United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 15, 2004
Charles R. Fulbruge III
Clerk
No. 03-10871
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LEE FANNIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-19-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommy Lee Fannin (“Fannin”) appeals the sentence imposed
following his guilty plea conviction for possession of a firearm
by a convicted felon. For the first time on appeal, Fannin
argues that the district court erroneously determined that he was
an armed career criminal because his three previous convictions
for aggravated robbery with a deadly weapon were related under
U.S.S.G. § 4A1.2(a)(2). Fannin additionally argues that the
district court erroneously rejected his testimony at sentencing
*
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that this opinion should not be published and is not precedent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.
No. 03-10871
-2-
and erroneously found that he possessed the firearm in connection
with a controlled substances offense. Fannin further contends
that the district court erred by denying his objections to a two-
level increase assessed pursuant to U.S.S.G. § 2K2.1(b)(4) and a
four-level increase assessed pursuant to U.S.S.G. § 2K2.1(b)(5).
As Fannin’s three prior violent felony offenses were
committed on different occasions, he qualified as an armed career
criminal under 18 U.S.C. § 924(e) regardless whether the prior
convictions were related under U.S.S.G. § 4A1.2, and the district
court did not commit error, plain or otherwise, in so finding.
See United States v. Medina-Gutierrez, 980 F.2d 980, 982-83 (5th
Cir. 1992). The evidence in the record shows that the district
court’s determination that Fannin possessed the firearm in
connection with a controlled substances offense was not clearly
erroneous. See United States v. Vazquez, 161 F.3d 909, 912 (5th
Cir. 1998). The district court’s rejection of Fannin’s testimony
to the contrary is a credibility determination that we will not
disturb on appeal. See United States v. Perez, 217 F.3d 323,
331-32 (5th Cir. 2000). Because the remainder of Fannin’s
arguments concern only offense level increases that did not
affect his guidelines sentencing range as an armed career
criminal under U.S.S.G. § 4B1.4, those arguments are moot. See
United States v. Mankins, 135 F.3d 946, 950 (5th Cir. 1998).
AFFIRMED.