     Case: 17-30435      Document: 00514502763         Page: 1    Date Filed: 06/06/2018




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

                                    No. 17-30435
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                        June 6, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

TONY VERNEL LUCIUS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 1:16-CR-125-11


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Tony Vernel Lucius appeals the sentence imposed following his guilty
plea conviction for conspiracy to distribute and to possess with intent to
distribute cocaine and 50 grams or more of methamphetamine actual. He
argues that the district court erred in sentencing him as a career offender
under U.S.S.G. § 4B1.1 and U.S.S.G. § 4B1.2 based in part upon his prior
Louisiana conviction for conspiracy to commit purse snatching. Lucius argues


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30435     Document: 00514502763      Page: 2    Date Filed: 06/06/2018


                                  No. 17-30435

that because conspiracy is not a crime of violence under Louisiana law,
conspiracy is not a crime of violence under the Guidelines. He contends that
conspiracy is an inchoate offense and is not a crime in and of itself. In addition,
Lucius challenges the application of the career offender enhancement because
he committed the purse snatching offense when he was 17 years old.
      Lucius preserved his arguments for appellate review by raising the
issues in the district court. Accordingly, we review his claims de novo. See
United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016).
      Although Lucius argues that conspiracy does not constitute a crime of
violence, he fails to argue that purse snatching does not constitute a crime of
violence. Thus, this issue is waived. See United States v. Reagan, 596 F.3d
251, 254 (5th Cir. 2010) (holding that “a failure to brief . . . constitutes waiver”
of an issue on appeal). Moreover, application note 1 to § 4B1.2 specifically
states that a crime of violence includes “the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses.” § 4B1.2, comment. (n.1).
Finally, a “[p]rior felony conviction” includes crimes punishable by death or
more than a year’s imprisonment that were committed when the defendant
was less than 18 years of age, if the conviction “is classified as an adult
conviction under the laws of the jurisdiction in which the defendant was
convicted.” § 4B1.2, comment. (n.1). Because Lucius was 17 years old when
he committed the conspiracy to commit purse snatching, he was an adult under
Louisiana law.     See § 4B1.2, comment. (n.3); LA. CHILD CODE ANN. art.
804(1)(a). Thus, his conviction qualified as a crime of violence under § 4B1.1(a)
and § 4B1.2(a).
      Relying on Roper v. Simmons, 543 U.S. 551, 569-75 (2005), Graham v.
Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460, 465 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), Lucius argues that using the



                                         2
    Case: 17-30435    Document: 00514502763    Page: 3   Date Filed: 06/06/2018


                                No. 17-30435

conspiracy to commit purse snatching conviction to enhance his sentence under
the career offender guidelines violated the Eight Amendment because he was
17 years old at the time of conviction. When a defendant has challenged the
constitutionality of a guidelines provision, we review de novo. See United
States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).
      Roper, Graham, Miller, and Montgomery are distinguishable from the
instant case because the juvenile defendants in those cases were sentenced to
death or life in prison. Moreover, “[t]here is not a national consensus that a
sentencing enhancement . . . based, in part, on a juvenile conviction
contravenes modern standards of decency.” United States v. Mays, 466 F.3d
335, 340 (5th Cir. 2006).     Thus, the judgment of the district court is
AFFIRMED.




                                      3
