United States v. Goetz

* 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this opinion should not be published and is not precedent except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
F I L E D
October 3, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50316
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK VAN GOETZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-49-1
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Mark Van Goetz was convicted following a bench trial on
stipulated evidence of attempt to manufacture methamphetamine;
possession with intent to distribute methamphetamine; carrying a
firearm during drug trafficking; and being a felon in possession
of a firearm. The district court determined Goetz was a career
offender and sentenced him to 60 months of imprisonment for
carrying a firearm during drug trafficking and to 120 months of
imprisonment on the other counts.

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Goetz argues that the district court erred in denying his
pretrial motion to suppress the evidence. Viewing the evidence
in the light most favorable to the Government, we review the
district court’s ruling following a suppression hearing under the
clearly erroneous standard for findings of fact and de novo for
questions of law. United States v. Inocencio, 40 F.3d 716, 721
(5th Cir. 1994). Goetz argues that the arresting officers,
members of a Fugitive Task Force comprised of deputy United
States marshals and state and local law enforcement officers, did
not have authority under federal or state law to arrest him
without a Texas arrest warrant based on a California parole-
violation warrant.
Assuming without deciding that the task force members did
not have authority under either the California warrant or under
federal law to arrest Goetz, we conclude they had such authority
under Texas law. Texas state peace officers and United States
marshals and deputy marshals acting as private persons may arrest
a person “without a warrant upon reasonable information that the
accused stands charged in the courts of a State with a crime
punishable by death or imprisonment for a term exceeding one
year.” TEX. CODE CRIM. PRO. art. 51.13, § 14 (West 2005) (Uniform
Criminal Extradition Act); see United States v. Johnson, 815 F.2d
309, 313 (5th Cir. 1987) (addressing secret service agents’
authority to arrest under art. 51.13, § 14, as private persons).
The record shows that the task force members had such reasonable

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information. When they arrested Goetz, the task force members
had information from Deputy Marshal Casson that Goetz was wanted
on a California parole warrant for a felony offense and that
California would seek extradition if Goetz was arrested. Deputy
Casson had personally confirmed this information through the
National Crime Information Center (NCIC). “[T]he cases uniformly
recognize that NCIC printouts are reliable enough to form the
basis for the reasonable belief which is needed to establish
probable cause.” United States v. McDonald, 606 F.2d 552, 553-54
(5th Cir. 1979). Deputy Casson also confirmed by talking with
California authorities that a warrant for Goetz’s arrest for a
parole violation on a felony conviction existed and, based on the
official’s use of the term “years,” believed that Goetz faced
imprisonment exceeding one year. Thus, the task force officers
were authorized under Texas law to arrest Goetz without a
warrant.
The Government construes Goetz’s brief as arguing that the
arrest was in violation of the second part of article 51.13,
§ 14, because the task force members did not take him before a
Texas magistrate after his arrest, that the arrest violated the
Fourth Amendment because the officers did not have a physical
copy of the California warrant when they arrested Goetz, and that
the arrest violated Texas law because California did not seek his
extradition until after the fact. If Goetz did raise these
arguments, he did not brief them adequately, and we do not

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address them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (issues not briefed adequately are waived); see United
States v. Flores, 63 F.3d 1342, 1374 n.36 (5th Cir. 1995)
(applying this rule in direct criminal appeal); United States v.
Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir. 1991) (direct
criminal appeal, issues not raised or briefed are waived).
Goetz does not argue and, similarly, has waived any argument
that the arrest violated the Fourth Amendment because the
officers lacked probable cause to arrest him. The district court
did not err in denying the motion to suppress, and Goetz’s
conviction is AFFIRMED.
Goetz argues that he is not a career offender within the
meaning of U.S.S.G. § 4B1.1 (2003) because one of the
convictions, an assault-offense conviction for which he was
sentenced in 1986, occurred more than 15 years prior to the
instant offense and he was not incarcerated on this conviction
within that 15-year period. We review the district court’s
interpretation and application of the sentencing guidelines de
novo and its factual findings for clear error. United States v.
Angeles-Mendoza, 407 F.3d 742, 746-47 (5th Cir. 2005). As the
party who sought the career offender enhancement, the Government
had the burden of proving by a preponderance of the evidence that
the enhancement was warranted. United States v. Alfaro, 919 F.2d
962, 965 (5th Cir. 1990).

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Both parties agree that for the purpose of § 4B1.1, a
defendant must have two prior felony convictions for crimes of
violence or controlled substance offenses which resulted in the
defendant being incarcerated during the 15-year period before the
commission of the instant offense. See U.S.S.G. §§ 4A1.2(e)(1),
4A1.1, comment. (n.1). After reviewing Government Exhibit 1,
which listed Goetz’s California convictions and sentences and the
“dates delivered/returned to institution, paroled/reparoled,” the
district court found that the dates Goetz was delivered or
returned to prison and paroled or re-paroled all related to the
assault offense.
This finding is not supported by a preponderance of the
evidence and is clearly erroneous. The same “dates delivered”
section set forth under the paragraph describing the 1986
assault-offense conviction and sentence are referenced with a
“same as above” with regard to convictions and sentences for a
1986 theft, a 1988 drug possession, and a 1989 vehicle theft.
Except for the original revocation of the probation term imposed
in 1983 which resulted in the three year sentence being imposed
on the assault offense in 1986, Exhibit 1 does not mention any
other parole revocation. Exhibit 1 does not show whether or to
what extent, when Goetz committed a new crime while on parole, he
was required to serve the remainder of the assault-offense
sentence before serving the new sentence. Nothing in the record
shows that any time was “served” on Goetz’s 1986 assault

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conviction after February 25, 1989, or that the 1986 sentence
“resulted in the defendant’s being incarcerated” during the 15-
year period. See U.S.S.G. § 4A1.2(e).
The Government does not assert that Goetz has any other
qualifying convictions for the purpose of U.S.S.G. § 4B1.1(a).
Accordingly, Goetz does not have the two prior felony convictions
required by § 4B1.1(a) to support the determination that he is a
career offender. The district court misapplied this guideline,
and Goetz’s sentence as a career offender is VACATED and his case
is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.

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