     Case: 18-10733      Document: 00514874917         Page: 1    Date Filed: 03/15/2019




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

                                    No. 18-10733                            FILED
                                  Summary Calendar                    March 15, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JODY LANARDO WHITE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-263-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jody Lanardo White appeals the sentence imposed following his guilty
plea conviction for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). The district court imposed an upward variance to 120
months of imprisonment from the advisory guidelines range of 70 to 87 months.
       For the first time, White argues that the district court erred by relying
on a bare arrest record of his charge of a 1983 theft of less than five dollars at


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10733

nine years of age. Because White failed to challenge the district court’s reliance
on this prior arrest, our review is for plain error only. United States v. Neal,
578 F.3d 270, 272 (5th Cir. 2009). Thus, he must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. The burden is on
White to “demonstrate[] a reasonable probability that he would have received
a lesser sentence but for the court’s consideration of the ‘bare’ arrest record.”
United States v. Williams, 620 F.3d 483, 496 (5th Cir. 2010).
      “[F]or a non-Guidelines sentence, just as for a Guidelines sentence, it is
error for a district court to consider a defendant’s ‘bare arrest record’ at
sentencing.” United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011). The
term “bare arrest record,” describes the reference “to the mere fact of an
arrest—i.e.   the    date,   charge,   jurisdiction   and   disposition—without
corresponding information about the underlying facts or circumstances
regarding the defendant’s conduct that led to the arrest.” United States v.
Windless, 719 F.3d 415, 420 (5th Cir. 2013) (internal quotation marks,
brackets, and citation omitted). The record at issue here, White’s 1983 arrest
for theft under $5, constitutes a bare arrest record that the district court
arguably considered during sentencing. See United States v. Jones, 444 F.3d
430, 436 (5th Cir. 2006).
      Even if the district court committed clear or obvious error by considering
White’s 1983 arrest, we must determine, in the context of plain-error review,
“whether the consideration of prior arrests in conjunction with other,
permissible, factors affected [White’s] substantial rights.” Jones, 444 F.3d at
436. In addition to the 1983 arrest, the court considered a number of other
factors, including: White’s “over 30-year history of criminal activity” which

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                                  No. 18-10733

included 12 adjudicated convictions, his most recent conviction for failure to
identify as a fugitive and providing officers with a false name, and the fact that
the instant offense occurred while White was on parole for aggravated assault
against a public servant and burglary of a habitation.           Due to White’s
continued participation in criminal activity, the district court sought to impose
the maximum possible sentence to “protect society as long as it can be protected
in this case.” Accordingly, the record reveals that the court gave significant
weight to several valid 18 U.S.C. § 3553(a) factors, and the record does not
show it gave weight to White’s 1983 arrest. Accordingly, White has failed to
demonstrate that, but for the court’s consideration of the bare arrest, he would
have received a lesser sentence. See Williams, 620 F.3d at 495-96 (holding that
district court’s “lengthy and weighted discussion of other significant” factors
rebutted defendant’s argument that his substantial rights were affected); see
also Jones, 444 F.3d at 438.
      Additionally, White contends that his prior Texas aggravated-assault
conviction does not qualify as a crime of violence.             White correctly
acknowledges that this argument is foreclosed by circuit precedent and raises
the issue only to preserve it for further review. United States v. Guillen-
Alvarez, 489 F.3d 197, 198-201 (5th Cir. 2007) (holding Texas aggravated-
assault conviction under Texas Penal Code Ann. § 22.02 qualifies as the
enumerated offense of aggravated assault and is therefore a crime of violence);
see also United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017).
      The judgment of the district court is AFFIRMED.




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