     Case: 16-11258      Document: 00514241658         Page: 1    Date Filed: 11/17/2017




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

                                      No. 16-11258                                FILED
                                                                          November 17, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee

v.

KIANDRICK ONICK,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-25-1


Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Kiandrick Onick pleaded guilty to being a felon in possession of a firearm
and was sentenced to thirty-two months of imprisonment. The district court,
using the 2015 version of the Sentencing Guidelines, calculated an advisory
Guidelines range of thirty-seven to forty-six months of imprisonment after
applying an enhancement under U.S.S.G. § 2K2.1(a)(4)(A).                               Section
2K2.1(a)(4)(A) provides for an enhancement if the defendant sustained a prior


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11258
“felony conviction of either a crime of violence or a controlled substance
offense.” The district court determined that Onick’s prior Texas conviction for
delivery of a simulated controlled substance under section 482.002(a)(1) of the
Texas Health & Safety Code (THSC) constituted a “controlled substance
offense.”
      Onick appeals his sentence, challenging the district court’s application
of the enhancement. He argues, for the first time on appeal, that his conviction
under THSC section 482.002(a)(1) was not a “controlled substance offense”
within the meaning of the Guidelines because the Texas statute can be violated
by merely making an offer to sell a controlled substance. Because Onick did
not challenge the district court’s enhancement on those grounds below, we
review his challenge for plain error. See Puckett v. United States, 556 U.S. 129,
133–34 (2009). To succeed on plain-error review, an appellant must show (1)
a forfeited error (2) that is clear or obvious and (3) that affects his substantial
rights.     See id. at 135.   If he makes that showing, we may exercise our
discretion “to remedy the error . . . if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (cleaned up). The
Government concedes that Onick’s argument is correct and that deeming
THSC section 482.002(a)(1) a controlled substance offense is plainly erroneous.
However, the Government contends that the error did not affect Onick’s
substantial rights.
      “In the context of sentencing, an error affects an appellant’s substantial
rights when there is a reasonable probability that, but for the error, he would
have received a lesser sentence.” United States v. Kirkland, 851 F.3d 499, 503
(5th Cir. 2017) (cleaned up).      The application of the enhancement under
§ 2K2.1(a)(4)(A) resulted in an increase in Onick’s Guidelines range from
between eighteen and twenty-four months of imprisonment to between thirty-
seven and forty-six months of imprisonment. The Supreme Court has held that
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                                 No. 16-11258
“[i]n most cases a defendant who has shown that the district court mistakenly
deemed applicable an incorrect, higher Guidelines range has demonstrated a
reasonable probability of a different outcome.” Molina-Martinez v. United
States, 136 S. Ct. 1338, 1346 (2016). The Government argues, however, that
Onick failed to show an effect on his substantial rights. It contends that the
same Guidelines range would be supported by another one of Onick’s prior
convictions, his Texas conviction for deadly conduct by discharging a firearm
under section 22.05 of the Texas Penal Code (TPC), which, according to the
Government, constitutes a crime of violence under § 2K2.1.
      Section 2K2.1 does not have its own freestanding definition of a crime of
violence; instead, it incorporates that term’s definition at U.S.S.G. § 4B1.2(a).
See § 2K2.1 cmt. n.1 ¶ 3.      Section 4B1.2(a), in the 2015 version of the
Guidelines, defines a crime of violence to include an offense that “involves use
of explosives.”   The Government asserts that Onick’s conviction of deadly
conduct by discharging a firearm necessarily “involves use of explosives,” as it
maintains that, for purposes of the Guidelines, the gunpowder contained in
firearm ammunition is an “explosive” and discharging the firearm is “use” of
that explosive.
      In United States v. Dixon, 265 F. App’x 383, 385 (5th Cir. 2008), we held
that TPC section 22.05(b)(2) does not constitute a crime of violence under
§ 4B1.2. After the parties filed their briefs, this court issued its opinion in
United States v. Perlaza-Ortiz, 869 F.3d 375 (5th Cir. 2017). In Perlaza-Ortiz,
the district court applied a crime-of-violence enhancement under U.S.S.G.
§ 2L1.2 (2015) based on the defendant’s prior conviction under TPC section
22.05(b). 869 F.3d at 376. On appeal, we determined that section 22.05(b) was
not divisible. Id. at 380. Thus, expressly relying upon our prior holding in
Dixon that a conviction under TPC section 22.05(b)(2) does not constitute a


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                                  No. 16-11258
crime of violence, we concluded that the district court erred in applying the
crime-of-violence enhancement. See Perlaza-Ortiz, 869 F.3d at 377 n.2.
      The Government contends that Perlaza-Ortiz has no impact on its
argument in this appeal because that case involved a crime-of-violence
enhancement under a different Guidelines provision, § 2L1.2, which has a
different definition of crime of violence. But the Government overlooks that
Perlaza-Ortiz adopted and expressly followed our prior holding in Dixon that
TPC “[s]ection 22.05(b)(2) cannot support a crime-of-violence enhancement.”
Perlaza-Ortiz, 869 F.3d at 377 n.2 (citing Dixon, 265 F. App’x at 385). And, as
previously noted, in Dixon, we held that TPC section 22.05(b)(2) does not
constitute a crime of violence under § 4B1.2, the same provision that supplies
the applicable definition in the instant case. 265 F. App’x at 385. We therefore
reject the Government’s contention that a crime-of-violence enhancement
would have supported the Guidelines range applied by the district court in
Onick’s case.    Accordingly, the erroneous enhancement affected Onick’s
substantial rights.
      We will exercise our discretion to correct a plain, forfeited error affecting
substantial rights only where “the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” United States v. Olano, 507 U.S.
725, 736 (1993) (cleaned up). In evaluating this aspect of plain-error review,
we consider the particular facts and degree of error in the instant case and
compare those factors to other cases that have turned on the fourth prong.
United States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016).
      As previously discussed, in the absence of the erroneous enhancement,
Onick’s Guidelines range would have been reduced from between thirty-seven
and forty-six months of imprisonment to between eighteen and twenty-four
months of imprisonment. We have found smaller disparities to warrant the
exercise of our discretion to correct plain errors. See, e.g., United States v.
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Guillen-Cruz, 853 F.3d 768, 775 (5th Cir. 2017) (error resulted in sentencing
range increase from between ten and sixteen months to between eighteen and
twenty-four months); United States v. Mudekunye, 646 F.3d 281, 289–91 (5th
Cir. 2011) (error resulted in sentencing range increase from between sixty-
three and seventy-eight months to between seventy-eight and ninety-seven
months). We therefore exercise our discretion to correct the error. Accordingly,
we VACATE the district court’s sentence and REMAND for resentencing.




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