     Case: 19-30053       Document: 00515189799         Page: 1     Date Filed: 11/06/2019




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

                                                                               FILED
                                     No. 19-30053                      November 6, 2019
                                   Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TIMOTHY COURTNEY,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:16-CR-117-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Timothy Courtney challenges the 210-month sentence imposed following
his convictions for possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1), and possession of cocaine base and methamphetamine,
in violation of 21 U.S.C. § 844(a).
       Courtney was sentenced under the Armed Career Criminal Act (ACCA);
its enhanced penalties apply if defendant has at least three prior convictions


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-30053

for either serious drug offenses or violent felonies. 18 U.S.C. § 924(e)(1). The
ACCA defines a “violent felony” as “any crime punishable by imprisonment for
a term exceeding one year” that, inter alia, “is burglary, arson, or extortion,
[or] involves use of explosives”. 18 U.S.C. § 924(e)(2)(B).
      Courtney raises the following issues: (1) his sentence is unconstitutional
because a judge, rather than a jury, characterized his prior Louisiana
convictions for simple burglary of an inhabited dwelling as ACCA-predicate
violent felonies; (2) the simple burglary convictions were adjudicated on the
same day and should not have been considered separate offenses under the
ACCA; and (3) the court erred in determining Louisiana simple burglary of an
inhabited dwelling is generic burglary and, therefore, a violent felony for
purposes of the ACCA.
      As “legal conclusions underlying the sentencing court’s application of the
ACCA”, the first two issues Courtney raises are reviewed de novo. United
States v. Hawley, 516 F.3d 264, 269 (5th Cir. 2008) (citations omitted).
Precedent, however, forecloses both claims.
      First, the Supreme Court, in Almendarez-Torres v. United States, held
that a prior conviction is not a fact that must be alleged in the indictment or
found by a jury beyond a reasonable doubt. 523 U.S. 224, 226–27, 239–47
(1998).   Although the Court subsequently held that facts increasing the
statutory maximum or minimum sentence must be admitted by defendant or
presented to a jury and proved beyond a reasonable doubt, see Alleyne v. United
States, 570 U.S. 99, 108 (2013), a sentencing enhancement based on the fact of
a prior conviction remains an exception to this rule.          See id. at 111 n.1;
Apprendi v. New Jersey, 530 U.S. 466, 489–90 (2000). Our court has also held
that later Supreme Court decisions did not overrule Almendarez-Torres. See,
e.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (noting the



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                                  No. 19-30053

Supreme Court explained that Alleyne did not overrule Almendarez-Torres and
holding “[i]t is well established that ‘[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt’”
(emphasis in original) (quoting United States v. Akins, 746 F.3d 590, 611 (5th
Cir. 2014)).
      Second, Courtney concedes his assertion the simple burglary convictions
should not have been considered separate offenses is foreclosed by our
precedent in United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995). He asks
us to reconsider this precedent, however, in the light of the “apparent injustice
in this situation”, contending he was not advised that his decision to resolve
multiple charges on the same day would result in an enhanced sentence more
than two decades later.
      “It is well established in this circuit that ‘[m]ultiple convictions arising
from the same judicial proceeding but separate criminal transactions
constitute multiple convictions for purposes of [the ACCA].’” United States v.
White, 465 F.3d 250, 253 (5th Cir. 2006) (per curiam) (quoting Ressler, 54 F.3d
at 259). Absent an intervening decision by our en banc court or the Supreme
Court that contradicts or supersedes the current rule, this panel must adhere
to these prior decisions. E.g., Burge v. Par. of St. Tammany, 187 F.3d 452, 466
(5th Cir. 1999) (citation omitted).
      Because Courtney did not raise his third issue in district court, review is
only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Courtney must show a forfeited plain (clear
or obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the




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                                    No. 19-30053

reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      We need not reach the issue of whether the court erred in classifying
Courtney’s prior convictions as violent felonies, because Courtney cannot show
that any such error would be clear or obvious. “We ordinarily do not find plain
error when we have not previously addressed an issue.” United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009) (internal quotation marks and citation
omitted). To that end, our court has declined to find plain error where, inter
alia, “this court’s law was unsettled”. United States v. Garcia-Rodriguez, 415
F.3d 452, 456 (5th Cir. 2005). Because we have no settled law addressing the
precise issue Courtney presents, he cannot show the court committed the
requisite clear or obvious error.
      AFFIRMED.




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