     Case: 17-10923       Document: 00514489553         Page: 1     Date Filed: 05/29/2018




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

                                                                                 FILED
                                     No. 17-10923                            May 29, 2018
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TERRY DIXON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-24-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Terry Dixon was charged with possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1), and a jury found him guilty. He challenges
his conviction and sentence.
       Concerning the former, he claims his predicate offense is not a felony
because he was punished under Texas Penal Code § 12.44(a) as if he had
committed a misdemeanor, according to the terms of his plea bargain.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-10923

Whether a prior conviction qualifies as a predicate felony offense for a
conviction of possession of a firearm as a felon under 18 U.S.C. § 922(g)(1) is a
purely legal question. United States v. Broadnax, 601 F.3d 336, 345 (5th Cir.
2010). “Consequently, our review is plenary.” United States v. Daugherty, 264
F.3d 513, 514 (5th Cir. 2001) (internal quotation marks and citation omitted).
      A person “who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year” is prohibited from possessing a
firearm. 18 U.S.C. § 922(g)(1). “What constitutes a conviction of such a crime
shall be determined in accordance with the law of the jurisdiction in which the
proceedings were held.” 18 U.S.C. § 921 (a)(20).
      Under Texas Penal Code § 12.44(a), defendant is “prosecuted for a felony
but punished for a misdemeanor”; on the other hand, under § 12.44(b),
defendant is actually “prosecuted for a misdemeanor”, despite being charged
with a state jail felony. Meek v. State, 851 S.W.2d 868, 869 (Tex. Crim. App.
1993) (en banc); Marbut v. State, 58 S.W.3d 239, 240–41 (Tex. App. 2001);
Arriola v. State, 49 S.W.3d 374, 375–76 (Tex. App. 2000). Therefore, a Texas
jail felony is one “punishable by imprisonment for a term exceeding one year”,
regardless whether it was punished as a misdemeanor under § 12.44(a).
United States v. Rivera-Perez, 322 F.3d 350, 352 (5th Cir. 2003). The court
correctly treated Dixon’s prior conviction as a predicate felony. United States
v. Harrimon, 568 F.3d 531, 533–34 & n.3 (5th Cir. 2009); Rivera-Perez, 322
F.3d at 351–52.
      Finding Dixon had a “history of assaultive, threatening, and harassing
behavior”, the court varied upward from an advisory Sentencing Guidelines
range of 18 to 24 months’ imprisonment and sentenced Dixon to 60 months’
imprisonment and three years of supervised release. Although post-Booker,
the Guidelines are advisory only, the district court must avoid significant



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                                  No. 17-10923

procedural error, such as improperly calculating the Guidelines sentencing
range. Gall v. United States, 552 U.S. 38, 48–51 (2007). If no such procedural
error exists, a properly preserved objection to an ultimate sentence is reviewed
for substantive reasonableness under an abuse-of-discretion standard. Id. at
51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009).
In that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Dixon
claims his sentence is procedurally and substantively unreasonable.
      He claims the court procedurally erred when it selected the sentence
because it stated at sentencing that it considered facts Dixon “admitted in the
factual resume”. That item did not, however, exist. Nevertheless, because
Dixon did not preserve this issue in district court, review is only for plain error.
E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Under that standard, Dixon must show a forfeited plain error (a clear or
obvious error, rather than one subject to reasonable dispute) that affected he
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes that showing, we have the discretion to correct such reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
      But, Dixon does not point to any incorrect factual findings that he
attributes to the district court’s reliance on the nonexistent factual resume.
Therefore, he has not shown the court’s misstatement affected his substantial
rights. Id.
      Dixon also claims the court procedurally erred by relying, in part, on his
prior arrests that did not result in convictions as a ground for the upward
variance.     The presentence investigation report (PSR) contained factual



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                                 No. 17-10923

recitations of Dixon’s prior conduct leading to his arrests that “had an adequate
evidentiary basis with sufficient indicia of reliability”, and Dixon “offered no
testimony or other evidence . . . to rebut the information in the PSR”.
Accordingly, the court did not procedurally err by considering Dixon’s prior
arrests in deciding his sentence. United States v. Fuentes, 775 F.3d 213, 220
(5th Cir. 2014) (internal quotation marks and citation omitted).
      Further, he fails to show his sentence: “(1) does not account for a factor
that should have received significant weight, (2) gives significant weight to an
irrelevant or improper factor, or (3) represents a clear error of judgment in
balancing the sentencing factors”. As a result, Dixon has not shown the court
abused its discretion by imposing a substantively unreasonable sentence.
United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      For his final issue, Dixon raises another unpreserved claim of error: The
court impermissibly delegated its sentencing authority to the probation officer
by imposing two special conditions of supervised release. Those conditions
require him to “participate in mental health treatment services as directed by
the probation officer until successfully discharged” and to “participate in a
program approved by the probation officer for treatment of narcotic or drug or
alcohol dependency”.
      Although a court may not delegate its authority “to decide whether a
defendant will participate in a treatment program”, it may delegate decisions
regarding the details of a treatment-related condition.        United States v.
Franklin, 838 F.3d 564, 568 (5th Cir. 2016) (emphasis in the original) (internal
quotation marks and citations omitted). In Franklin, the written judgment
stated that the defendant was “required” to participate in a treatment program
“as deemed necessary and approved by the probation officer”, and, therefore,
created an “ambiguity regarding whether the district court intended to



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                                No. 17-10923

delegate authority not only to implement treatment but to decide whether
treatment was needed”. Id. at 567–68. Dixon’s two challenged conditions of
supervised release do not include the “as deemed necessary” language that
created ambiguity in Franklin. Absent any precedent directly supporting his
argument, Dixon cannot prevail on plain-error review. United States v. Evans,
587 F.3d 667, 671 (5th Cir. 2009).
      AFFIRMED.




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