     Case: 17-40528      Document: 00514412942         Page: 1    Date Filed: 04/03/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-40528
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                             April 3, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

COREY HAMMON GREEN,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 6:16-CR-10-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Corey Hammon Green appeals his guilty plea conviction and 151-month
sentence for witness retaliation, in violation of 18 U.S.C. § 1513(b)(2). For the
first time on appeal, Green argues that the district court failed to admonish
him correctly about the elements of the offense and failed to confirm that his
plea was supported by a sufficient factual basis. He therefore asserts that his
plea was unknowing and involuntary.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40528

      Where, as here, a defendant does not object to Federal Rule of Criminal
Procedure 11 errors in the district court, this court reviews for plain error. See
United States v. Brown, 328 F.3d 787, 789 (5th Cir. 2003). To show reversible
plain error, the defendant must show that the error was clear or obvious and
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, this court has the discretion to correct the
error but only if it “seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id.
      Green contends that the district court failed to ensure that he was aware
of the “crucial elements” of the witness retaliation charge to which he was
pleading, as required by FED. R. CRIM. P. 11(b)(1)(G).         However, both the
rearraignment transcript and record as whole show that the district court
sufficiently confirmed Green’s understanding of the nature of the charges
against him. See United States v. Reyes, 300 F.3d 555, 559-60 (5th Cir. 2002);
United States v. Lujano-Perez, 274 F.3d 219, 225-26 (5th Cir. 2001); 18 U.S.C.
§ 1513(b)(2); see also United States v. Vonn, 535 U.S. 55, 59 (2002). Because a
reasonable person would not doubt that Green understood the charge to which
he was pleading, he has not shown any clear or obvious error in connection
with the district court’s explanation of the charge or its implicit conclusion that
he understood the charge against him. See Reyes, 300 F.3d at 559; see also
Puckett, 556 U.S. at 135.
      The challenge to the factual basis that Green now raises is conflated with
his claim that the district court failed to confirm that he understood the
elements of the offense; he asserts that he disagreed with the Government’s
recitation of the facts and that the record is thus unclear whether he was aware
he was pleading guilty to causing bodily injury, causing property damage, or
threatening to do so under § 1513(b)(2). The argument is belied by the record,



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                                  No. 17-40528

which shows that Green admitted having hit a fellow inmate and causing him
bodily injury, that he intended to do so in retaliation for the inmate’s role as a
witness in the drug case against him, and that his only disagreement was with
the characterization of the incident as a one-sided assault rather than a mutual
fight. The record as a whole shows that the district court confirmed that the
conduct admitted by Green was sufficient to constitute the offense of witness
retaliation, and Green fails to show any plain error in connection with the
factual basis for his plea. See United States v. Trejo, 610 F.3d 308, 313, 317
(5th Cir. 2010); see also Puckett, 556 U.S. at 135.
       The majority of Green’s appellate brief is devoted to the newly raised
argument that the district court erred in sentencing him as a career offender
under U.S.S.G. §§ 4B1.1 and 4B1.2. More specifically, he contends that the
district court erred in determining that the instant conviction for witness
retaliation was a crime of violence triggering application of the career offender
enhancement. Because he did not raise the argument in the district court,
plain error review also applies to this claim. See Puckett, 556 U.S. at 135;
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
      Green now contends that his statute of conviction, § 1513(b)(2), is
indivisible and that the least culpable means of committing the offense,
threatening to cause damage to the property of another person, does not have
as an element the use, threatened use, or attempted use of force, meaning that
it cannot be a crime of violence for purposes of the career offender
enhancement. As both parties acknowledge, neither this court nor any other
circuit has addressed the question whether witness retaliation under
§ 1513(b)(2) is a crime of violence or whether that statute is divisible or
indivisible. That being so, Green cannot show that the alleged error is clear or
obvious under current law rather than subject to reasonable dispute. See



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Puckett, 556 U.S. at 135; United States v. Olano, 507 U.S. 725, 734 (1993) (“At
a minimum, court of appeals cannot correct an error . . . unless the error is
clear under current law.”); see also United States v. Garcia-Gonzalez, 714 F.3d
306, 318 (5th Cir. 2013) (stating that, when an appellant raises an issue of first
impression, this court will “conclude that any error was not plain or obvious.”).
Consequently, he fails to meet his burden under plain error review.           See
Puckett, 556 U.S. at 135.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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