### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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: * S t e p h e n E ik elb o o m ap p e al s f o ll o wing his conditional guilty - p l e a c o nvictio n for manufacturing a con t r o l l e d substance and his sentence o f 200 months of imprisonment a nd five y e a r s of supervised release. He challenges the district court’s denial of his motion to withdraw his guilty plea, the district c ourt’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). U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 22, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50090 Document: 00512216206 Page: 1 Date Filed: 04/22/2013No. 12-50090

A d efendant does not have an absolute right to withdraw a guilty plea but may be allowed to do so on a s howing of “ a fair a nd 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 f or an abuse o f discretion. Id. In this case, our e x a mination of the record shows that none of the factors set forth in United States v. Ca r r , 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 dis t r i c t c ourt therefore did n ot 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 e rror and the district court’s ultimate c onclusions as to whether the Fourth Amendment was violated d e novo. United States v. Scroggins , 5 99 F.3d 4 33, 440 (5th Cir. 2 010). We view the evidence in the light most fav orable 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 wh o l e . Id. The clearly

erroneous standard is even more deferential when, a s in this case, the denial of the suppression motion is based upon live oral testimony. Id. We should affirm

a district court’s d enial of a suppression motion “if there is any r e asonable view of the evidence to support it.” United States v. M ichelletti , 1 3 F.3d 838, 841 (5th Cir. 1 994) (en banc) (quoting U n i t e d S t a tes v. Register , 931 F.2d 308, 312 (5th Cir. 1991)) (internal quotation marks omitted). A warrantles s i ntrusion into an individual’s home is permissible if “probable c ause a nd exigent circumstances justify the search.” United States v. Troop , 5 1 4 F

. 3d 405, 4 09 (5th Cir. 2008) (quoting United States v. GomezMoreno , 479 F.3d 350, 3 54 ( 5th Cir. 2007)). Ei k e lb oom argues that no exigent circumstances existed t o j u sti f y the warrantless search of his residence. Howev e r , b ased upon the testimonial evidence presented at the suppression hearing, exigent circumstances ex isted because there w as 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 a s a risk o f d e s t r u c t i on of evidence. A reasonable view of the e vidence s upports the district court’s denial of Eikelboom’s motion to suppress challenging the warrantless s earch 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 w arrant affidavit l acked any indicia of probable cause and the magistrate judge lacked a substantial basis for

c o n c l u ding that probable cause existed. The ultimate d etermination of the affidavit’s adequacy is entitled to great deference on review. United S t a t e s v. May , 819 F.2d 531, 535 (5th Cir. 1987). In light o f that great deference coupled with the similarity of this affidavit to affidavits f ound 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 distri c t c o urt erred by sentencing him as a career offender p ursuant 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 C OVs as defined in U.S.S.G. § 4 B1.2(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 categoric a l a p p r oach to determine whether a particular offense constitutes a crime of violence by der iving the “generic, contemporary meaning” of the u ndefined, 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 a lso United States

v. M oore , 635 F .3d 774, 776 (5th Cir. 2011) (per curiam). Eikelboom’s two prior T e xas convictions at issue i n this case were for burglary of a habitation under T e x a s Penal Code § 30.02 (West 1993). We have previously held that a T e x a s 3 Case: 12-50090 Document: 00512216206 Page: 3 Date Filed: 04/22/2013No. 12-50090

conviction for burglary o f a habitation under § 30.02(a)(1) constitutes a COV. United S t a t e s v . Silva , 957 F.2d 1 57, 1 62 (5th Cir. 1992) (holding that § 30.02(a)(1) is a “violent fe l o n y” under 18 U.S.C. § 9 24(e)); s ee also James v. United States , 550 U.S. 192, 206 (2007) (noting that the d efiniti o n o f “ c rime of violence” f

or a career o ffender enhancement “closely tracks” the de f inition of “violent felony” set forth at § 9 24(e)). However, a conviction u n der § 30.02(a)(3) does not constitute a COV because that s tatuto ry subsection does n o t require entry with an intent to c ommit a felony, theft, or assaul t

. United States v. Constante , 544 F.3d 584, 5 8 7 ( 5th Cir. 2008) (per curiam) (discussing § 30.02(a)(3) in the § 924(e) context). Because this statute h a s disjunctive subsections, we may look to the allegations in the charging instrument, but only to a scertain under which s tatutory s ubsec t i on the defendant was c o nvicted. 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 o f § 30.02(a)(1) in effect at that time, a nd the s econd 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 pleade d gu i lty. Under Texas l aw, a guilty plea is an a dmission of o n l y those f acts 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 Ci r . 2011), to conclude that Eikelboom’s conviction of a first-degree felony under § 3 0.02(d) proves that he was convicted under § 30.02(a)(1). However, unlike the version o f § 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 1 993). Because E ikelboom could have pleaded guilty to facts supporting a conviction unde r § 30.02(a)(3), the district court erred in using either of Eikelbo o m ’ s p rior b urglary convictions as a predicate o ffense for the career offender enhancement provided at § 4B1.1. See
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Constante , 544 F.3d at 587; United St ates 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 u nder § 4B1.1(b), his c riminal history category would have been V and his total offense level would have been 31, thereby r e s u lting in an advisory guidelines range of 168 to 210 months of imprisonment. Although the district court imposed a sent e nce of 200 months of imprisonment, Eikelboom argues th a t t h e d i s t rict court could have imposed a lower s entence if it had started with the correct guidelines range. A procedural sentencing error is harmless if the error di d n ot affect the district court’s s election of the sentence imposed. United States v. Harris , 597 F.3d 242, 261 (5th Cir. 2010). Although the G overnment bears the b u r den of showing that the district court’s misapplication o f 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 h av e i m posed the same sentence if it h ad begun with the correct guidel i n e s range. Because we cannot conclude that the guidelines error was harmless, we must v acate the sentence and remand for r e sentencing. See United States v. Roussel , 705 F.3d 184, 2 02-03 (5th Cir. 2013). We affirm Eikelboom’s conviction and the district court’s d enials 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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