* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

September 20, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-50948

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NIGUEL DESHON HOLDER,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-03-CR-15-ALL

--------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

Niguel Deshon Holder appeals from his guilty-plea conviction

and sentence for being a felon in possession of a firearm. For

the first time in his reply brief, Holder has raised arguments

based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), and

Crawford v. Washington, 124 S. Ct. 1354 (2004). The Government

has filed a motion to strike Holder’s reply brief. Holder has

responded by filing a motion for this court to consider the new

arguments raised in his reply brief or, in the alternative, for
No. 03-50948

-2-

leave to file a supplemental brief raising these new arguments. 

We interpret Holder’s motion as a request to construe his reply

brief as a supplement brief, and that motion is GRANTED. All

other outstanding motions, including the Government’s motion to

strike the reply brief, are DENIED.

In his initial appeal brief, Holder argues that the district

court erred by applying a two-level adjustment to his sentence

pursuant to U.S.S.G. § 2K2.1(b)(4) for possessing a firearm with

an obliterated serial number because his possession of that

firearm did not constitute relevant conduct. This court reviews

a challenge to the district court’s interpretation and

application of the Sentencing Guidelines de novo. United States

v. Carbajal, 290 F.3d 277, 282-83 (5th Cir. 2002). The district

court’s factual findings are reviewed for clear error. Id.

Based upon the district court’s factual findings regarding the

incident in which Holder possessed the firearm with an

obliterated serial number, application of U.S.S.G. § 2K2.1(b)(4)

was proper because Holder’s possession of that firearm was part

of the same course of conduct as his offense of conviction.

Holder also contends that the district court erred by

departing upwardly from the Sentencing Guidelines due to the fact

that he discharged his firearm and that such discharge resulted

in the death of another individual. Pursuant to the PROTECT Act,

this court must conduct a de novo review of the district court’s

decision to depart. United States v. Bell II, 371 F.3d 239, 243
No. 03-50948

-3-

(5th Cir. 2004). Examination of the district court’s statement

of reasons shows that the district court’s decision to depart

upwardly was proper under the relevant criteria. As Holder has

not challenged the extent of the upward departure, that issue has

been waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993)(issues not raised in appellate brief are deemed

abandoned).

Holder also argues that his sentence is invalid under

Blakely. In United States v. Pineiro, __ F.3d __ (5th Cir. July

12, 2004, No. 03-30437), 2004 WL 1543170 at *1, this court held

that the Supreme Court’s holding in Blakely was not applicable to

the Sentencing Guidelines. Accordingly, Holder’s Blakely

argument is foreclosed by Pineiro.

Holder further contends that, under Crawford, his

Confrontation Clause right was violated during his sentencing

proceeding. Crawford involved a defendant’s right under the

Confrontation Clause during his criminal trial. 124 S. Ct. at

1356-58. “[T]here is no Confrontation Clause right at

sentencing.” United States v. Navarro, 169 F.3d 228, 236 (5th

Cir. 1999) (citation omitted). Nothing in Crawford indicates

that its holding is applicable to sentencing proceedings. 

Accordingly, Holder’s Crawford-based argument lacks merit.

The district court’s judgment of conviction is AFFIRMED.
No. 03-50948

-4-

MOTION TO CONSTRUE APPELLANT’S REPLY BRIEF AS A SUPPLEMENTAL

BRIEF GRANTED; ALL OTHER OUTSTANDING MOTIONS DENIED; JUDGMENT

AFFIRMED.