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

                                                FILED
                                                                 May 18, 2009
                                No. 08-10434
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

EDWARD GARCIA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 4:07-CR-179-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Edward Garcia (“Garcia”) appeals the 235-month sentence imposed
following his jury trial conviction of one charge of being a convicted felon in
possession of a firearm under 18 U.S.C. § 922(g). Garcia argues that the district
court erred in sentencing him as an armed career criminal (“ACC”) under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924. Garcia contends that the
district court’s application of the ACC sentence enhancement violated his Sixth



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10434

Amendment rights and that the evidence presented in support of the
enhancement was not sufficiently reliable to support the district court’s
determination that his prior burglary convictions occurred on different occasions.
      The district court’s interpretation and application of the Sentencing
Guidelines are reviewed de novo, United States v. White, 465 F.3d 250, 252 (5th
Cir. 2006), whereas the district court’s factual findings are reviewed for clear
error, United States v. Barlow, 17 F.3d 85, 89 (5th Cir. 1994).
      Section 924(e) subjects a defendant convicted of being a felon in possession
of a firearm to a minimum sentence of 15 years if he has three prior convictions
for “a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” § 924(e)(1). In the instant case, Garcia’s sentence
was enhanced due to his 1982, 1985, and 1986 convictions for burglary. The
Government established Garcia’s prior burglary convictions were violent felonies
that occurred on separate occasions by providing the indictments and judgments
for these offenses. See Barlow, 17 F.3d at 89. Garcia then bore the burden of
proving that his prior burglary convictions did not support an ACC
enhancement.
      Garcia did not sustain his burden. Specifically, while Garcia asserted that
the ACC enhancement was improper because ambiguity might exist regarding
the date of his offenses, Garcia neither denied that his prior burglary convictions
occurred on different occasions nor introduced any evidence that his offenses
occurred simultaneously. Additionally, Garcia did not dispute: (1) the existence
of his 1982, 1985 and 1986 convictions for burglary; (2) these prior convictions
for burglary were violent felonies; or (3) his guilty pleas in the prior burglary
convictions were entered with adequate procedural safeguards. Accordingly,
Garcia did not demonstrate by a preponderance of the evidence that his prior
burglary convictions were invalid for consideration under the ACCA. Thus,
based on the evidence presented, the district court did not err when it applied
the ACC enhancement.

                                        2
                                 No. 08-10434

      To preserve his claims for further review, Garcia raises a number of issues
that he concedes are foreclosed by precedent.
      First, Garcia argues that his enhanced sentence under § 924(e) is
unconstitutional because his prior convictions and the dates of his prior
convictions are elements of the offense that were not alleged in the indictment,
proven beyond a reasonable doubt to a jury, or admitted by him. As Garcia
concedes, this argument is foreclosed by this court’s jurisprudence. Apprendi v.
New Jersey, 530 U.S. 466 (2000); White, 465 F.3d at 254; United States v.
Guevara, 408 F.3d 252, 261 (5th Cir. 2005); United States v. Stone, 306 F.3d 241,
243 (5th Cir. 2002); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000);
United States v. Almendarez-Torres, 523 U.S. 224, 235 (1998).
      Garcia also argues that the factual basis for the interstate commerce
element of § 922(g) was insufficient to support his guilty plea conviction and,
alternatively, that § 922(g) is unconstitutional. This argument is foreclosed by
United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
      Lastly, Garcia argues that the evidence was insufficient to establish the
mens rea element of § 922(g). This court rejected the same argument in United
States v. Schmidt, 487 F.3d 253, 254-55 (5th Cir. 2007).
      Accordingly, the district court’s judgment is AFFIRMED.




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