     Case: 12-30518      Document: 00512500119         Page: 1    Date Filed: 01/14/2014




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

                                                                                    FILED
                                      No. 12-30518                           January 14, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee
v.

LLOYD E. CURRY,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-111-1


Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to, inter alia, felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), Lloyd E. Curry does not challenge his
conviction; he contests only his 336-month sentence, resulting from the district
court’s classifying him as an armed career criminal under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Primarily at issue are whether a
prior conviction for attempted aggravated oral sexual battery constitutes 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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“violent felony” under the ACCA and the applicable standard of review. For
this appeal, review is only for plain error. AFFIRMED.
                                        I.
      Pursuant to a May 2010 superseding indictment, Curry was charged
with three counts of heroin distribution, in violation of 21 U.S.C. § 841(b)(1)(C),
and two counts of felon in possession of a firearm. In February 2011, he
entered a plea agreement, pleading guilty to counts 1-3 (heroin distribution)
and 5 (felon in possession of a firearm) of his superseding indictment, with
count 4’s being dismissed.
      Curry’s plea agreement explained the maximum prison term for counts
1-3 was 20-years’ imprisonment for each count, and the maximum term for
count 5 was ten-years’ imprisonment. Additionally, the agreement included a
warning that, given his criminal history and his guilty plea on count 5, Curry
could qualify as an “‘[Armed] Career Offender’ pursuant to 18 [U.S.C. §]
924(e)(1)”.
      At his rearraignment hearing, the district court re-stated those same
maximum penalties for each count to which Curry was pleading guilty. The
court twice provided notice that count 5 could result in application of the
ACCA, which would subject Curry to a mandatory minimum sentence of 15-
years’ imprisonment and a maximum sentence of life imprisonment, provided
the Government proved three previous convictions for violent felonies or
serious drug offenses.
      The presentence investigation report (PSR) recommended Curry
qualified as both a career offender, pursuant to Guideline § 4B1.1(a), and an
armed career criminal under the ACCA, pursuant to Guideline 4B1.4(a). The
PSR based this on three prior felony convictions: (1) 10 September 1997, for
attempted aggravated oral sexual battery; (2) 14 December 1999, for attempted
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distribution of marijuana; and (3) 20 June 2007, for aggravated flight from a
law-enforcement officer. Curry had admitted each of these convictions as part
of the factual basis for his guilty plea.
      In his written objections to the PSR, Curry objected, inter alia, to his
classification as an armed career criminal.       That objection, however, only
stated: “Defendant objects and states that he should not be considered an
‘[Armed] career criminal’ subject to an enhanced sentence”. At sentencing,
Curry “re-alleged” that written objection, but declined to provide further detail
or reasons in support.
      Considering Curry’s objection to his classification as an armed career
criminal, the court noted the Government’s evidence regarding the three prior
convictions listed in the PSR, admitted in evidence the certified copies of the
state-court charging documents for those offenses, and concluded: “Each of
these three convictions meets the requirement for a violent felony or serious
drug offense”. As a result, the court overruled Curry’s objection.
      Curry’s advisory Guidelines-sentencing range for count 5 was 292-365
months, with the statutory range for an armed career criminal being 15 years
to life imprisonment. The court sentenced Curry to 240-months’ imprisonment
for each of counts 1-3, and 336-months’ imprisonment for count 5, to be served
concurrently.
                                        II.
      Curry does not challenge the 20-year sentences for counts 1-3.           He
challenges only the court’s application of the ACCA and resulting 336-month
sentence on count 5. In that regard, he claims only that the court erred as to
classification, as a violent felony, of his prior conviction for attempted
aggravated oral sexual battery. Re-stated, he does not dispute that the other
two convictions, for aggravated flight and attempted distribution of marijuana,
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meet the requirements for a violent felony and a serious drug offense,
respectively, under the ACCA.
      Additionally, Curry contends his sentence is unconstitutional.         He
maintains:    (1) the ACCA’s residual clause is void-for-vagueness; and (2)
judicial classification of prior convictions for purposes of the ACCA, without
submitting that question to the jury, violates the Sixth Amendment.
                                       A.
      Before turning to whether Curry’s prior conviction for attempted
aggravated oral sexual battery is a violent felony under the ACCA, we must
decide the standard of review applicable to Curry’s challenge to that
classification.
                                       1.
      Curry contends his broad objections to application of the ACCA were
sufficient to preserve his specific challenge on appeal to the classification of
that conviction under the ACCA. Thus, he contends review of the district
court’s legal conclusion regarding that classification is de novo. E.g., United
States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008).
      The obvious purpose of timely and specific objections is to allow the
district court to examine issues and correct possible errors prior to appeal.
E.g., United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
Chavez-Hernandez provides guidance on the specificity required, for prior-
conviction issues such as that presented now, to preserve them for appeal.
      There, addressing classification, as a “crime of violence”, of a prior
conviction for sexual activity with a minor, Chavez objected in district court to
the classification, but failed either to provide further factual or legal support
or to make a more specific objection at subsequent sentencing hearings. Id. at
498. On appeal, Chavez again contended the prior conviction did not qualify
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as a crime of violence and provided extensive briefing. Id. Our court applied
the plain-error standard of review, however, because he “failed to put the
government or the court on notice of his [appellate] arguments in this
convoluted area”. Id. at 499; see also United States v. Brown, 437 F.3d 450,
451 (5th Cir. 2006) (applying plain-error review to application of ACCA where
appellant did not object at district court).
      As discussed supra, in his objection to the PSR, Curry made only a
general, written objection “that he should not be considered an ‘[Armed] career
criminal’ subject to an enhanced sentence”. For factual support, he reiterated
he “should not be assigned career criminal classification”. No further
information was provided.
      Prior to sentencing, Curry filed an opposition to the Government’s
sentencing motion. That opposition included the following: “The defendant
should not be considered an ‘[Armed] career criminal’ subject to an enhanced
sentence”.   Again, no further legal contention or factual information was
provided.
      Similarly, at sentencing, Curry re-alleged his prior written objection. He
declined, however, to make any additional factual or legal presentation
supporting that objection.
      In response to Curry’s re-alleged objection, the court reviewed the state-
court charging documents and concluded, without detailed analysis: “Each of
these three convictions meets the requirement for a violent felony or serious
drug offense . . . . The defendant is, therefore, considered an armed career
criminal under [18 U.S.C. § 924(e)(1)]”. Curry neither objected to that ruling
nor responded further to the court’s classification of his conviction for
attempted aggravated oral sexual battery.


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      Although consistently stated, Curry’s broad objection did not alert the
district court to his now-focused contention on appeal:       whether his prior
conviction for attempted aggravated oral sexual battery qualifies as a violent
felony for ACCA purposes. Additionally, he never offered factual or legal
support for why the offense is not a violent felony under the ACCA.
      Accordingly, as in Chavez-Hernandez, plain-error review applies. Under
that standard, Curry must show: (1) an error; (2) that was clear or obvious;
and (3) that affected his substantial rights. E.g., Puckett v. United States, 556
U.S. 129, 135 (2009). And, even if he makes such a showing, this court has
discretion to correct the forfeited error, but should do so only if it seriously
affects the fairness, integrity, or public reputation of the proceedings. Id.
                                       2.
       For purposes of the ACCA, an offense qualifies as a “violent felony” if:
(1) “physical force against the person of another” is an element; (2) the crime
is one of the enumerated offenses (burglary, arson, or extortion); or (3) the
crime falls within the ACCA’s residual clause because the conduct “presents a
serious potential risk of physical injury to another”. United States v. Schmidt,
623 F.3d 257, 260-61 (5th Cir. 2010); see also 18 U.S.C. § 924(e)(2)(B) (defining
“violent felony”).
       Curry contends that, in determining the classification of a prior
conviction as a violent felony under the ACCA, a court must employ a
categorical approach. E.g., Sykes v. United States, 131 S. Ct. 2267, 2272 (2011).
In other words, courts may “look only to the fact of conviction and the statutory
definition of the prior offense” to determine whether an offense categorically
qualifies as a violent felony. James v. United States, 550 U.S. 192, 202 (2007)
(citations and internal quotation marks omitted); Schmidt, 623 F.3d at 261


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(“court may only consider the elements of the conviction statute and not the
specific conduct of the offender”).
      When a statute presents disjunctive alternatives for conviction, however,
the court may use the “modified categorical method” and consider certain other
documents, including the charging documents, to determine which alternative
was the basis for conviction. E.g., United States v. Hughes, 602 F.3d 669, 674
(5th Cir. 2010) (citing Johnson v. United States, 559 U.S. 133, 144 (2010)).
      At the time of the offense at issue, Louisiana law defined oral sexual
battery as:
              [T]he intentional engaging in any of the following acts
              with another person, who is not the spouse of the
              offender, when the offender either compels the other
              person to submit by placing the person in fear of
              receiving bodily harm, or when the other person has
              not yet attained fifteen years of age and is at least
              three years younger than the offender . . . the touching
              of the anus or genitals of the offender by the victim
              using the mouth or tongue of the victim.

La. R.S. § 14:43.3(A) (1996) (emphasis added).           Oral sexual battery is
aggravated when, inter alia, “the victim is under the age of twelve years”. La.
R.S. § 14:43.4(A)(4) (1996). Further, under Louisiana law, a person is guilty of
attempt if he has: “specific intent to commit a crime” and “does . . . an act for
the purpose of and tending directly toward the accomplishing of his object”.
La. R.S. § 14:27(A) (1996).
      Louisiana’s oral-sexual-battery statute is divisible.      Accordingly, the
district court looked to the charging document to determine which alternative
was the basis for conviction. See State v. Dugas, 1994-769 (La. App. 3 Cir.
2/1/95); 649 So. 2d 1193, 1194-95 (stating charging document that fails to
identify the way an oral sexual battery was committed is fatally defective).

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Here, the charging document stated Curry “committed aggravated sexual
battery upon [DB], by forcing [DB] to place his mouth upon the penis of Lloyd
Curry” when the victim was under 12 years of age. The document is silent as
to Curry’s age. Accordingly, it appears that Curry was charged under the
compels-by-fear alternative for the        oral-sexual-battery statute.      (As
demonstrated infra, we need not decide this point for purposes of our strict
plain-error review. Re-stated, this point is not outcome determinative.)
      In Begay v. United States, the Supreme Court clarified the two
requirements for an offense to qualify as a violent felony under the ACCA’s
residual clause. 553 U.S. 137, 141-42 (2008). First, attempted aggravated oral
sexual battery qualifies as a violent felony if “the conduct encompassed by the
elements of the offense, in the ordinary case, presents a serious potential risk
of injury to another”. Schmidt, 623 F.3d at 263 (quoting James, 550 U.S. at
208); Begay, 553 U.S. at 141 (accepting drunk driving as an “extremely
dangerous crime” that presents potential risk of injury to others). Second, the
offense must be “roughly similar, in kind as well as in degree of risk posed, to
the” enumerated offenses provided in the ACCA. Begay, 553 U.S. at 143
(citation omitted).
      In a prior opinion analyzing whether sexual contact with a minor
qualifies as a crime of violence under Guideline § 2L1.2, this court stated:
“‘[W]hen an older person attempts to sexually touch a child under the age of
fourteen, there is always a substantial risk that physical force will be used’”.
United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996) (quoting
United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993)). Our court
further noted there is a threat of violence because the offense generally occurs
“in close quarters” and the child has very few means “to deter the use of
physical force”. Id. As a result, our court held the offense was a crime of
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violence, even though the statute did not require the offender to compel
submission through fear of bodily harm, as is required for the instant offense.
Id. at 422-23. Additionally, this court analogized sexual contact with a minor
to burglary, one of the enumerated offenses listed in the ACCA, because such
an offense was a “far greater intrusion” and was likely to “cause alarm and to
provoke physical confrontation”. Id. at 422.
      Although Velazquez-Overa addressed a “crime of violence” under the
Guidelines, that definition is nearly identical to a “violent felony” under the
ACCA. See United States v. Najera-Mendoza, 683 F.3d 627, 631 n.3 (5th Cir.
2012). As a result, the classification in Velazquez-Overa is applicable. Given
our holding and analysis in Velazquez-Overa, and pursuant to our limited
plain-error review, even assuming arguendo the district court erred in
classifying Curry’s prior conviction as a violent felony, that assumed error
could not have been clear or obvious. See Henderson v. United States, 133 S.
Ct. 1121, 1124 (2013) (explaining “a substantive legal question that was
unsettled at the time the trial court acted . . . foreclose[s] the possibility that
an error could have been ‘plain’” unless it becomes settled by the time of
appellate review). (As discussed, Curry cannot show plain error under the
ACCA’s residual clause. Therefore, we need not reach whether, under the first
basis for a violent felony under the ACCA, attempted aggravated oral sexual
battery includes physical force as a required element of the offense.)
                                        B.
      Curry asserts the ACCA is unconstitutional on two grounds. He did not
present either challenge in district court; thus, each is reviewed only for plain
error. E.g., United States v. Parsons, 134 F. App’x 743, 743 (5th Cir. 2005).
Each claim fails.


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                                        1.
      Curry contends the ACCA’s residual clause is unconstitutionally vague.
A penal statute must define an offense “with sufficient definiteness that
ordinary people can understand what conduct is prohibited”.          Kolender v.
Lawson, 461 U.S. 352, 357 (1983). The Supreme Court has expressly rejected
Curry’s contention. See James, 550 U.S. at 210 n.6 (stating the residual clause
“is not so indefinite as to prevent an ordinary person from understanding what
conduct it prohibits”); United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011).
                                        2.
      For his other constitutional challenge, Curry contends the classification
of a prior conviction as a violent felony, as well as the resulting application of
the ACCA, requires judge-made factual findings in conflict with his Sixth
Amendment rights. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)
(“[A]ny fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury”.). To the contrary, this court
has held previously: “[W]hen a court determines whether a conviction qualifies
as a violent felony under the ACCA, it engages in statutory interpretation and
not in judicial fact finding. Therefore, there is no Sixth Amendment issue
under Apprendi v. New Jersey”. Schmidt, 623 F.3d at 260 (citing, inter alia,
James, 550 U.S. at 214).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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