     Case: 12-50090       Document: 00512216206         Page: 1     Date Filed: 04/22/2013




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

                                                                            FILED
                                                                           April 22, 2013
                                     No. 12-50090
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

STEPHEN EIKELBOOM,

                                                  Defendant–Appellant.


                   Appeals from the United States District Court
                         for the Western District of Texas
                               USDC No. 5:10-CR-7-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Stephen Eikelboom appeals following his conditional guilty-plea conviction
for manufacturing a controlled substance and his sentence of 200 months of
imprisonment and five years of supervised release. He challenges the district
court’s denial of his motion to withdraw his guilty plea, the district court’s denial
of his motions to suppress the evidence found at his residence, and the district
court’s determination that he is a career offender for purposes of United States
Sentencing Guidelines (U.S.S.G.) § 4B1.1(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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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      A defendant does not have an absolute right to withdraw a guilty plea but
may be allowed to do so on a showing of “a fair and just reason.” United States
v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). We review the district court’s
decision whether to permit withdrawal of a guilty plea for an abuse of discretion.
Id. In this case, our examination of the record shows that none of the factors set
forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), weigh in
Eikelboom’s favor and that most of the factors weigh against the withdrawal of
his guilty plea. The district court therefore did not abuse its discretion by
denying his motion to withdraw his guilty plea.
      We review the district court’s factual findings on a motion to suppress for
clear error and the district court’s ultimate conclusions as to whether the Fourth
Amendment was violated de novo. United States v. Scroggins, 599 F.3d 433, 440
(5th Cir. 2010). We view the evidence in the light most favorable to the
prevailing party unless that view is inconsistent with the trial court’s findings
or is clearly erroneous in light of the evidence as a whole. Id. The clearly
erroneous standard is even more deferential when, as in this case, the denial of
the suppression motion is based upon live oral testimony. Id. We should affirm
a district court’s denial of a suppression motion “if there is any reasonable view
of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th
Cir. 1994) (en banc) (quoting United States v. Register, 931 F.2d 308, 312 (5th
Cir. 1991)) (internal quotation marks omitted).
      A warrantless intrusion into an individual’s home is permissible if
“probable cause and exigent circumstances justify the search.” United States v.
Troop, 514 F.3d 405, 409 (5th Cir. 2008) (quoting United States v. Gomez-
Moreno, 479 F.3d 350, 354 (5th Cir. 2007)). Eikelboom argues that no exigent
circumstances existed to justify the warrantless search of his residence.
However, based upon the testimonial evidence presented at the suppression
hearing, exigent circumstances existed because there was a danger that
accomplices could have been inside Eikelboom’s residence, which posed a risk of

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harm to the officers as well as a risk of destruction of evidence. A reasonable
view of the evidence supports the district court’s denial of Eikelboom’s motion
to suppress challenging the warrantless search of his residence. See Michelletti,
13 F.3d at 841.
      Eikelboom also argues that the search warrant for his residence violated
his Fourth Amendment rights because the search warrant affidavit lacked any
indicia of probable cause and the magistrate judge lacked a substantial basis for
concluding that probable cause existed. The ultimate determination of the
affidavit’s adequacy is entitled to great deference on review. United States v.
May, 819 F.2d 531, 535 (5th Cir. 1987). In light of that great deference coupled
with the similarity of this affidavit to affidavits found sufficient in other cases,
we uphold the district court’s finding that the good faith exception is applicable
in this case. See United States v. Garcia, 27 F.3d 1009, 1013-14 (5th Cir. 1994);
United States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992).
      Finally, Eikelboom contends that the district court erred by sentencing
him as a career offender pursuant to § 4B1.1. Although he concedes that he has
one prior Texas conviction for burglary of a habitation that qualifies as a crime
of violence (COV), he asserts that his two other Texas convictions for burglary
of a habitation do not qualify as COVs as defined in U.S.S.G. § 4B1.2(a)(2). We
review de novo whether a prior conviction constitutes a COV. United States v.
Stoker, 706 F.3d 643, 646 (5th Cir. 2013).
      We employ a categorical approach to determine whether a particular
offense constitutes a crime of violence by deriving the “generic, contemporary
meaning” of the undefined, enumerated offense and looking at the elements of
the statute of conviction rather than at the defendant’s specific conduct. United
States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006); see also United States
v. Moore, 635 F.3d 774, 776 (5th Cir. 2011) (per curiam). Eikelboom’s two prior
Texas convictions at issue in this case were for burglary of a habitation under
Texas Penal Code § 30.02 (West 1993). We have previously held that a Texas

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conviction for burglary of a habitation under § 30.02(a)(1) constitutes a COV.
United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992) (holding that
§ 30.02(a)(1) is a “violent felony” under 18 U.S.C. § 924(e)); see also James v.
United States, 550 U.S. 192, 206 (2007) (noting that the definition of “crime of
violence” for a career offender enhancement “closely tracks” the definition of
“violent felony” set forth at § 924(e)). However, a conviction under § 30.02(a)(3)
does not constitute a COV because that statutory subsection does not require
entry with an intent to commit a felony, theft, or assault. United States v.
Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam) (discussing
§ 30.02(a)(3) in the § 924(e) context). Because this statute has disjunctive
subsections, we may look to the allegations in the charging instrument, but only
to ascertain under which statutory subsection the defendant was convicted.
United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).
      The first paragraphs of both state indictments track the language of the
version of § 30.02(a)(1) in effect at that time, and the second paragraphs track
the language of the version of § 30.02(a)(3) in effect at that time. The judgments
do not specify the underlying subsection to which Eikelboom pleaded guilty.
Under Texas law, a guilty plea is an admission of only those facts needed to
support the conviction. United States v. Morales-Martinez, 496 F.3d 356, 359-60
(5th Cir. 2007). The Government argues that we should follow United States v.
Morales-Ordaz, 427 F. App’x 319 (5th Cir. 2011), to conclude that Eikelboom’s
conviction of a first-degree felony under § 30.02(d) proves that he was convicted
under § 30.02(a)(1). However, unlike the version of § 30.02(d) relied upon in
Morales-Ordaz, the version of § 30.02(d) applicable to Eikelboom’s offenses did
not contain any language specifying that a first-degree felony required intent at
the time of entry. See § 30.02(d) (West 1993). Because Eikelboom could have
pleaded guilty to facts supporting a conviction under § 30.02(a)(3), the district
court erred in using either of Eikelboom’s prior burglary convictions as a
predicate offense for the career offender enhancement provided at § 4B1.1. See

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Constante, 544 F.3d at 587; United States v. Beltran-Ramirez, 266 F. App’x 371,
372 (5th Cir. 2008).
      As argued by Eikelboom, if the district court had not determined that he
was a career offender under § 4B1.1(b), his criminal history category would have
been V and his total offense level would have been 31, thereby resulting in an
advisory guidelines range of 168 to 210 months of imprisonment. Although the
district court imposed a sentence of 200 months of imprisonment, Eikelboom
argues that the district court could have imposed a lower sentence if it had
started with the correct guidelines range.
      A procedural sentencing error is harmless if the error did not affect the
district court’s selection of the sentence imposed. United States v. Harris, 597
F.3d 242, 261 (5th Cir. 2010). Although the Government bears the burden of
showing that the district court’s misapplication of the Guidelines was harmless,
it argues only that the error was harmless because the district court imposed a
downward variance. The record is unclear as to whether the district court would
have imposed the same sentence if it had begun with the correct guidelines
range. Because we cannot conclude that the guidelines error was harmless, we
must vacate the sentence and remand for resentencing. See United States v.
Roussel, 705 F.3d 184, 202-03 (5th Cir. 2013). We affirm Eikelboom’s conviction
and the district court’s denials of his motion to withdraw his guilty plea and his
motions to suppress.
      AFFIRMED in part, VACATED and REMANDED in part.




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