     Case: 13-20058      Document: 00512472749         Page: 1    Date Filed: 12/17/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 13-20058                         December 17, 2013
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

EUGENE THOMAS HOOVER, III,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-889-1


Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Eugene Thomas Hoover, III, proceeding in forma pauperis, appeals his
guilty-plea conviction and sentence for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1).
       Regarding his conviction, Hoover maintains 18 U.S.C. § 922(g)(1) is
unconstitutional on its face, and as applied to him, because the Commerce
Clause does not authorize Congress to criminalize purely local possession of a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20058     Document: 00512472749     Page: 2   Date Filed: 12/17/2013


                                  No. 13-20058

firearm merely because it was shipped or transported in interstate commerce
at some point in the past. He concedes this claim is foreclosed by United States
v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), and raises it only to preserve
it for possible further review.
      Concerning Hoover’s numerous challenges to his sentence, and although
post-Booker, the Sentencing Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the Guidelines-sentencing range for use in deciding on the sentence
to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that respect,
for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). As with his challenge to his
conviction, Hoover concedes that several of his challenges to his sentence are
also foreclosed.
      First, Hoover asserts the district court erred in determining his prior
conviction for burglary of a habitation with intent to commit theft under Texas
Penal Code § 30.02(a) was a violent felony for purposes of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). He contends the indictment charged
him with the burglary offense in a manner incorporating Texas’ unique
“greater right of possession” theory and that this overly broad definition of
burglary is not a generic burglary under the ACCA. Hoover concedes this claim
is foreclosed by United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.),
cert. denied, 133 S. Ct. 2374 (2013), but he raises it to preserve it for possible
further review.




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                                  No. 13-20058

      Second, Hoover contends the court erred in determining his prior
conviction for evading arrest with a motor vehicle under Texas Penal Code
§ 38.04(a) was a violent felony for purposes of the ACCA. In United States v.
Harrimon, our court held that Texas offense was a violent felony under the
ACCA because “fleeing by vehicle poses a serious risk of injury to others”. 568
F.3d 531, 536 (5th Cir. 2009). The Supreme Court, in Sykes v. United States,
subsequently held an Indiana conviction for resisting law enforcement through
felonious vehicle flight was a violent felony under the ACCA’s residual clause,
§ 924(e)(2)(B)(ii). 131 S. Ct. 2267, 2272, 2277 (2011) (noting the Court’s decision
is consistent with Harrimon). And, our court has held Sykes did not overrule
Harrimon, either explicitly or implicitly. E.g., United States v. Standberry, ___
F. App’x ___, 2013 WL 5976454, at *1 (5th Cir. 23 April 2013) (holding Sykes’
focus on use of motor vehicle did not overrule Harrimon). Therefore, we are
bound by Harrimon. United States v. Holston, 471 F. App’x 308, 309 (5th Cir.
2012). Thus, the district court did not err in determining Hoover’s evading-
arrest-with-a-motor-vehicle conviction was a violent felony.
      Third, because the factual basis for ACCA sentencing enhancements was
used to raise the statutory maximum sentence applicable to him, Hoover
asserts these facts must be charged in the indictment and either proved to a
jury or admitted by him. Hoover concedes this claim is foreclosed, and raises
it only to preserve it for possible further review. See James v. United States,
550 U.S. 192, 213-14, n.8 (2007) (holding categorical approach to determine
whether a prior conviction qualifies as a violent felony for ACCA purposes
“raises no Sixth Amendment issue”); see also United States v. White, 465 F.3d
250, 254 (5th Cir. 2006) (“‘[N]either the [ACCA] nor the Constitution requires
a jury finding on the existence of the three previous felony convictions required
for the enhancement’”.) (citation omitted).



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                                 No. 13-20058

      Fourth, Hoover claims §§ 924(e)(1) and (e)(2)(B)(ii) (the residual clause),
which provide for a sentence enhancement on a prior conviction that
“otherwise involves conduct that presents a serious potential risk of physical
injury to another” are unconstitutionally void for vagueness. In James, the
Supreme Court observed this residual clause “is not so indefinite as to prevent
an ordinary person from understanding what conduct it prohibits”. James, 550
U.S. at 210 n.6 (citation omitted). Therefore, Hoover’s claim is foreclosed by
James. United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011).
      AFFIRMED.




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