U.S. v. LEFFEBRE, 214 Fed.Appx. 445 (5th Cir. 2007)
UNITED STATES of America, Plaintiff-Appellee, v. Andre David LEFFEBRE,Defendant-Appellant.
No. 06-40498 Summary Calendar.United States Court of Appeals, Fifth Circuit.
January 19, 2007.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
Larry Chris lies, Rockport Mail Center, Rockport, TX, for Defendant-Appellant.Page 446
Appeal from the United States District Court for the Southern District of Texas, USDC No. 3:05-CR-9.
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:[fn*]
[fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Andre David Leffebre was convicted for possession of a firearm by a convicted felon and sentenced to 293 months of imprisonment to run consecutively to his pending state charges and any other sentence previously assessed by any other court, and five years of supervised release. Leffebre argues that the district court abused its discretion by allowing the admission at trial of his prior federal conviction for possession of a firearm by a convicted felon. The evidence of Leffebre's prior conviction for possession of a firearm by a convicted felon was admissible under FED.R.EVID. 404(b) for the purpose of establishing his intent to commit the charged offense. SeeUnited States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). A review of the circumstances surrounding Leffebre's prior and current convictions indicates that the probative value of the evidence substantially outweighed its prejudicial effect. See United States v. Chavez, 119 F.3d 342,346-47 (5th Cir. 1997). Moreover, any prejudice was minimized by the limiting jury instruction given by the district court.See United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000). The district court did not abuse its discretion in admitting Leffebre's prior conviction for possession of a firearm by a convicted felon at trial. See Beechum,582 F.2d at 911.
For the first time on appeal, Leffebre argues that, because his offense was committed prior to the release of United Statesv. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), the remedial portion of Booker's holding, which made the Guidelines advisory, may not be applied in his case without violating the Due Process and Ex Post Facto Clauses of the Constitution. Leffebre correctly concedes that this issue is foreclosed by this court's ruling in UnitedStates v. Austin, 432 F.3d 598, 599-600 (5th Cir. 2005).
Leffebre's conviction and sentence are affirmed.
AFFIRMED.