     Case: 09-31167 Document: 00511460154 Page: 1 Date Filed: 04/28/2011




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

                                                 FILED
                                                                            April 28, 2011

                                       No. 09-31167                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

HENRY L. MYLES

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                       for the Western District of Louisiana
                                   09-CR-35-01


Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Henry Myles pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the
district court applied the base offense level pursuant to U NITED S TATES
S ENTENCING G UIDELINES (U.S.S.G.) § 2K2.1(a)(2) (2008), which applies to
defendants who have at least two prior felony convictions for crimes of violence.
Myles now appeals his sentence of 92 months, arguing that the district court
committed plain error by relying solely on the Presentence Report (PSR) to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31167 Document: 00511460154 Page: 2 Date Filed: 04/28/2011



                                   No. 09-31167

determine that his prior felony conviction for simple burglary of an inhabited
dwelling qualified as a crime of violence (COV). For the following reasons, we
affirm Myles’s sentence.
                                    I. FACTS
      U.S.S.G. § 2K2.1(a) provides incremental offense levels that are triggered
by a defendant’s prior convictions that qualify as COV or drug trafficking
offenses. United States v. McCann, 613 F.3d 486, 502 (5th Cir. 2010). Thus,
section 2K2.1(a)(2) provides a base offense level of 24 if the defendant has two
felony COV convictions. See § 2K2.1(a)(2). “Crime of violence” is defined as “any
offense under federal or state law, punishable by imprisonment for a term
exceeding one year” that:
      (1) has as an element the use, attempted use, or threatened use of
      physical force against the person of another, or

      (2) is burglary of a dwelling, arson, or extortion, involves use of
      explosives, or otherwise involves conduct that presents a serious
      potential risk of physical injury to another.

§ 4B1.2(a); § 2K2.1, cmt. (n.1).
      Pursuant to § 2K2.1(a)(2 ), the PSR placed Myles’s base offense level at 24
due to his prior Louisiana convictions for “aggravated battery” and “simple
burglary of an inhabited dwelling,” which it characterized as COVs. After
making additional adjustments not relevant to this appeal, Myles’s offense level
was set at 25 with a criminal history category of VI, producing a guideline range
of 92-120 months.
      Although the stipulation of facts characterized Myles’s prior burglary
conviction as “simple burglary,” he did not object to the PSR’s determination that
he had prior Louisiana convictions for aggravated battery and simple burglary
of an inhabited dwelling, both of which qualified as COV convictions. The




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                                  No. 09-31167

district court denied Myles’s request for a downward departure by sentencing
him within the guidelines range to 92 months of imprisonment.
                                II. DISCUSSION
      The only issue presented by this appeal is the propriety of the district
court’s determination that Myles’s burglary conviction qualified as a COV.
Myles asserts that the district court plainly erred in its determination that his
Louisiana conviction of simple burglary of an inhabited dwelling was a
qualifying COV conviction because the district court relied solely on information
set forth in the PSR to support its determination.        Myles argues that the
Louisiana crime of simple burglary of an inhabited dwelling is not a qualifying
COV because the offense may be committed even if no one is present at the time
of the unauthorized entry, thus removing any element of force or potential risk
of injury. Myles further argues that the district court was obligated under
Shepard v. United States, 544 U.S. 13 (2005), and Fifth Circuit authority
interpreting Shepard, to look beyond the PSR to determine whether his prior
conviction was a COV.
      Myles did not object to the PSR’s description of his conviction as “simple
burglary of an inhabited dwelling,” and his brief to us does not object to this
description of his offense. In fact, Myles’s brief uses the terms “simple burglary”
and “simple burglary of an inhabited dwelling” interchangeably, and in
addressing the conviction, he affirmatively represents that he was convicted of
“simple burglary of an inhabited dwelling” under L A. R EV. S TAT. A NN. 14:62.2.
Therefore, as Myles did not dispute in the district court the PSR’s determination
that he was convicted of simple burglary of an inhabited dwelling, and he does
not dispute this determination in his brief to this court, he has not preserved a
claim that his burglary conviction was for any crime other than a violation of L A.
R EV. S TAT. A NN. 14:62.2, simple burglary of an inhabited dwelling. See United



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                                   No. 09-31167

States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.), cert. denied, 131 S. Ct. 158
(2010).
      Because Myles does not argue that the district court erred in determining
that his prior Louisiana conviction of aggravated battery qualified as a COV
conviction that warranted application of § 2K2.1(a)(2), he has also abandoned
any challenge to that determination. See id.
                              A. Standard of Review
      Because Myles did not raise an objection to the district court’s exclusive
reliance on the PSR at sentencing, we review for plain error. McCann, 613 F.3d
at 502. “Plain error exists where (1) there was an error, (2) it was clear or
obvious, and (3) it affected the defendant’s substantial rights.” Id. Even where
these conditions are met, we may only exercise our discretion to remand for
resentencing if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
                                    B. Analysis
      Pursuant to the categorical approach set forth in Taylor v. United States,
495 U.S. 575, 599-602 (1990), and Shepard, 544 U.S. at 19-26, “[w]hen analyzing
a prior conviction to determine whether it meets the requirements needed to
trigger a particular offense level, the district court must confine its examination
to the elements of the statute under which the prior conviction was obtained.”
McCann, 613 F.3d at 502.
      “Due to Shepard, a district court may not apply a particular offense level
based solely on the PSR’s conclusory characterization of a prior conviction as
having been for a [COV].” Id. (internal quotation marks and citation omitted,
emphasis in original). When a court relies upon the PSR alone, “it makes an
error that is clear and obvious.” Id.; see also United States v. Garza-Lopez, 410
F.3d 268, 274-75 (2005) (holding that it is plain error for a district court to rely



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                                     No. 09-31167

solely on the PSR’s characterization of an offense or recitation of facts in
determining whether an enhancement applies).
      Although it may not rely solely upon a PSR to determine that a Guidelines
enhancement is appropriate, a district court may rely upon facts admitted by the
defendant when determining whether an enhancement is applicable. See United
States v. Mendoza-Sanchez, 456 F.3d 479, 483 (5th Cir. 2006) (relying upon
defendant’s admission of facts at his rearraignment to determine that his
conviction qualified as a COV).
      The district court relied solely upon the PSR in characterizing Myles’s
burglary conviction as a COV, and this was error that was clear and obvious
under our cases. See United States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.
2006). However, given Myles’s concession in his brief that the PSR’s description
of his conviction as one for simple burglary of an inhabited dwelling under L A.
R EV. S TAT. A NN. § 14:62.2 was correct, it is clear that the district court’s error did
not affect Myles’s substantial rights.
      L A. R EV. S TAT. A NN. § 14:62.2 provides that “[s]imple burglary of an
inhabited home is the unauthorized entry of any inhabited dwelling, house,
apartment or other structure used in whole or in part as a home or place of
abode by a person or persons with the intent to commit a felony or any theft
therein.” This language on its face shows that the Louisiana offense of simple
burglary of an inhabited dwelling qualifies as “burglary of a dwelling” as
enumerated in § 4B1.2(a). See United States v. Davis, 141 F.3d 1164 (5th Cir.
1998) (per curiam) (unpublished).
      Accordingly, we AFFIRM the sentence of the district court.




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