     Case: 09-41245     Document: 00511269684          Page: 1    Date Filed: 10/21/2010




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

                                                 FILED
                                                                          October 21, 2010
                                     No. 09-41245
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JAMES TYSON, JR.,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:09-CR-36-1


Before D EMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
        James Tyson, Jr., was convicted by a jury of one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Tyson was
sentenced to 117 months of imprisonment and a three-year term of supervised
release. He appeals his conviction and sentence.
        Tyson argues that the evidence was insufficient to sustain his conviction.
He specifically asserts that the Government failed to show that he possessed a
firearm. Tyson contends that the firearm at issue in this case was found in an

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41245     Document: 00511269684 Page: 2        Date Filed: 10/21/2010
                                  No. 09-41245

area where it could have been accessed by others and that there was no physical
or forensic evidence establishing his connection to the weapon. He argues that
the Government’s case relied solely upon the unreliable testimony of a police
officer who purportedly saw Tyson discard the firearm during a foot chase.
      We will uphold the jury’s verdict “if a reasonable trier of fact could
conclude that the elements of the offense were established beyond a reasonable
doubt, viewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences from the evidence to support the verdict.”
United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008), cert. denied, 129 S. Ct.
2067 (2009) (internal marks and citation omitted). This court does “not weigh
evidence or assess the credibility of witnesses, and the jury is free to choose
among    reasonable    constructions of the      evidence.”     United   States     v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008) (citation omitted).
      Given the evidence, a reasonable trier of fact could conclude beyond a
reasonable doubt that Tyson committed the charged offense. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979). An officer observed Tyson discard a shiny
object during a foot chase. The officer returned to retrieve the item immediately
after apprehending Tyson and found a firearm in the specific location where he
observed Tyson discard the shiny object. There were no shiny objects in the area
other than the firearm and that there was no indication that the firearm had
been laying in the area for an extended period of time.           Although Tyson
challenges the reliability of the officer’s testimony, the jury’s verdict suggests
that it found the testimony to be credible, and we must accept this credibility
determination.    See Ramos-Cardenas, 524 F.3d at 605.         Thus, viewing the
evidence in the light most favorable to the jury’s verdict, there was sufficient
evidence to support Tyson’s conviction. See Jackson, 443 U.S. at 319.
      Tyson also contends that the district court improperly calculated his base
offense level by erroneously classifying his prior Texas state conviction for
assault-family violence as a “crime of violence.” He concedes that the conviction

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is a “crime of violence” under United States Sentencing Guidelines Manual
(U.S.S.G.) § 4B1.2 and this court’s precedent in United States v. Anderson, 559
F.3d 348, 354-56 (5th Cir.), cert. denied, 129 S. Ct. 2814 (2009). However, he
argues that the more narrow definition of “crime of violence” provided by
U.S.S.G. § 2L1.2 should apply and that his prior offense would not constitute a
“crime of violence” under that definition. He also contends that the treatment
of his offense as a “crime of violence” violates the holding of Begay v. United
States, 553 U.S. 137 (2008).
      Tyson was assessed a base offense level pursuant to U.S.S.G. § 2K2.1(a)(2),
which provides for an offense level of 24 if, inter alia, the defendant committed
the instant offense after sustaining at least two felony convictions for crimes of
violence. Section 2K2.1(a)(2) adopts the definition of “crime of violence” set forth
in § 4B1.2. § 2K2.1 cmt. n.1. Thus, for purposes of § 2K2.1(a)(2), “crime of
violence” is an offense punishable under federal or state law by a term of
imprisonment exceeding one year that either “(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).
      We previously interpreted the statute at issue here, Texas Penal Code
§ 22.01(b), and determined that the offense satisfies the definition of “crime of
violence” under § 4B1.2 because the offense involves a serious potential risk of
physical injury to another. See Anderson, 559 F.3d at 355. We specifically
rejected Tyson’s argument that the definition of “crime of violence” under
§ 2L1.2(b) applies for purposes of § 2K2.1(a)(2). Id. Thus, Tyson’s arguments
are foreclosed by Anderson, and we are bound by this precedent absent an en
banc decision or intervening Supreme Court decision. See United States v.
Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007). The Supreme Court’s
decision in Begay is not inconsistent with our precedent; we effectively held in

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Anderson that an offense under § 22.01(b)(2) involves the type of purposeful,
violent, and aggressive conduct necessary to satisfy the definition of “crime of
violence”in § 4B1.2. Anderson, 559 F.3d at 355-56; see Begay, 553 U.S. at 145.
      Tyson further contends that his sentence was unreasonable because it was
greater than necessary to accomplish the goals set forth in 18 U.S.C. § 3553(a).
He does not challenge the district court’s calculation of the applicable guideline
range. He also concedes that this court affords a presumption of reasonableness
to sentences imposed within the properly calculated guideline range.
Nevertheless, Tyson argues that this presumption of reasonableness violates
United States v. Booker, 543 U.S. 220 (2005), because it gives undue influence
to the guideline range. He also asserts that the factors used to justify his
sentence were already taken into account by the Guidelines and that the district
court did not engage in a significant and meaningful analysis of any mitigation
factors. Because Tyson did not object to the reasonableness of his sentence in
the district court, this court reviews for plain error. See United States v. Peltier,
505 F.3d 389, 392 (5th Cir. 2007).
      Tyson’s challenge to the presumption of reasonableness is foreclosed by
Rita v. United States, 551 U.S. 338, 346-51 (2007). Furthermore, the record
reflects that the district court considered the Guidelines and the § 3553(a)
factors in fashioning an appropriate sentence. Because the district court
exercised its discretion to impose a sentence within the properly calculated
guideline range, the sentence is presumptively reasonable, and this court may
infer that the district court considered all the factors for a fair sentence set forth
in the Guidelines. See id.; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Therefore,
Tyson has not shown plain error. See Peltier, 505 F.3d at 392.
      AFFIRMED.




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