IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50090

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

STEPHEN EIKELBOOM,

Defendant–Appellant.

Appeals from the United States District Court

for the Western District of Texas

USDC No. 5:10-CR-7-1

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Stephen Eikelboom appeals following his conditional guilty-plea conviction

for manufacturing a controlled substance and his sentence of 200 months of

imprisonment and five years of supervised release. He challenges the district

court’s denial of his motion to withdraw his guilty plea, the district court’s denial

of his motions to suppress the evidence found at his residence, and the district

court’s determination that he is a career offender for purposes of United States

Sentencing Guidelines (U.S.S.G.) § 4B1.1(a).

United States Court of Appeals

Fifth Circuit

F I L E D

April 22, 2013

Lyle W. Cayce

Clerk

* 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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A defendant does not have an absolute right to withdraw a guilty plea but

may be allowed to do so on a showing of “a fair and just reason.” United States

v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). We review the district court’s

decision whether to permit withdrawal of a guilty plea for an abuse of discretion. 

Id. In this case, our examination of the record shows that none of the factors set

forth in United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984), weigh in

Eikelboom’s favor and that most of the factors weigh against the withdrawal of

his guilty plea. The district court therefore did not abuse its discretion by

denying his motion to withdraw his guilty plea.

We review the district court’s factual findings on a motion to suppress for

clear error and the district court’s ultimate conclusions as to whether the Fourth

Amendment was violated de novo. United States v. Scroggins, 599 F.3d 433, 440

(5th Cir. 2010). We view the evidence in the light most favorable to the

prevailing party unless that view is inconsistent with the trial court’s findings

or is clearly erroneous in light of the evidence as a whole. Id. The clearly

erroneous standard is even more deferential when, as in this case, the denial of

the suppression motion is based upon live oral testimony. Id. We should affirm

a district court’s denial of a suppression motion “if there is any reasonable view

of the evidence to support it.” United States v. Michelletti, 13 F.3d 838, 841 (5th

Cir. 1994) (en banc) (quoting United States v. Register, 931 F.2d 308, 312 (5th

Cir. 1991)) (internal quotation marks omitted).

A warrantless intrusion into an individual’s home is permissible if

“probable cause and exigent circumstances justify the search.” United States v.

Troop, 514 F.3d 405, 409 (5th Cir. 2008) (quoting United States v. GomezMoreno, 479 F.3d 350, 354 (5th Cir. 2007)). Eikelboom argues that no exigent

circumstances existed to justify the warrantless search of his residence. 

However, based upon the testimonial evidence presented at the suppression

hearing, exigent circumstances existed because there was a danger that

accomplices could have been inside Eikelboom’s residence, which posed a risk of

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harm to the officers as well as a risk of destruction of evidence. A reasonable

view of the evidence supports the district court’s denial of Eikelboom’s motion

to suppress challenging the warrantless search of his residence. See Michelletti,

13 F.3d at 841.

Eikelboom also argues that the search warrant for his residence violated

his Fourth Amendment rights because the search warrant affidavit lacked any

indicia of probable cause and the magistrate judge lacked a substantial basis for

concluding that probable cause existed. The ultimate determination of the

affidavit’s adequacy is entitled to great deference on review. United States v.

May, 819 F.2d 531, 535 (5th Cir. 1987). In light of that great deference coupled

with the similarity of this affidavit to affidavits found sufficient in other cases,

we uphold the district court’s finding that the good faith exception is applicable

in this case. See United States v. Garcia, 27 F.3d 1009, 1013-14 (5th Cir. 1994);

United States v. McKnight, 953 F.2d 898, 904-05 (5th Cir. 1992).

Finally, Eikelboom contends that the district court erred by sentencing

him as a career offender pursuant to § 4B1.1. Although he concedes that he has

one prior Texas conviction for burglary of a habitation that qualifies as a crime

of violence (COV), he asserts that his two other Texas convictions for burglary

of a habitation do not qualify as COVs as defined in U.S.S.G. § 4B1.2(a)(2). We

review de novo whether a prior conviction constitutes a COV. United States v.

Stoker, 706 F.3d 643, 646 (5th Cir. 2013).

We employ a categorical approach to determine whether a particular

offense constitutes a crime of violence by deriving the “generic, contemporary

meaning” of the undefined, enumerated offense and looking at the elements of

the statute of conviction rather than at the defendant’s specific conduct. United

States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006); see also United States

v. Moore, 635 F.3d 774, 776 (5th Cir. 2011) (per curiam). Eikelboom’s two prior

Texas convictions at issue in this case were for burglary of a habitation under

Texas Penal Code § 30.02 (West 1993). We have previously held that a Texas

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conviction for burglary of a habitation under § 30.02(a)(1) constitutes a COV. 

United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992) (holding that

§ 30.02(a)(1) is a “violent felony” under 18 U.S.C. § 924(e)); see also James v.

United States, 550 U.S. 192, 206 (2007) (noting that the definition of “crime of

violence” for a career offender enhancement “closely tracks” the definition of

“violent felony” set forth at § 924(e)). However, a conviction under § 30.02(a)(3)

does not constitute a COV because that statutory subsection does not require

entry with an intent to commit a felony, theft, or assault. United States v.

Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam) (discussing

§ 30.02(a)(3) in the § 924(e) context). Because this statute has disjunctive

subsections, we may look to the allegations in the charging instrument, but only

to ascertain under which statutory subsection the defendant was convicted. 

United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).

The first paragraphs of both state indictments track the language of the

version of § 30.02(a)(1) in effect at that time, and the second paragraphs track

the language of the version of § 30.02(a)(3) in effect at that time. The judgments

do not specify the underlying subsection to which Eikelboom pleaded guilty. 

Under Texas law, a guilty plea is an admission of only those facts needed to

support the conviction. United States v. Morales-Martinez, 496 F.3d 356, 359-60

(5th Cir. 2007). The Government argues that we should follow United States v.

Morales-Ordaz, 427 F. App’x 319 (5th Cir. 2011), to conclude that Eikelboom’s

conviction of a first-degree felony under § 30.02(d) proves that he was convicted

under § 30.02(a)(1). However, unlike the version of § 30.02(d) relied upon in

Morales-Ordaz, the version of § 30.02(d) applicable to Eikelboom’s offenses did

not contain any language specifying that a first-degree felony required intent at

the time of entry. See § 30.02(d) (West 1993). Because Eikelboom could have

pleaded guilty to facts supporting a conviction under § 30.02(a)(3), the district

court erred in using either of Eikelboom’s prior burglary convictions as a

predicate offense for the career offender enhancement provided at § 4B1.1. See

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Constante, 544 F.3d at 587; United States v. Beltran-Ramirez, 266 F. App’x 371,

372 (5th Cir. 2008).

As argued by Eikelboom, if the district court had not determined that he

was a career offender under § 4B1.1(b), his criminal history category would have

been V and his total offense level would have been 31, thereby resulting in an

advisory guidelines range of 168 to 210 months of imprisonment. Although the

district court imposed a sentence of 200 months of imprisonment, Eikelboom

argues that the district court could have imposed a lower sentence if it had

started with the correct guidelines range.

A procedural sentencing error is harmless if the error did not affect the

district court’s selection of the sentence imposed. United States v. Harris, 597

F.3d 242, 261 (5th Cir. 2010). Although the Government bears the burden of

showing that the district court’s misapplication of the Guidelines was harmless,

it argues only that the error was harmless because the district court imposed a

downward variance. The record is unclear as to whether the district court would

have imposed the same sentence if it had begun with the correct guidelines

range. Because we cannot conclude that the guidelines error was harmless, we

must vacate the sentence and remand for resentencing. See United States v.

Roussel, 705 F.3d 184, 202-03 (5th Cir. 2013). We affirm Eikelboom’s conviction

and the district court’s denials of his motion to withdraw his guilty plea and his

motions to suppress.

AFFIRMED in part, VACATED and REMANDED in part.

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