     Case: 12-50671       Document: 00512248545         Page: 1     Date Filed: 05/21/2013




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

                                                                            FILED
                                                                           May 21, 2013
                                     No. 12-50671
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSHUA ZUNIGA RAMIREZ, also known as Joshua Ramirez, also known as
Dboy,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-785-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Joshua Zuniga Ramirez was convicted, through his guilty plea, for
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
and received, pursuant to the Armed Career Criminal Act (ACCA), the statutory-
minimum 15 years’ imprisonment required by 18 U.S.C. § 924(e). Contesting his
sentence, Ramirez contends the district court erred in treating his prior Texas
conviction for possession of a deadly weapon in a penal institution as a violent


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50671

felony, resulting in the statutory-minimum sentence under ACCA. (According
to the Pre-sentence Investigation Report, the deadly weapon in the prior offense
at issue was a rock in a sock.)
      A district court’s determining a prior offense constitutes a violent felony
under ACCA is reviewed de novo, United States v. Fuller, 453 F.3d 274, 278 (5th
Cir. 2006), using a categorical approach under which the elements of the
underlying statute for the prior offense, rather than defendant’s underlying
conduct, are examined, Sykes v. United States 131 S. Ct. 2267, 2272 (2011).
Ramirez violated Texas Penal Code § 46.10 by “intentionally, knowingly, or
recklessly . . . (1) carr[ying] on or about his person a deadly weapon; or (2)
possess[ing] or conceal[ing] a deadly weapon in the penal institution”.
      ACCA subjects a defendant, convicted under 18 U.S.C. § 922(g), to a
mandatory-minimum sentence of 15 years’ imprisonment if he has three prior
convictions for a “violent felony”, defined as a crime that “(i) has as an element
the use, attempted use, or threatened use of physical force against the person of
another; or (ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another”. 18 U.S.C. § 924(e)(2)(B) (emphasis added).
      Ramirez contends: under Begay v. United States, 553 U.S. 137 (2008), the
residual, or “otherwise involves”, clause of 18 U.S.C. § 924(e)(2)(B)(ii) excludes
reckless crimes, and his prior conviction was such an excluded offense. The
Supreme Court has addressed when an offense should be classified as a violent
felony via that residual clause. Begay, 553 U.S. at 143-45 (cited in United States
v. Stoker, 706 F.3d 643, 649 (5th Cir. 2013) with respect to the residual clause
of Sentencing Guideline § 4B1.2). Begay explains the residual clause applies to
offenses “similar” to ACCA’s enumerated offenses, but specifically to those
offenses “roughly similar, in kind as well as in degree of risk posed, to the
examples themselves” and “typically involve purposeful, ‘violent,’ and
‘aggressive’ conduct”. Begay, 553 U.S. at 143-45. (To the extent the Court’s

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                                  No. 12-50671

decision in Sykes may have limited the applicability of the Begay analysis to
those offenses involving strict liability or an element of recklessness, the
limitation is not applicable here, as the Texas statute at issue may be violated
intentionally, knowingly, or recklessly. See Sykes, 131 S. Ct. at 2275-76; TEX.
PENAL CODE § 46.10.)
      In United States v. Marquez, 626 F.3d 214, 225 (5th Cir. 2010), our court
held the New Mexico offense of possession of a deadly weapon by a prisoner
constituted a crime of violence under Guideline § 4B1.2. Marquez’ analysis was
closely aligned with the Tenth Circuit’s in United States v. Zuniga, 553 F.3d
1330 (10th Cir. 2009), which held a violation of Texas Penal Code § 46.10 was a
crime of violence under ACCA. Marquez, 626 F.3d at 223 (citing Zuniga, 553
F.3d at 1335). Marquez also quoted the conclusion of our pre-Begay decision,
United States v. Rodriguez-Jaimes, 481 F.3d 283 (5th Cir. 2007), that possession
of a weapon in a prison setting “‘creates a perpetual risk of injury and precludes
any legitimate reasons that a non-incarcerated individual could have for
possessing a weapon . . . ’”. Marquez, 626 F.3d at 222 n.71 (quoting
Rodriguez-Jaimes, 481 F.3d at 287).
      Marquez, with its relying on Zuniga and Rodriguez-Jaimes, is controlling
here. United States v. Hughes, 602 F.3d 669, 673 and n.1 (5th Cir. 2010) (“We
have previously applied our holdings under the residual clause of the ACCA to
analyze the definition of crimes of violence under [Guideline] § 4B1.2, and vice
versa.” (internal quotation marks and citation omitted)). In short, Ramirez has
shown no error in the court’s determining his conviction for possession of a
deadly weapon in a penal institution, in violation of Texas Penal Code § 46.10,
constitutes a violent felony under 18 U.S.C. § 924(e).
      AFFIRMED.




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