for resentencing.
The judgment of the district court is AFFIRMED.
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