United States v. Burns , 202 F. App'x 802 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-20598
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY JOE BURNS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-185-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Billy Joe Burns was convicted of possession with intent to
distribute less than 50 kilograms of marijuana; he was sentenced
to 27 months of imprisonment and three years of supervised
release. Burns now appeals the two-year term of imprisonment
imposed following the revocation of his term of supervised
release. He argues that the sentence imposed exceeds the maximum
allowed by statute.
At issue is whether the felony classification of the
underlying offense, which ultimately determines the maximum term
*
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this opinion should not be published and is not precedent except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.
No. 05-20598
-2-
of imprisonment upon revocation of supervised release, is
determined by the Guidelines range calculated by the district
court for the underlying offense or by the statute. We recently
held that the appropriate classification is determined by the
statutory section defining the offense. See United States v.
Alfaro-Hernandez, 453 F.3d 280, 282 (5th Cir. 2006).
Burns was convicted of possession with intent to distribute
less than 50 kilograms of marijuana, a violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(D). Section 841(b)(1)(D) provides that,
for cases involving less than 50 kilograms of marijuana, the
defendant shall “be sentenced to a term of imprisonment of not
more than 5 years.” An offense having a maximum term of
imprisonment of “less than ten years but five or more years” is a
“Class D” felony. 18 U.S.C. § 3559(a)(4). For Class D felonies,
the maximum term of imprisonment upon revocation of supervised
release is two years. 18 U.S.C. § 3583(e)(3). Burns was
sentenced to a term of imprisonment of 24 months, which is
“within the statutorily acceptable range.” Alfaro-Hernandez,
453 F.3d at 282.
AFFIRMED.