     Case: 10-10988     Document: 00511525769         Page: 1     Date Filed: 06/30/2011




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

                                                                            FILED
                                                                           June 30, 2011
                                     No. 10-10988
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TONY JAY BREEDLOVE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:10-CR-26-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
        Tony Jay Breedlove appeals from his conviction of escape. He argues that
the evidence was insufficient to support the district court’s finding that he
committed the offense of possession of stolen mail while on escape status. The
finding that he committed this offense disqualified him from receiving a four-
level downward adjustment to his offense level pursuant to U.S.S.G.
§ 2P1.1(b)(3), which applies to defendants who escape from halfway houses or
similar facilities. Within his sufficiency argument, he also contends that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10988    Document: 00511525769       Page: 2   Date Filed: 06/30/2011

                                   No. 10-10988

Government violated Federal Rule of Evidence 404(b) by arguing that his prior
stolen mail conviction was relevant to the issue whether he committed a stolen
mail offense while on escape status.
      Breedlove did not raise his Rule 404(b) argument in the district court; our
review therefore is for plain error. See United States v. Williams, 620 F.3d 483,
488-89 (5th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011). Rule 404(b) does not
apply to sentencing proceedings. See FED. R. EVID. 1101(d)(3) (stating that the
Federal Rules of Evidence do not apply at sentencing). Breedlove cannot show
error as to Rule 404(b), plain or otherwise.
      We “review[] de novo the district court’s guidelines interpretations and
review[] for clear error the district court’s findings of fact.” United States v. Le,
512 F.3d 128, 134 (5th Cir. 2007). The district court makes factual findings at
sentencing under the preponderance of the evidence standard. United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). The facts as set out in the record were
sufficient for the district court to find by a preponderance of the evidence that
Breedlove knowingly possessed stolen mail inside a bag that was in his car when
he was arrested. On the facts found by the district court, Breedlove committed
the federal felony offense of possession of stolen mail while on escape status. See
18 U.S.C. § 1708.     The district court did not err by denying Breedlove a
downward adjustment pursuant to § 2P1.1(b)(3).
                                                                      AFFIRMED.




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