     Case: 11-11173       Document: 00512220704         Page: 1     Date Filed: 04/25/2013




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

                                                                            FILED
                                                                           April 25, 2013

                                       No. 11-11173                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTONIO FLETCHER,

                                                  Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                  3:11-CR-42-1


Before DeMOSS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Appellant Antonio Fletcher appeals the imposition of a 51 month sentence
of imprisonment, arguing that the district court erred by including a juvenile
conviction in Fletcher’s criminal history score. Because any error by the district
court was not plain, we affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     Case: 11-11173       Document: 00512220704         Page: 2     Date Filed: 04/25/2013



                                       No. 11-11173


                                              I.
       On December 6, 2011, Antonio Fletcher pleaded guilty to possession of a
firearm by a convicted felon. The presentence report (PSR) indicated that
Fletcher had three prior Texas state criminal convictions, including assault,
criminal mischief, and aggravated robbery. On January 16, 2003, Fletcher was
placed on one year of probation for the assault and criminal mischief offenses.
While on probation, Fletcher was arrested for aggravated robbery. His probation
was revoked on November 13, 2003, and Fletcher was committed to the Texas
Youth Commission (TYC) for an indeterminate term. On January 20, 2004,
Fletcher pleaded guilty as an adult to the aggravated robbery and was sentenced
to six years imprisonment. Fletcher was subsequently discharged from TYC
custody on February 6, 2004, and was immediately incarcerated by the Texas
Department of Criminal Justice (TDCJ) to serve his sentence for the aggravated
robbery offense. On September 9, 2009, Fletcher was discharged from TDCJ
without parole. On February 7, 2010, Fletcher committed the instant offense of
felon in possession of a firearm.
       For sentencing on the instant offense, Fletcher was assigned two criminal
history points for the juvenile assault conviction pursuant to U.S. Sentencing
Guidelines Manual § 4A1.2(d)(2)(A), which directs courts to add two points “for
each adult or juvenile sentence to confinement of at least sixty days if the
defendant was released from such confinement within five years of his
commencement of the instant offense.” No criminal history points were initially
assigned to Fletcher’s juvenile adjudication of criminal mischief conviction.1


       1
         Because Fletcher’s juvenile assault conviction was a misdemeanor, the assignment
of criminal history points to this conviction was incorrect. The Government argued at
sentencing, however, that the court could assign two criminal history points to Fletcher’s
felony juvenile criminal mischief conviction. Fletcher did not challenge the imposition of two
criminal history points on these grounds and the criminal history points were subsequently

                                              2
     Case: 11-11173       Document: 00512220704         Page: 3       Date Filed: 04/25/2013



                                       No. 11-11173

       Fletcher filed written objections to the PSR, objecting to the assignment
of the two criminal history points for his juvenile conviction. The Government
responded that when Fletcher received an indeterminate sentence he was
committed to the TYC until his twenty-first birthday. See In re J.H., 150 S.W.3d
477, 480 n.1 (Tex. App.—Austin 2004, pet denied) (“An indeterminate sentence
. . . commits a juvenile . . . until at most the juvenile’s twenty-first birthday.”)
(citing TEX. HUM . RES. CODE ANN. § 61.084). The government further asserted
that under Fifth Circuit case law, the maximum possible term under an
indeterminate sentence determines the length of the sentence imposed, and not
the amount of time actually served. See United States v. Quinonez-Terrazas, 86
F.3d 382, 383 (5th Cir. 1996). Thus, the government argued, Fletcher’s sentence
for criminal mischief sentence ended on his 21st birthday, May 6, 2007, which
was within five years of the commencement of the instant firearm offense on
February 7, 2010.
       At sentencing, Fletcher repeated his written objection to the assignment
of two criminal history points based on his juvenile criminal mischief conviction.
The district court asked whether Fletcher’s counsel agreed with the Government
that an indeterminate juvenile sentence ends on the prisoner’s twenty-first
birthday. Fletcher’s counsel answered: “I am acknowledging . . . current Fifth
Circuit case law.” The district court asked again whether the Government had
correctly represented this court’s case law, and counsel agreed that under the
cited law the two levels “could be assessed.” The district court stated, “[t]hat is
another way of saying they are right without agreeing with them” and overruled
Fletcher’s objection to the assignment of the criminal history points for the
juvenile adjudication. Fletcher’s level–20, category III sentencing guidelines
range was 41–51 months of imprisonment. The district court imposed a 51



assigned on the basis of the juvenile criminal mischief conviction.

                                              3
    Case: 11-11173     Document: 00512220704     Page: 4   Date Filed: 04/25/2013



                                  No. 11-11173

month sentence of imprisonment, finding that such sentence “would be fair and
reasonable under the circumstances of this case.”
                                       II.
      This court reviews a district court’s guidelines interpretations de novo and
reviews findings of fact for clear error. United States v. Le, 512 F.3d 128, 134
(5th Cir. 2007). If a defendant does not challenge the application of the
guidelines before the district court, this court reviews for plain error only. See
United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995).
                                       A.
      On appeal, Fletcher asserts that the district court erred when imposing
two criminal history points for his juvenile conviction, arguing that he completed
his indeterminate sentence on the juvenile conviction when discharged from TYC
custody in 2004, which was not within five years of the commencement of the
2010 firearm offense. The Government argues that Fletcher waived any
argument that the district court erred by imposing two criminal history points
for the juvenile conviction because Fletcher conceded that the imposition of the
criminal history points was correct under this court’s case law. Fletcher contends
that although he agreed that our case law supported the government’s position,
he maintained his general objection to the imposition of the two criminal history
points.
      At sentencing, Fletcher’s counsel had the following exchange with the
district court:
             COUNSEL: [T]he two points should not have been
             assessed for the misdemeanor juvenile offense. I do
             recognize the case law that the government has
             submitted with regard to the indeterminate sentence
             and would renew our objection and rest on the written
             materials.




                                        4
    Case: 11-11173     Document: 00512220704      Page: 5    Date Filed: 04/25/2013



                                  No. 11-11173

            COURT: . . . I want to make certain what your position
            is. . . . [W]hat is your position with respect to the
            government’s response [in regard to indeterminate
            sentences]?

            COUNSEL: Your Honor, the Fifth Circuit case law
            cited by the government does discuss indeterminate
            sentences, and it would appear that the indeterminate
            sentence that Mr. Fletcher was subject to . . . would
            have lasted into the five-year time period for the
            indigent offense, and so the defense agrees that those
            two levels could be assessed.

            COURT: All right, just so the record is clear, you in
            essence agree[ ] with the government, is that correct?

            COUNSEL: I am acknowledging . . . the current Fifth
            Circuit case law.

      A defendant waives an issue through “the intentional relinquishment of
a known right.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006).
An issue is forfeited through “the failure to make the timely assertion of a right.”
Id. “Forfeited errors are reviewed under plain error standard; waived errors are
entirely unreviewable.” Id.
      When pressed, Fletcher agreed that the case law cited by the government
would foreclose a challenge to the imposition of the criminal history points when
the relevant release date was Fletcher’s twenty-first birthday. But in context,
Fletcher did not intentionally relinquish his right to challenge the imposition of
the two criminal history points such that his sentence is not reviewable.
However, the specific objection Fletcher raises on appeal, whether the imposition
of the criminal history points was correct based on his release date from TYC
custody, was not raised before the district court. “[O]bjections that are too vague
are reviewed on appeal for plain error because they cannot alert the court to the
legal argument the party now presents.” See United States v. Dominguez-

                                         5
    Case: 11-11173      Document: 00512220704       Page: 6   Date Filed: 04/25/2013



                                     No. 11-11173

Alvarado, 695 F.3d 324, 327-28 (5th Cir. 2012) (internal quotation marks and
alterations omitted); see also United States v. Rodriguez, 15 F.3d 408, 414 (5th
Cir. 1994) (“A party must raise a claim of error with the district court in such a
manner so that the district court may correct itself and thus, obviate the need
for our review.” (internal quotation marks omitted)). Thus our review of this
issue is for plain error only. Id.
                                         B.
      To establish plain error, Fletcher must show (1) an error (2) that is plain
or obvious and (3) that affected his substantial rights. See United States v.
Olano, 507 U.S. 725, 732–37 (1993); United States v. Infante, 404 F.3d 376, 394
(5th Cir. 2005). Even if Fletcher can demonstrate plain error, this court has the
discretion to remedy the error “only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Puckett v. United States,
556 U.S. 129, 135 (2009) (quotation marks and internal marks omitted).
      Fletcher argues that the relevant date for determining whether he was
released from confinement on his juvenile conviction within five years of
committing the instant firearm offense was the date he was released from TYC
custody. Fletcher asserts that because he was released from TYC custody on
February 6, 2004, his release was more than five years before he committed the
instant firearm offense and thus the two criminal history points cannot be
assessed. The government responds that there is no Fifth Circuit case law
addressing whether a discharge from juvenile custody constitutes a release
within the meaning of the sentencing guidelines and therefore any alleged error
cannot be plain or obvious.
      Because this court has not resolved whether a discharge from TYC custody
into TDCJ custody for a prisoner to serve a new, adult sentence constitutes a
release under § 4A1.2, any alleged error on the part of the district court was not
plain. See United States v. Jackson, 549 F.3d 963, 978 (5th Cir. 2008) (finding

                                          6
    Case: 11-11173    Document: 00512220704     Page: 7   Date Filed: 04/25/2013



                                 No. 11-11173

that an error was not plain when it involved an issue of first impression).
Because Fletcher has not demonstrated an error that was plain or obvious, there
is no plain error. His sentenced is affirmed.
AFFIRMED.




                                       7
