Case: 12-40678       Document: 00512295248         Page: 1     Date Filed: 07/02/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 2, 2013
                                     No. 12-40678
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk



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 felon in possession of a fire-
arm and sentenced pursuant to the Armed Career Criminal Act (“ACCA”), 18

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-40678

U.S.C. § 924(e), and U.S. Sentencing Guidelines § 4B1.4 to 252 months of impris-
onment 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 count two of the indictment. Viewing the evidence in the light
most favorable to the verdict and drawing all inferences and credibility choices
made in support of it, a rational trier of fact could have concluded that Bailentia
possessed the firearm. See United States v. Moore, 

, 645 (5th Cir.
2013). The trier of fact rationally could have credited the testimony of the gov-
ernment witnesses and inferred that when Bailentia first threatened Ronald
Simmons, he had a firearm in his possession; that Bailentia later returned to
Simmons’s apartment with the firearm on Bailentia’s person; and that Bailentia
fled from the responding officer to hide the firearm in Simmons’s mattress and
avoid being found with a firearm. Bailentia’s bare assertion that there was
insufficient evidence that the firearm had traveled in interstate commerce is
waived by inadequate briefing. See United States v. Reagan, 

, 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 Bailentia’s
character, namely, whether 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 by the danger of undue prejudice in light of the relative strength of
the government’s case on count two and the limiting jury instruction. See United
States v. Cockrell, 

, 682 (5th Cir. 2009); United States v. Beechum,

, 911 (5th Cir. 1978) (en banc). The district court did not abuse its
discretion by denying the motion for a new trial. See United States v. Piazza, 

, 564 (5th Cir. 2011).

                                        2
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                                  No. 12-40678

      Bailentia raises three challenges to the ACCA sentence enhancement. He
contends that his conviction in Louisiana for simple burglary is not a violent fel-
ony. The charging document and minutes of court, which the district court
properly considered to narrow the offense of conviction, see Shepard v. United
States, 

, 26 (2005), reveal that Bailentia pleaded guilty to simple
burglary of a building with the intent of committing a theft therein. See LA. REV.
STAT. ANN. 14:62 (1974). Accordingly, his prior conviction meets the generic
definition of burglary, and the court correctly determined that this prior convic-
tion is a violent felony. See Taylor v. United States, 

, 599 (1990);
United States v. Hawley, 

, 269 (5th Cir. 2008). Bailentia’s other
argumentsSSthat the facts establishing that he had three prior convictions for
violent felonies had to be proven beyond a reasonable doubt to a jury and that
the PSR provided inadequate notice that § 4B1.4 was applicable at sentencingSS
are foreclosed. See United States v. White, 

, 254 (5th Cir. 2006);
United States v. Howard, 

, 327 (5th Cir. 2006); United States v.
Stone, 

, 243 (5th Cir. 2002).
      Bailentia challenges the substantive reasonableness of his within-
guidelines sentence. His challenge to the presumption of reasonableness is fore-
closed by Rita v. United States, 

, 346-51 (2007). The district court
was aware of the mitigating factors pointed to by Bailentia at sentencing but
implicitly gave more weight to the aggravating factors. Bailentia has not demon-
strated that the court failed to give proper weight to any particular 18 U.S.C.
§ 3553(a) factor or that his sentence “represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 

, 186 (5th
Cir. 2009). Accordingly, he has failed to rebut the presumption of reasonable-
ness that is accorded to a within-guidelines sentence. See