IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20058

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

EUGENE THOMAS HOOVER, III,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-889-1

Before KING, BARKSDALE, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Eugene Thomas Hoover, III, proceeding in forma pauperis, appeals his 

guilty-plea conviction and sentence for being a felon in possession of a firearm, 

in violation of 18 U.S.C. § 922(g)(1). 

Regarding his conviction, Hoover maintains 18 U.S.C. § 922(g)(1) is 

unconstitutional on its face, and as applied to him, because the Commerce 

Clause does not authorize Congress to criminalize purely local possession of a 

* 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

December 17, 2013

Lyle W. Cayce

Clerk

 

 Case: 13-20058 Document: 00512472749 Page: 1 Date Filed: 12/17/2013
No. 13-20058

firearm merely because it was shipped or transported in interstate commerce 

at some point in the past. He concedes this claim is foreclosed by United States 

v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), and raises it only to preserve 

it for possible further review.

Concerning Hoover’s numerous challenges to his sentence, and although 

post-Booker, the Sentencing Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard, the district court must still properly 

calculate the Guidelines-sentencing range for use in deciding on the sentence 

to impose. Gall v. United States, 552 U.S. 38, 48-51 (2007). In that respect, 

for issues preserved in district court, its application of the Guidelines is 

reviewed de novo; its factual findings, only for clear error. E.g., United States 

v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. 

Villegas, 404 F.3d 355, 359 (5th Cir. 2005). As with his challenge to his 

conviction, Hoover concedes that several of his challenges to his sentence are 

also foreclosed. 

First, Hoover asserts the district court erred in determining his prior 

conviction for burglary of a habitation with intent to commit theft under Texas 

Penal Code § 30.02(a) was a violent felony for purposes of the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e). He contends the indictment charged 

him with the burglary offense in a manner incorporating Texas’ unique 

“greater right of possession” theory and that this overly broad definition of 

burglary is not a generic burglary under the ACCA. Hoover concedes this claim 

is foreclosed by United States v. Morales-Mota, 704 F.3d 410, 412 (5th Cir.),

cert. denied, 133 S. Ct. 2374 (2013), but he raises it to preserve it for possible 

further review.

2

 Case: 13-20058 Document: 00512472749 Page: 2 Date Filed: 12/17/2013
No. 13-20058

Second, Hoover contends the court erred in determining his prior 

conviction for evading arrest with a motor vehicle under Texas Penal Code 

§ 38.04(a) was a violent felony for purposes of the ACCA. In United States v. 

Harrimon, our court held that Texas offense was a violent felony under the 

ACCA because “fleeing by vehicle poses a serious risk of injury to others”. 568 

F.3d 531, 536 (5th Cir. 2009). The Supreme Court, in Sykes v. United States, 

subsequently held an Indiana conviction for resisting law enforcement through 

felonious vehicle flight was a violent felony under the ACCA’s residual clause, 

§ 924(e)(2)(B)(ii). 131 S. Ct. 2267, 2272, 2277 (2011) (noting the Court’s decision 

is consistent with Harrimon). And, our court has held Sykes did not overrule 

Harrimon, either explicitly or implicitly. E.g., United States v. Standberry, ___ 

F. App’x ___, 2013 WL 5976454, at *1 (5th Cir. 23 April 2013) (holding Sykes’ 

focus on use of motor vehicle did not overrule Harrimon). Therefore, we are

bound by Harrimon. United States v. Holston, 471 F. App’x 308, 309 (5th Cir. 

2012). Thus, the district court did not err in determining Hoover’s evadingarrest-with-a-motor-vehicle conviction was a violent felony.

Third, because the factual basis for ACCA sentencing enhancements was

used to raise the statutory maximum sentence applicable to him, Hoover

asserts these facts must be charged in the indictment and either proved to a 

jury or admitted by him. Hoover concedes this claim is foreclosed, and raises

it only to preserve it for possible further review. See James v. United States, 

550 U.S. 192, 213-14, n.8 (2007) (holding categorical approach to determine

whether a prior conviction qualifies as a violent felony for ACCA purposes 

“raises no Sixth Amendment issue”); see also United States v. White, 465 F.3d 

250, 254 (5th Cir. 2006) (“‘[N]either the [ACCA] nor the Constitution requires 

a jury finding on the existence of the three previous felony convictions required 

for the enhancement’”.) (citation omitted).

3

 Case: 13-20058 Document: 00512472749 Page: 3 Date Filed: 12/17/2013
No. 13-20058

Fourth, Hoover claims §§ 924(e)(1) and (e)(2)(B)(ii) (the residual clause), 

which provide for a sentence enhancement on a prior conviction that 

“otherwise involves conduct that presents a serious potential risk of physical 

injury to another” are unconstitutionally void for vagueness. In James, the 

Supreme Court observed this residual clause “is not so indefinite as to prevent 

an ordinary person from understanding what conduct it prohibits”. James, 550 

U.S. at 210 n.6 (citation omitted). Therefore, Hoover’s claim is foreclosed by 

James. United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011). 

AFFIRMED.

4

 Case: 13-20058 Document: 00512472749 Page: 4 Date Filed: 12/17/2013