United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-50948
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NIGUEL DESHON HOLDER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-15-ALL
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Niguel Deshon Holder appeals from his guilty-plea conviction
and sentence for being a felon in possession of a firearm. For
the first time in his reply brief, Holder has raised arguments
based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), and
Crawford v. Washington, 124 S. Ct. 1354 (2004). The Government
has filed a motion to strike Holder’s reply brief. Holder has
responded by filing a motion for this court to consider the new
arguments raised in his reply brief or, in the alternative, for
*
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this opinion should not be published and is not precedent except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. 03-50948
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leave to file a supplemental brief raising these new arguments.
We interpret Holder’s motion as a request to construe his reply
brief as a supplement brief, and that motion is GRANTED. All
other outstanding motions, including the Government’s motion to
strike the reply brief, are DENIED.
In his initial appeal brief, Holder argues that the district
court erred by applying a two-level adjustment to his sentence
pursuant to U.S.S.G. § 2K2.1(b)(4) for possessing a firearm with
an obliterated serial number because his possession of that
firearm did not constitute relevant conduct. This court reviews
a challenge to the district court’s interpretation and
application of the Sentencing Guidelines de novo. United States
v. Carbajal, 290 F.3d 277, 282-83 (5th Cir. 2002). The district
court’s factual findings are reviewed for clear error. Id.
Based upon the district court’s factual findings regarding the
incident in which Holder possessed the firearm with an
obliterated serial number, application of U.S.S.G. § 2K2.1(b)(4)
was proper because Holder’s possession of that firearm was part
of the same course of conduct as his offense of conviction.
Holder also contends that the district court erred by
departing upwardly from the Sentencing Guidelines due to the fact
that he discharged his firearm and that such discharge resulted
in the death of another individual. Pursuant to the PROTECT Act,
this court must conduct a de novo review of the district court’s
decision to depart. United States v. Bell II, 371 F.3d 239, 243
No. 03-50948
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(5th Cir. 2004). Examination of the district court’s statement
of reasons shows that the district court’s decision to depart
upwardly was proper under the relevant criteria. As Holder has
not challenged the extent of the upward departure, that issue has
been waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993)(issues not raised in appellate brief are deemed
abandoned).
Holder also argues that his sentence is invalid under
Blakely. In United States v. Pineiro, __ F.3d __ (5th Cir. July
12, 2004, No. 03-30437), 2004 WL 1543170 at *1, this court held
that the Supreme Court’s holding in Blakely was not applicable to
the Sentencing Guidelines. Accordingly, Holder’s Blakely
argument is foreclosed by Pineiro.
Holder further contends that, under Crawford, his
Confrontation Clause right was violated during his sentencing
proceeding. Crawford involved a defendant’s right under the
Confrontation Clause during his criminal trial. 124 S. Ct. at
1356-58. “[T]here is no Confrontation Clause right at
sentencing.” United States v. Navarro, 169 F.3d 228, 236 (5th
Cir. 1999) (citation omitted). Nothing in Crawford indicates
that its holding is applicable to sentencing proceedings.
Accordingly, Holder’s Crawford-based argument lacks merit.
The district court’s judgment of conviction is AFFIRMED.
No. 03-50948
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MOTION TO CONSTRUE APPELLANT’S REPLY BRIEF AS A SUPPLEMENTAL
BRIEF GRANTED; ALL OTHER OUTSTANDING MOTIONS DENIED; JUDGMENT
AFFIRMED.