                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 7, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-40837


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

versus

MICHAEL GUARDIOLA,

                                               Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (2:05-CR-599-ALL)
                      --------------------

Before HIGGINBOTHAM, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Michael Guardiola pleaded guilty to one

count of possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1).    The presentence investigation report

(“PSR”) recommended a base offense level of thirty-three, because,

inter alia, Guardiola previously had been convicted of aggravated

robbery four times in Texas state court.       After he received a

three-level    adjustment   for   acceptance   of   responsibility,

Guardiola's total offense level was thirty.    This offense level,

combined with a Category VI criminal history score, resulted in 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this opinion should not be published and is not precedent except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.
guideline sentencing range of 180 to 210 months.                     The PSR also

determined that Guardiola’s previous aggravated robbery convictions

qualified him for the statutory minimum 180-month sentence under

the Armed Career Criminal Act (“ACCA”).1

     At the sentencing hearing, Guardiola objected to the ACCA

enhancement       on   the   ground     that   his    four   aggravated    robbery

convictions should be considered as one transaction or occurrence.2

The district court overruled Guardiola’s objection. After granting

the government’s motion for a one-year downward departure based on

Guardiola’s substantial assistance, the district court sentenced

Guardiola    to    168   months    of    imprisonment        and   five   years   of

supervised release.          Guardiola timely appealed.

     For the first time on appeal, Guardiola contends that the

district court erred in considering his prior aggravated robbery

convictions as predicate offenses under the ACCA, because (1) he

met the definition of “juvenile” under 18 U.S.C. § 5031 at the time

he was convicted of those crimes, and (2) convictions of persons

meeting the federal definition of a juvenile should not be counted

as predicate offenses under the ACCA.                We disagree.




     1
         18 U.S.C. § 924(e).
     2
       Guardiola has abandoned this argument on appeal, but the
government notes that each of Guardiola’s four aggravated
robberies involved different victims and occurred at different
locations at different times.

                                          2
     As Guardiola did not raise this issue in the district court,

we review his sentence for plain error.3                Under the plain error

standard, Guardiola must show that (1) there was error, (2) the

error    is   clear    or   obvious,    and     (3)   the   error    affects     his

substantial rights.4        Even if the appellant makes such a showing,

we will correct the error only when it “seriously affect[s] the

fairness,      integrity,      or      public     reputation        of     judicial

proceedings.”5       In this case, we conclude that the district court

committed no error, plain or otherwise, in considering Guardiola’s

aggravated robbery convictions as predicate offenses under the

ACCA.

     Texas     law    authorizes    the      juvenile   court   to       waive   its

jurisdiction and allow juveniles to be tried as adults for first-

degree felonies.6      Guardiola was tried as an adult and convicted of

aggravated robbery in Texas state court.              Guardiola contends that,

for purposes of sentencing in federal court, the federal definition


     3
       See United States v. McGilberry, 480 F.3d 326, 328 (5th
Cir. 2007).
     4
         Id. at 329.
     5
         Id. (citations omitted).
     6
       In Texas, the juvenile court has exclusive jurisdiction
over children sixteen years of age and younger. Tex. Fam. Code §
51.02(2). The juvenile court may waive jurisdiction and transfer
a case to a district court for criminal proceedings if the child
is alleged to have committed a first-degree felony and was
fourteen years of age at the time of the alleged offense. §
54.02(a)(2). Such a waiver is contingent upon the juvenile
court’s full evaluation of the circumstances surrounding the
alleged offense. §§ 54.02(a),(f).

                                         3
of a “juvenile” should prevail over Texas’s determination to try

him as an adult.        In essence, Guardiola argues that his state

aggravated robbery convictions should have been treated as juvenile

offenses for federal sentencing purposes and not first-degree

felonies.      Given the nature of Guardiola’s offense, however, it is

irrelevant to our analysis whether he was convicted as an adult or

as a juvenile.

      A defendant is subject to the ACCA if he or she “violates

section 922(g) of this title and has three previous convictions by

any court referred to in section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both, committed on

occasions different from one another.”7             “[T]he term ‘violent

felony’ means any crime punishable by imprisonment for a term

exceeding one year, or any act of juvenile delinquency involving

the use or carrying of a firearm, knife, or destructive device that

would be punishable by imprisonment for such term if committed by

an   adult,    that   ...    is   burglary.”8   “[T]he    term   ‘conviction’

includes a finding that a person has committed an act of juvenile

delinquency involving a violent felony.”9                Aggravated robbery

constitutes a violent felony within the meaning of § 924(e)(2)(b),10


      7
           18 U.S.C. § 924(e)(1).
      8
           § 924(e)(2)(B)(ii).
      9
           § 924(e)(2)(C).
      10
       See Tex. Penal Code § 29.03 (aggravated robbery involves
a “deadly weapon” and is a first-degree felony); Tex. Penal Code

                                        4
and,   as   noted      earlier,    each   of    Guardiola’s    four     aggravated

robberies involved different victims and occurred at different

locations at different times.                 Consequently, under the plain

language    of   the    ACCA,     Guardiola’s    offenses     qualify    as   prior

convictions even though he was a juvenile when he committed them.

       For the foregoing reasons, Guardiola’s sentence is, in all

respects,

AFFIRMED.




§ 29.03 (first-degree felonies punishable not less than five
years imprisonment); see also, e.g., United States v. Munoz, 150
F.3d 401, 419 (5th Cir. 1998).

                                          5
