United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 11, 2004
Charles R. Fulbruge III
Clerk
No. 04-10254
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY LAMONT AUSTIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-256-ALL-A
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gregory Lamont Austin appeals his sentence for his guilty-
plea conviction of being a felon in possession of a firearm.
Austin argues that the district court clearly erred in finding
that his sentence should be enhanced by three levels because
police officers were deemed to be official victims of his
possession of the firearm under U.S.S.G. § 3A1.2(b). In
particular, he argues that the district court erroneously found
that Austin knew it was the police and not a burglar when he
fired the gun.
*
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that this opinion should not be published and is not precedent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. 04-10254
-2-
The district court did not clearly err when it applied the
three-level enhancement. See United States v. Polk, 118 F.3d
286, 297 (5th Cir. 1997). Two officers testified that all of the
officers present “yelled” to announce their presence as they were
battering Austin’s door down. Although Austin argued that he
could not have been expected to hear the officers’ announcement
because a television was on in the back bedroom, the district
court chose instead to credit the officers’ testimony regarding
the loudness of their announcement. To do so was not clear
error. See Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 574 (1985).
Austin also argues that the district court committed plain
error in enhancing his sentence based on findings not alleged in
the indictment, proven to a jury, or proven beyond a reasonable
doubt in violation of Blakely v. Washington, 124 S. Ct. 2531
(2004). As Austin acknowledges, this issue is foreclosed by
United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004),
petition for cert. filed, (U.S. July 14, 2004), in which this
court held “that Blakely does not extend to the federal
Guidelines.” The judgment of the district court is AFFIRMED.