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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 13-51021                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                        January 2, 2015
                                                                  Lyle W. Cayce
                                           Plaintiff–Appellee          Clerk
v.

ALFONSO RODRIGUEZ–RODRIGUEZ,

                                           Defendant–Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before PRADO, ELROD, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
                           I.   BACKGROUND
      Defendant–Appellant Alfonso Rodriguez–Rodriguez (Rodriguez) pleaded
guilty to illegal reentry in violation of 8 U.S.C. § 1326. Rodriguez had
previously been convicted of stalking in violation of Texas Penal Code § 42.072.
In Rodriguez’s presentencing report (PSR), the probation officer recommended
a sixteen-level enhancement to Rodriguez’s offense level for a “crime of
violence” (COV) under U.S. Sentencing Guidelines Manual (U.S.S.G.)
§ 2L1.2(b)(1)(A)(ii) based on the Texas stalking conviction. The PSR calculated
Rodriguez’s total offense level at twenty-one, following a three-level downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E.1.1.                  The
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                                  No. 13-51021
Guidelines suggested a range of imprisonment of fifty-seven to seventy-one
months.
      At sentencing, Rodriguez objected to the sixteen-level sentencing
enhancement. Rodriguez argued that his conviction under the Texas stalking
statute was not a COV because the statute did not have as a necessary element
the use or threatened use of physical force. The proper Guidelines range, he
proposed, was fifteen to twenty-one months. The district court agreed that this
range would be correct without the sixteen-level enhancement.
      After a colloquy with counsel, the district court determined that
Rodriguez’s stalking conviction, as defined by the language of the indictment,
was for a COV under United States v. Mohr, 554 F.3d 604 (5th Cir. 2009), and
United States v. Rivas, 455 F. App’x 531 (5th Cir. 2011) (per curiam). After
overruling Rodriguez’s objection to the PSR’s Guidelines calculation, the
district court found the Guidelines range “fair and reasonable.”
      The court went on to say Rodriguez’s sentence “would be the same . . . .
no matter what system we use, guidelines/non-guidelines.” Providing the
rationale for this conclusion, the court stated:
            You engage—and I’m not taking about convictions and I’m
      not talk—taking uncharged conduct in terms of the commission of
      a crime per se into account. But you’ve engaged in a lot of reckless
      conduct over the course of your life that can be construed as
      assaultive. You’re an aggressive person. And you were lucky that
      you were not charged with the assault with a knife, wherein it was
      alleged that you were chasing another person with a vehicle—I
      mean with a knife. Excuse me. That was in ’03 and ’07.
            Once again, there was an allegation that you assaulted
      somebody, especially when you get drunk and you threaten to
      shoot that person.
             In ’07 you were involved in—I should take that back. You—
      it’s alleged that you were involved in a hit and run with an
      accident. And I did notice from the convictions there is one of those

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                                   No. 13-51021
      such convictions. In ’08 it was, again, alleged that you did the
      same thing; in June 26th of ’08.
            In June 29th of ’08 it was alleged that you engaged in [a]
      terroristic threat, where you threatened to kill a person.
            Given that you were charged and convicted of stalking and
      threatening somebody, you have a very aggressive and assaultive
      type of personality. And part of it is probably because of your
      alcohol use. I understand that. And the reason I say that is you’ve
      got—you have several DWI convictions, one which did not count,
      the Nashville, Tennessee one.
             There’s—in Paragraph 30 we have the accident involving
      damage to a vehicle, and then in the unclear—the fineable type of
      offenses only that didn’t count, you have public intoxication,
      possession of alcohol, and another possible intoxication. Which
      tells me that alcohol may be an issue for you. You get violent when
      you drink.
            . . . [T]he sentence I’m about to impose would be the same
      with or without [the G]uidelines. Although the Court is finding the
      [G]uidelines to be adequate.
      The district court sentenced Rodriguez to sixty months in prison and
three years of supervised release.
      Rodriguez timely appeals. He asks this Court to vacate his sentence and
remand his case to the district court.
                             II.   DISCUSSION
      The district court had jurisdiction under 18 U.S.C. § 3231. This Court
has jurisdiction to review the district court’s sentence under 18 U.S.C. § 3742
and 28 U.S.C. § 1291.
A.    Standard of Review
      Rodriguez asserts two distinct claims of procedural error. First, he
contends that his prior conviction under the Texas stalking statute is not for a
COV and therefore the district court erred in applying the sixteen-level



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Guidelines enhancement. Second, he argues that the court improperly based
its calculation of his non-Guidelines sentence on uncharged conduct. 1
       We apply a different standard of review to each of the two claims.
Because Rodriguez timely objected to the Guidelines calculation, we review it
for harmless error. See United States v. Martinez–Flores, 720 F.3d 293, 295,
300 (5th Cir. 2013). However, because Rodriguez objects to the non-Guidelines
calculation for the first time on appeal, we review it only for plain error. See
United States v. Williams, 620 F.3d 483, 493 (5th Cir. 2010) (citing United
States v. Olano, 507 U.S. 725, 731–32 (1993)). The former objection does not
suffice to preserve the latter claim of error. Cf. United States v. Mondragon–
Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (reviewing for plain error where
the defendant’s objection “sufficed to alert the district court of his disagreement
with the substance of the sentence, but not with the manner in which it was
explained”); United States v. Hernandez–Martinez, 485 F.3d 270, 272 (5th Cir.
2007) (“Were a generalized request for a sentence within the Guidelines
sufficient, a district court would not be given an opportunity to clarify its
reasoning or correct any potential errors in its understanding of the law at




       1 Rodriguez does not specifically challenge the substantive reasonableness of his
sentence. Although United States v. Gerezano–Rosales, 692 F.3d 393, 398 (5th Cir. 2012),
suggests that Rodriguez’s objection to the district court’s reliance on uncharged conduct could
arguably be construed as substantive, this Court has typically considered similar claims of
error to be procedural, see United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012), cert.
denied, 133 S. Ct. 1845 (2013); United States v. Stephens, 373 F. App’x 457, 461 (5th Cir.
2010) (per curiam) (unpublished); United States v. Newsom, 508 F.3d 731, 734 (5th Cir. 2007).
We therefore analyze the district court’s sentence for procedural error and decline to consider
any challenge to the substantive reasonableness of Rodriguez’s sentence. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993) (arguments not appearing in the body of Appellants’
briefs are deemed abandoned).
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                                 No. 13-51021
sentencing, and its efforts to reach a correct judgment could be nullified on
appeal.” (citation omitted)). We address each objection in turn.
B.    The Crime-of-Violence Enhancement
      We review the district court’s interpretation and application of the
Sentencing Guidelines—including the characterization of a prior offense—de
novo and its findings of fact for clear error. United States v. Klein, 543 F.3d
206, 213 (5th Cir. 2008).
      Whether a conviction under the Texas stalking statute is a COV is an
issue of first impression in this Court. The Guidelines define COV to include
several enumerated offenses and “any other offense under federal, state, or
local law that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” § 2L1.2 n.1(B)(iii). A defendant
uses force if he “intentionally avail[s] himself of that force.” United States v.
Vargas–Duran, 356 F.3d 598, 599 (5th Cir. 2004) (en banc). “If any set of facts
would support a conviction without proof of that component, then the
component most decidedly is not an element—implicit or explicit—of the
crime.” Id. at 605. Because stalking is not an enumerated offense, it can only
qualify as a COV as a “force offense.” See United States v. Calderon–Pena, 383
F.3d 254, 255–56 (5th Cir. 2004) (en banc).
      To determine whether a crime is a force offense, we look at the elements
of the offense in the statute of conviction, not at the defendant’s conduct. Id.
at 257; see also Taylor v. United States, 495 U.S. 575, 600 (1990) (setting out
the categorical approach). However, “if the statute of conviction contains a
series of disjunctive elements, this [C]ourt may look beyond the statute to
certain records made or used in adjudicating guilt to determine which subpart
of the statute formed the basis of conviction.” United States v. Moreno–Florean,
542 F.3d 445, 449 (5th Cir. 2008). The Court may consider the “charging papers


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                                  No. 13-51021
to see which of the various statutory alternatives were involved in a particular
case.” United States v. Andino–Ortega, 608 F.3d 305, 309 (5th Cir. 2010).
      The Texas stalking statute under which Rodriguez was convicted
contains disjunctive elements. See Tex. Penal Code § 42.072. Rodriguez
pleaded guilty to the following charging document:
      Rodriguez . . . knowingly engage[d] in conduct directed specifically
      toward [the victim, DG] that [he] knew or reasonably believed [DG]
      would regard as threatening bodily injury and death to [DG], to-
      wit: contacting [DG] by phone and threatening [DG], and the . . .
      conduct would cause a reasonable person to fear, and did cause
      [DG] to fear, bodily injury and death for [DG]. And . . . [Rodriguez]
      knowingly engage[d] in conduct directed specifically toward [DG]
      that [he] knew or reasonably believed [DG] would regard as
      threatening bodily injury and death to [DG], to-wit: coming to
      [DG]’s residence and threatening [DG], and the . . . conduct would
      cause a reasonable person to fear, and did cause [DG] to fear,
      bodily injury and death for [DG].
      When narrowed by the language of the indictment, the statute states in
relevant part:

      (a) A person commits an offense if the person, on more than one
          occasion and pursuant to the same scheme or course of
          conduct that is directed specifically at another person,
          knowingly engages in conduct . . . that:
       (1) . . . the actor knows or reasonably should know the other
           person will regard as threatening:
            (A)    bodily injury or death for the other person;
             ...
       (2) causes the other person . . . to be placed in fear of bodily
           injury or death . . . ; and
       (3) would cause a reasonable person to fear:
            (A)    bodily injury or death for himself or herself . . .
Tex. Penal Code § 42.072.


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      The Texas stalking offense for which Rodriguez was convicted is not a
force offense within the meaning of § 2L1.2. The use, attempted use, or
threatened use of physical force is not a required element of the statute under
a plain reading of the text. See Tex. Penal Code § 42.072. The statute
criminalizes behavior that another person fears is threatening bodily injury.
Id. But as this Court has consistently held, one can cause bodily injury without
the use or attempted use of physical force. See Andino–Ortega, 608 F.3d at 311
(concluding that the offense injury to a child “can be committed by intentional
act without the use of physical force by putting poison or another harmful
substance in a child’s food or drink”); United States v. Villegas–Hernandez, 468
F.3d 874, 882 (5th Cir. 2006) (holding that a Texas assault statute requiring
“that the defendant ‘intentionally, knowingly, or recklessly cause[s] bodily
injury to another’ . . . may be violated by the defendant so causing such injury
by means other than the actual, attempted, or threatened ‘use of physical force
against the person of another,’ and hence does not have such use of force as an
element” (alteration in original)); Calderon–Pena, 383 F.3d at 260 (stressing
that “[a]s a matter of simple logic,” an endangerment offense requiring that
the defendant “places a child younger than 15 years in imminent danger of . .
. bodily injury” “can—but need not—involve the application of physical force to
the child’s person” (quoting Tex. Penal Code Ann. § 22.041(c) (omission in
original)).
      It follows that the threat of bodily injury can occur even in the absence
of a threat to use physical force. See, e.g., Ploeger v. State, 189 S.W.3d 799, 808–
09 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (finding sufficient evidence to
support stalking conviction requiring reasonable fear of bodily injury or death
where defendant continually watched, followed, and sent gifts to victim). In
United States v. Cruz–Rodriguez, 625 F.3d 274, 275–77 (5th Cir. 2010) (per
curiam), this Court addressed a California criminal-threat statute that, like
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                                  No. 13-51021
the Texas stalking statute, prohibits a person from “willfully threaten[ing] to
commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement . . . be taken as a threat . . .
and thereby cause[] that person reasonably to be in sustained fear for his or
her own safety,” Cal. Penal Code § 422. We held that a conviction under this
California statute was not a COV because the defendant could be found guilty
of that offense under a set of facts not involving the actual, attempted, or
threatened use of physical force against another. Cruz–Rodriguez, 625 F.3d at
276–77; see also United States v. De La Rosa–Hernandez, 264 F. App’x 446 (5th
Cir. 2008) (per curiam) (unpublished) (noting that “threatening . . . to poison
another” does not involve force as defined by this Court).
      We hold that Rodriguez’s conviction under the Texas stalking statute, as
narrowed by the indictment, was not for a COV under § 2L1.2 of the Sentencing
Guidelines. Therefore, the district court erred in imposing a sixteen-level
enhancement. We turn next to whether the error was harmless.
      A   procedural    error   during   sentencing    (such   as   a   Guidelines
miscalculation) is harmless if it did not affect the district court’s selection of
the sentence imposed. United States v. Delgado–Martinez, 564 F.3d 750, 753
(5th Cir. 2009). The burden is on the Government to show the miscalculation
was harmless. United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014). The
government does not discharge its burden simply by pointing to the record to
“hypothesize some other explanation that might render the sentence
reasonable.” United States v. Johnson, 648 F.3d 273, 279–80 (5th Cir. 2011).
Rather, it must show “both (1) that the district court would have imposed the
same sentence had it not made the error, and (2) that it would have done so for




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                                       No. 13-51021
the same reasons it gave. . . .” United States v. Ibarra–Luna, 628 F.3d 712, 714
(5th Cir. 2010) (emphasis added). This is a “heavy burden.” Id. at 717–18.
       The Government argues that “[f]ully three pages of the sentencing
transcript reflect the district court’s review of the evidence and reasoning
behind its decision to eschew the guidelines and instead impose [a] sentence
based on the [18 U.S.C.] § 3553(a) sentencing factors.” Indeed, at Rodriguez’s
sentencing, the district court considered and rejected a sentence in the range
that would have been applicable without the sixteen-level COV enhancement
(here, fifteen to twenty-one months). The district court explicitly indicated that
it “would not have found that [to be] a satisfactory sentencing range.” It
reasoned that such a sentence “would not have adequately taken into account
[Rodriguez’s] history and characteristics.” It stressed: “I will be very honest,
Mr. Rodriguez, your sentence would be the same using the sentencing factors
or the guidelines. No matter what system we use, guidelines/non-guidelines,
your sentence would be the same.”
       Because here “the district court: (1) contemplated the correct Guideline
range in its analysis and (2) stated that it would have imposed the same
sentence even if that range applied,” we cannot say that the district court’s
miscalculation of Rodriguez’s Guidelines range caused him harm. United
States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008). 2 Based on the district court’s



       2  See also Ramos, 739 F.3d 253–54 (finding error harmless where the district court
focused on the nature of the offense and the § 3553(a) factors); United States v. Richardson,
676 F.3d 491, 512 (5th Cir. 2012) (finding error harmless where district court “(1) considered
all of the possible guidelines ranges that could have resulted if it had erred in applying one
or more of the enhancements to [defendant’s] offense level; (2) found all of those resulting
ranges to be insufficient in this case; and (3) stated that it would have imposed the same 65-
month sentence even if one of those ranges had applied”); United States v. Bonilla, 524 F.3d
647, 656 (5th Cir. 2008) (finding error harmless where district court stated, “I believe that I
have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is
the sentence that I would impose in any event”); cf. Martinez–Flores, 720 F.3d at 300–01
(finding error was not harmless where “the district court did not clearly state (and [the panel
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                                         No. 13-51021
lengthy recitation of reasons for imposing the sentence it selected, we are
persuaded that the court would have sentenced Rodriguez to sixty months in
prison even if it had correctly determined that his stalking conviction was not
for a COV. The Guidelines error was therefore harmless.
C.     The Uncharged Conduct
       Having determined that the Guidelines error in this case was harmless,
we now consider Rodriguez’s contention that the district court based its
calculation of his non-Guidelines sentence on improper factors under
§ 3553(a). At sentencing, Rodriguez did not object to either the PSR or the
district court’s reasons for concluding that a sixty-month sentence was
appropriate without the Guidelines. Before this Court, Rodriguez argues that
“the district court relied upon unreliable uncharged conduct in sentencing him
to 60 months’ imprisonment.” 3
       As noted, we review Rodriguez’s non-Guidelines sentence for plain error.
See Williams, 620 F.3d at 493–94. A defendant challenging his sentence on
plain-error review must demonstrate that “(1) the district court committed
error, (2) the error was plain or obvious, [and] (3) the error affected his
substantial rights.” Id. If all three elements are met, this Court has discretion



could not] glean from the record) that it would impose the same sentence if there had not
been a 16-level enhancement based on the prior crime of violence”).
         3 Rodriguez also cites this Court’s rule that bare arrest records, i.e., “arrests, standing

alone, do not constitute reliable information for sentencing purposes.” Johnson, 648 F.3d at
276 (internal quotation marks omitted). But to call the PSR’s descriptions of Rodriguez’s
uncharged conduct “bare” is misleading. A bare record contains 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.” Harris, 702 F.3d at 229. Here, in contrast, the least descriptive of the PSR’s arrest
reports reads: “On June 26, 2008, Tyler Police Department officers were dispatched to a hit
and run accident. The victim reported the defendant backed up and hit a vehicle in the
driveway and then drove away. On July 11, 2008, the victim advised he did not want to press
criminal charges. The case was cleared due to lack of prosecution.” Because the PSR
contained more than the “mere fact” of Rodriguez’s arrests, his challenge is properly
construed as going to the underlying reliability of the PSR’s factual content.
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                                       No. 13-51021
to correct the error if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Olano, 507 U.S. at 731–32.
       Rodriguez argues that the district court erred in taking into account the
uncharged conduct listed in his PSR. As we have previously held, “[a] district
court’s consideration, at sentencing, of prior arrests [is] plain error.” United
States v. Earnest Jones, 489 F.3d 679, 681 (5th Cir. 2007); see also United
States v. Robert Jones, 444 F.3d 430, 436 (5th Cir. 2006). That error would have
affected Rodriguez’s substantial rights if “there is a reasonable probability
that, but for the error, the court would have imposed a lesser sentence.”
Earnest Jones, 489 F.3d at 682 (citing United States v. Villegas, 404 F.3d 355,
364 (5th Cir. 2005)). 4
       Here, as in Williams, 620 F.3d at 494, “the district court’s lengthy . . .
discussion of other significant, permissible factors” undermines the claim that
the error affected Rodriguez’s substantial rights. The district court
enumerated several reasons why the fifteen- to twenty-month range was
inadequate. It mentioned Rodriguez’s past convictions for stalking, enticing a
child, and driving under the influence, as well as “the history and
characteristics of the defendant, the need to promote respect for the law and to
provide just punishment for the offense, [and] the need to deter future criminal
conduct and to protect the public.”
       Furthermore, on plain-error review, we have taken district courts at
their word when, as here, they disclaim reliance on improper factors. See


       4 This Circuit has occasionally applied a different standard to this prong of plain-error
review, asking instead whether the district court could impose the same sentence on remand.
See Earnest Jones, 489 F.3d at 682 (citing United States v. Ravitch, 128 F.3d 865, 869 (5th
Cir. 1997)). There is some doubt as to whether Ravitch’s objective test survived United States
v. Booker, 543 U.S. 220 (2005). See United States v. Davis, 602 F.3d 643, 647 n.6 (5th Cir.
2010). Because here, as discussed above, the § 3553(a) factors would permit the district court
to impose the same sentence on remand, this element of plain-error review is satisfied under
either standard. We need not decide the continuing validity of the Ravitch test.
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                                 No. 13-51021
United States v. Gonzalez-Achondo, 493 F. App’x 539, 540 (5th Cir. 2012) (per
curiam) (unpublished) (“Although the district court mentioned Gonzalez–
Achondo’s numerous prior arrests, the record reveals that the district court did
not base its sentence exclusively on those arrests nor did it give significant
weight to Gonzalez–Achondo’s arrest record.”). The district court in this case
explicitly stated, “I’m not . . . taking uncharged conduct in terms of the
commission of a crime per se into account.”
      Because the district court both disclaimed reliance on Rodriguez’s
uncharged conduct and justified the sentence it imposed with permissible
factors, we conclude that there is no reasonable probability that, but for the
error, it would have selected a lesser sentence. The error therefore did not
affect Rodriguez’s substantial rights.
                          III.   CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s sentence.




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