     Case: 14-40312       Document: 00512929193         Page: 1     Date Filed: 02/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40312
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           February 6, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

JOEL SANCHEZ, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-702-1


Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
       Joel Sanchez, Jr., pleaded guilty to being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Because he had
four prior Texas violent-felony burglary convictions, he was sentenced as an
armed career criminal, pursuant to the Armed Career Criminal Act (ACCA).
18 U.S.C. § 924(e) (mandating a 15-year minimum imprisonment sentence for




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                  No. 14-40312

violating § 922(g) with three prior convictions for, inter alia, violent felonies).
Sanchez was sentenced to, inter alia, 188 months’ imprisonment.
      Sanchez provided substantial assistance to the Government in the
investigation of an unrelated crime. Although urged by Sanchez, the court
refused to vary downward from the advisory Sentencing Guidelines-sentencing
range, pursuant to Guideline § 5K1.1 (allowing departure from sentencing
range for defendants who “provided substantial assistance in the investigation
or prosecution of another person who has committed an offense”). Sanchez
claims it is unclear from the record whether the district court understood its
authority to take his substantial assistance into account under 18 U.S.C.
§ 3553(a)(1) (“The court, in determining the particular sentence to be imposed,
shall consider . . . the nature and circumstances of the offense and the history
and characteristics of the defendant”.).
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “[A] sentencing court
has the power to consider a defendant’s cooperation under § 3553(a),
irrespective of whether the Government files a § 5K1.1 motion,” and the failure
to recognize that authority “is a significant procedural error.” United States v.
Robinson, 741 F.3d 588, 599 (5th Cir. 2014).
      It is unclear whether Sanchez’ claim was properly raised in district court.
Because Sanchez’ claim fails regardless of the standard of review, we decline



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                                 No. 14-40312

to address whether his claim is subject to plain-error review. E.g., United
States v. Hinojosa-Lopez, 130 F.3d 691, 693 n.1 (5th Cir. 1997), abrogated on
other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006).
      There was no procedural error; the record shows the district court
understood that it could consider Sanchez’ cooperation under § 3553(a)(1).
Rather, the court exercised its discretion and refused to vary downward from
the advisory Guidelines-sentencing range.
      Sanchez also raises three challenges to his sentence that are foreclosed
by our precedent. Although he recognizes his claims are foreclosed, he raises
them to preserve them for possible further review. First, he asserts his prior
convictions for burglary under Texas Penal Code § 30.02(a) are not violent
felonies for purposes of § 924(e), because the Texas burglary statute
incorporates a unique “greater right of possession” theory and this definition
of burglary is not a generic burglary under the ACCA. This claim is foreclosed
by United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.), cert. denied,
133 S. Ct. 2374 (2013).
      Second, Sanchez asserts that, in light of Alleyne v. United States, 133 S.
Ct. 2151 (2013), he should not have been subject to § 924(e)’s enhanced 15-year
mandatory-minimum sentence because the prior burglary convictions used to
apply the enhancement were neither alleged in his indictment nor proven to a
jury beyond a reasonable doubt. In Almendarez-Torres v. United States, 523
U.S. 224, 239–47 (1998), the Court held a prior conviction is not a fact that
must be pleaded in an indictment or found by a jury beyond a reasonable doubt
but rather is a sentencing factor that may be found by a judge. This claim is
foreclosed; our court held the Almendarez-Torres exception survived Alleyne.
E.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014).




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                                 No. 14-40312

      Finally, Sanchez urges us to reconsider our jurisprudence regarding the
constitutionality of § 922(g)(1) in the light of United States v. Lopez, 514 U.S.
549 (1995), and United States v. Morrison, 529 U.S. 598 (2000). His challenge
is foreclosed. E.g., United States v. Daugherty, 264 F.3d 513, 518 (5th Cir.
2001).
      AFFIRMED.




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