     Case: 13-10374      Document: 00512589087         Page: 1    Date Filed: 04/08/2014




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

                                                                                FILED
                                    No. 13-10374                             April 8, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JERRILL KENYON RUSSELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:12-CR-18-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jerrill Kenyon Russell pleaded guilty to one count of possession of a
firearm by a convicted felon.         The district court sentenced Russell to 180
months in prison pursuant to the Armed Career Criminal Act (ACCA). As he
did in the district court, Russell argues that his prior Texas conviction for
burglary of a building was not a crime punishable by imprisonment for a term
exceeding one year and could not be used to support application of the ACCA


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10374    Document: 00512589087     Page: 2   Date Filed: 04/08/2014


                                 No. 13-10374

enhancement in 18 U.S.C. § 924(e)(2)(B) (i)-(ii) and U.S.S.G § 4B1.4. We review
“the district court’s interpretation and application of the [ACCA] de novo.”
United States v. Harrimon, 568 F.3d 531, 533 (5th Cir. 2009).
      Russell concedes that he was convicted of burglary of a building, an
offense that is a state jail felony and punishable by imprisonment for no more
than two years and no less than 180 days. Texas Penal Code § 12.44(a)
provides discretion, however, for a court to punish a defendant convicted of a
state jail felony by imposing a sentence as if the offense were a Class A
misdemeanor. Russell’s sole argument is that because he was sentenced under
§ 12.44(a), his offense was not a felony because it was not punishable by a term
of imprisonment exceeding one year. In Harrimon, we held that a conviction
was a “violent felony” under 18 U.S.C. § 924(e)(2)(B) because the offense’s
statutory maximum was two years in prison, even though the sentencing court
exercised its discretion to allow the offense to be punished as a misdemeanor
under § 12.44. Harrimon, 568 F.3d at 533 n.3. Russell’s argument is without
merit.
      The Government’s motion for summary affirmance is GRANTED. The
motion for an extension of time in which to file a brief is DENIED. The
judgment of the district court is AFFIRMED.




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