USA vs. Thompson, (5th Cir. 2004)

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United States Court of Appeals Fifth Circuit FILED December 17, 2004 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 04-30188 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY R. GENTRY, Defendant-Appellant. No. 04-30210 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARRY N. THOMPSON, SR., Defendant-Appellant. No. 04-30257 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LARRY N. THOMPSON, JR., Defendant-Appellant. * Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. No. 04-30258 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus REGAN GATTI, Defendant-Appellant. Appeals from the United States District Court for the Western District of Louisiana USDC No. 03-CR-50033-5 Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: * In these consolidated appeals, Antho ny R. Gentry, Larry N. Thompson, Sr., and Larry Neal Thompson, Jr., appeal the sentences imposed following their guilty-plea convictions of one count of bank robbery and one count of using firearms during a crime of violence. S ee 18 U.S.C. §§ 924(c)(1)(A), 2113. Their codefendant, Regan Gatti, appeals from his jury-trial convictions and sentences on the above counts as well as one count of conspiring to use and carry firearms in the commission of the bank robbery and one count o f possession of stolen firearms. S ee 18 U.S.C. §§ 922(j), 924(c),(o). For the reasons discussed below, we AFFIRM GattiÂ’s convictions and sentences and AFFIRM the sentences of Larry Neal Thompson, Jr. We VACATE the sentences of Gentry and Larry N. Thompson, Sr., and REMAND for resentencing of these defendants. Gatti first argues that the district court erred in denying his motion for a judgment of acquittal made at the close of the GovernmentÂ’s case-in-chief. Gatti, who did not renew his F E D . R. C RIM . P. 29 motion at the close of all the evidence, concedes that the evidence presented in defense was sufficient to sustain his convictions. Gatti has not shown that there was a manifest miscarriage of justice with respect to any of his convictions. S ee United States v. Avants , 367 F.3d 433, 449 (5th Cir. 2004). Gatti co ntends that his trial counsel was ineffective for putting him on the witness stand, for failing to object to the presen tence report, and for failing to move for a downward departure. Because the record is not adequately developed, we will not consider GattiÂ’s ine ffective assistance of counsel claims on direct appeal. S ee United States v. Higdon , 832 F.2d 312, 314 (5th Cir. 1987).

All o f the defendants argue that pursuant to B lakely v. Washington , 124 S. Ct. 2531 (2004), their sentences were imposed in violation of the Sixth Amendment because the facts underlying the calculation of their sentences under the federal sentencing guidelines were not found by a jury beyond a reasonable doubt. As the defe ndants concede, their B lakely argument is foreclosed by United States v. Pineiro , 377 F.3d 464, 465-66 (5th Cir. 2004), pet. for cert. filed (U.S. July 14, 2004)(No. 04-5263).

Gentry argues that the district court erred in sentencing him to 10 years of imprisonment for his conviction for use of firearms during and in relation to a crime of violence. We affirm Gentry§ 924(c)(1 )(A)(iii). S ee United States v. Sorrells , 145 F.3d 744, 753 (5th Cir. 1998); Bickford v. IntÂ’l Speedway Corp. , 654 F.2d 1028, 1031 (5th Cir. 1981).

Gentry argues, for the first time on appeal, that under Blakely and Apprendi v. New Jersey , 530 U.S. 466 (2000), he is entitled to have a jury determine whet her he is liable for the discharge of a weapon under 18 U.S.C. § 924(c)(1)(A)(iii). Gentry has failed to show plain error. See United States v. Barton , 257 F.3d 433, 442-43 (5th Cir. 2001).

Gentry also contends that the district court erred in adding two offense levels pursuant to U.S.S.G. § 3C 1.2 for reckless endangerment during flight. Gentry has not shown that the district court§ 1B1.3(1)(B). To the extent that Gentry contends that an adjustment under U.S.S.G. § 3C1.2 constituted impermissible double counting, his one-sentence argument fails to adequately brief the issue, and the issue is therefore waived. S ee United States v .

Brace , 145 F.3d 247, 255 (5th Cir. 1998)(en banc); Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993).

Gentry and Larry N. Thompson, Sr., argue that th e district court erred by including in the loss calculation under U.S.S.G. § 2B3.1 the cost of worker§ 2B3.1, comment. (n.3). § 2B3.1, comment. (n.3); C arbajal , 290 F.3d at 283.

Accordingly, the sentences of Gent ry and Larry N. Thompson, Sr., are VACATE D and the matter is REMANDED for resentencing in accordance with this opinion.

Finally, Larry Neal Thom pson, Jr., argues that the district court violated his right of confrontation by relying on a letter submitted by the Government in denying his motion under F ED . R. C RIM . P. 35. The record shows, however, that the district court denied the defendantÂ’s motion because he failed to file a reply, as ordered by the district court. When an appellant fails to identify any error i n the district courtÂ’s analysis, it is as if the appellant had not appealed that judgment. B rinkmann v. Dallas County Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987).

Because Larry Neal Thompso n, Jr., has not addressed the district courtÂ’s basis for denying his Rule 35 motion he has abandoned any contention regarding the district courtÂ’s ruli ng. S ee Searcy v. Houston Lighting & Power Co. , 907 F.2d 562, 564 (5th Cir. 1990).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

No. 04-30188 No. 04-30210 No. 04-30257 No. 04-30258

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