United States v. Eldon Fobbs , 506 F. App'x 259 ( 2013 )

Case: 12-10453 Document: 00512101709 Page: 1 Date Filed: 01/04/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2013
No. 12-10453
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ELDON ROY FOBBS, also known as Homicide, also known as Eldon Ray Fobbs,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:11-CR-169-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Eldon Roy Fobbs pleaded guilty to one count of possession with intent to
distribute cocaine. He was deemed a career offender and sentenced to 210
months in prison, above the advisory maximum of 188 months. The court
characterized the sentence as a variance under 18 U.S.C. § 3553(a) or a
departure based on § 4A1.3 of the Guidelines.
Fobbs first contends that his Texas conviction for delivery of a controlled
substance does not support his career offender enhancement because is not a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10453
“controlled substance offense” as defined by the Guidelines. Although the Texas
offense may not be a controlled substance offense in some cases because it
penalizes an offer to sell, Fobbs’s indictment charged that he constructively
transferred a controlled substance. Constructive transfer requires a greater
showing of culpability than offering to sell. See Stewart v. State, 718 S.W.2d.
286, 288 (Tex. Crim. App. 1986). Accordingly, constructive transfer is within the
relevant definition of a controlled substance offense. United States v. Roberts,
255 F. App’x 849, 851 (5th Cir. 2007).
In addition, Fobbs contends that his prior Texas offense of robbery by
threats was not a “crime of violence” because it does not have “as an element the
use or threatened use of physical force.” A conviction under Texas Penal Code
§ 29.02(a)(2), which includes robbery by threats, is the enumerated offense of
robbery under the Guidelines. United States v. Santiesteban-Hernandez, 469
F.3d 376, 378-81 (5th Cir. 2006); see United States v. Flores-Vasquez, 641 F.3d
667, 671 n.1 (5th Cir. 2011). We therefore need not consider whether the offense
presents a risk of physical injury or has force as an element. See United States
v. Rayo-Valdez, 302 F.3d 314, 317-18 (5th Cir. 2002).
We review for plain error Fobbs’s assertions that the district court
considered improper factors in choosing his sentence. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). Fobbs’s unscored
convictions and prior lenient sentences were proper grounds for his sentence
above the Guidelines. See United States v. Zuniga-Peralta, 442 F.3d 345, 347-48
(5th Cir. 2006); United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004);
§ 3553(a)(1) & (2). Similarly, Fobbs does not show that the court’s mention of his
total number of adult convictions in the Statement of Reasons for the sentence
was an impermissible double-counting of the convictions used to establish career
offender status. See United States v. Calbat, 266 F.3d 358, 364 (5th Cir.2001)
(holding that double-counting is prohibited only if expressly forbidden).
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No. 12-10453
The district court did not commit any error by considering two Texas
offenses for which Fobbs entered pleas in bar. By entering pleas in bar under
Texas Penal Code § 12.45, Fobbs admitted his guilt of the offenses, even though
he was not adjudged guilty. See Hilburn v. State, 946 S.W.2d 885, 886 (Tex. Ct.
App. 1997). The admitted conduct was properly considered by the district court.
See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008);
§ 4A1.3(a)(2)(E).
Fobbs argues that the 210-month sentence was too long. We defer to the
district court’s decision that the § 3553(a) factors justify the extent of the upward
variance. Gall v. United States, 552 U.S. 38, 51 (2007). Fobbs’s arguments
amount to a mere disagreement with the district court and do not warrant
reversal. See id.
The judgment of the district court is AFFIRMED.
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