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

No. 12-40678 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff–Appellee,

versus TONY EARL BAILENTIA, JR., Also Known as Tony Earl Bailentia, Also Known as Tony Earl Jones, Also Known as Thomas Edward Bailey, Jr., Also Known as LA, Defendant–Appellant.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:11-CR-96-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: *

Tony Bailentia, Jr., was convicted of being a f elon in p o ssession of a firearm and sentenced p ursuant to the Armed Career C r i minal Act (“ACCA”), 18 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 J uly 2, 2013 Ly l e W . Cay ce 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

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U.S.C. § 924(e), and U.S. Sentencing Guidelines § 4B1.4 to 252 months of imprisonment and five years of supervised release. He challenges his conviction and sentence on several grounds. Bailentia contends there was insufficient evidence that he possessed the firearm alleged in c ount two o f the indictment. Viewing the evidence in the light most f avorable to the verdict and drawing all inferences and credibility choices made in support of it, a rational trier of fact could h ave concluded that B ailentia possessed the firearm. See United States v. Moore , 708 F.3d 639, 645 (5th Cir. 2013). The trier of fact rationally could have c redited the testimony of the government witnesses a n d inferred that w hen Bailentia first threatened Ronald Simmons, he had a f

i rearm in his p ossession; that Bailentia later r eturned to Simmons’s apartment with the firearm on B ailentia’s p erson; and that B ailentia fled from the responding officer to hide the firearm in S immons’s mattress and avoid being found with a f i rea r m . B a i l entia’s b are assertion that there was insufficient evidence that the firearm had traveled in interstate commerce is waived b y inadequate b riefing. See United States v . Reagan , 596 F.3d 251, 254 (5th Cir. 2010). Bailentia asserts that evidence regarding count one, for which the district court entered a judgment of acquittal, was inadmissible under Federal Rule of Evidence 404(b). If we assume for purposes of argument that this evidence was extrinsic to count two, it was still relevant to an issue other than Baile n tia’s character, namely, w hether he had access to and thus possessed a firearm on the date charged in count two. Further, the probative value of this evidence was not outweighed b y the danger of undue p r ejudice i n light of the relative strength of the government’s case on count two and the l imiting jury instruction. See United States v. Cockrell , 587 F.3d 674, 682 (5th Cir. 2009); United States v . Beechum , 582 F.2d 898, 911 ( 5th Cir. 1978) ( en banc). The district court did n ot abuse its discretion by d enying the motion for a new trial. See United S tates v . Piazza , 647 F.3d 559, 564 (5th Cir. 2011).
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Bailentia raises three challenges to the ACCA sentence enhancement. He contends that his conviction in Louisiana for simple burglary is not a violent felony. The charging document and minutes of court, which the district c o u r t properly considered to nar r o w t h e offense of c onviction, see Shepard v. United States , 544 U.S. 13, 26 (2005), reveal that Bailentia pleaded gui l ty to simple burglary of a building with the intent of c ommitting a theft therein. See LA
. R E V
. S TA T
. AN N
. 14:62 ( 1 9 74). Accordingly, his prior conviction m eets the generic definition of burglary, and the court correctly determined that this prior conviction i s a violent f

elony. See Taylor v. U n ited States , 495 U.S. 575, 599 (1990); United States v. Hawley , 516 F.3d 264, 269 (5th Cir. 2 008). Bailentia’s other arguments

SSthat the facts establishing that he had three prio r c o nvictions for violent f elonies had t o b e p roven beyond a reasonable doubt to a jury and that the PSR provided inadequate notice that § 4 B1.4 was applicable at s entencing

SS
are foreclosed. See United States v. White , 465 F. 3 d 2 5 0 , 2 54 (5th Cir. 2006); Unit e d S t a t e s v . Howard , 444 F.3d 326, 327 (5th C ir. 2006); United States v. Stone , 306 F.3d 241, 243 (5th Cir. 2002). Bailentia challenges the substantive reasonab l e n ess of h is withinguidelines sentence. His challenge to the presumption o f reasonableness is foreclosed by Rita v. United States , 551 U.S. 338, 346-51 (2007). The district court

w a s a w a re o f the mitigating factors pointed to by Bailentia at sentencing but implicitly gave more w e i gh t t o the aggravating factors. B ailentia has not demonstrated that the court f a i l e d t o g ive proper weight t o any particular 18 U.S.C. § 3553(a) f

actor o r that his sentence “represents a clear error of judgment in balancing s entencing factors.” United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, he has failed to rebut the p r e s u m p t i on o f reasonableness that is accorded to a within-guidelines sentence. See id. AFFIRMED.

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