     Case: 19-10324      Document: 00515402051         Page: 1    Date Filed: 05/01/2020




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

                                                                                FILED
                                      No. 19-10324                           May 1, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

MATTHEW STEVEN MERRILL,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:18-CR-46-1


Before SMITH, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Matthew Merrill pleaded guilty to possession of a firearm and
ammunition by a person convicted of a misdemeanor crime of domestic
violence. Merrill now challenges the sufficiency of his plea given the statutory
language of 18 U.S.C. § 921(a)(33). Finding no plain error, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 19-10324
                                        I.
      Merrill pleaded guilty to the first count of a two-count grand jury
indictment. In doing so, he admitted that he had previously been convicted of
a misdemeanor crime of domestic violence that “meets all the requirements of
Title 18, United States code, Section 921(a)(33)” and that he later possessed
both a shotgun and ammunition.          The presentence report explained that
Merrill’s prior misdemeanor domestic-assault conviction involved the
nineteen-year old Merrill’s “striking his father . . . result[ing] in lacerations to
his father’s face.” The district court imposed a Guidelines sentence of thirty-
seven months’ imprisonment and a year of supervised release.
      Merrill timely filed this appeal to challenge the sufficiency of the factual
basis for his plea, arguing that the federal misdemeanor domestic assault
statute, 18 U.S.C. § 921(a)(33), does not apply to a son hitting his father.
                                        II.
      Both parties agree that Merrill’s plea agreement does not bar his
challenge to the sufficiency of the factual basis for his plea. United States v.
Ortiz, 927 F.3d 868, 873 (5th Cir. 2019). Both parties also agree that Merrill
did not raise that claim in district court, so the proper standard of review is
plain error. Id. at 872. On plain-error review, the defendant must (1) establish
an error (2) that is clear or obvious and (3) affected the defendant’s substantial
rights. Id. If those three conditions are met, this court may exercise its
discretion to correct the error if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.”      Id. (quoting Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1905 (2018)).
      A court must determine that there is a factual basis for a guilty plea
before entering judgment on that plea. FED. R. CRIM. P. 11(b)(3). The factual
basis must “be sufficiently specific to enable the district court to compare the


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                                 No. 19-10324
conduct admitted by the defendant with the elements of the offense charged.”
United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).
      Section 922(g)(9) renders it unlawful for a person “who has been
convicted in any court of a misdemeanor crime of domestic violence” to
knowingly own or possess a firearm and ammunition. 18 U.S.C. § 922(g)(9).
Section 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as an
offense that is “committed by a current or former spouse, parent, or guardian
of the victim, . . . or by a person similarly situated to a spouse, parent, or
guardian of the victim.” 18 U.S.C. § 921(a)(33)(A).
      Merrill argues on appeal that his prior misdemeanor conviction for
beating his father does not establish that his “conviction meets all the
requirements of . . . Section 921(a)(33).” Merrill was convicted of domestic
assault under the Texas Penal Code, which defines domestic assault pursuant
to   consanguinity    or   affinity—more    broadly   than    the   definition   in
§ 921(a)(33)(A). See TEX. PENAL CODE § 22.01(a); TEX. FAMILY CODE §§ 71.003,
71.004; TEX. GOV’T CODE § 573.022. He argues that, in contrast to the Texas
statute, § 921(a)(33)(A) does not cover a son’s assaulting his father. Thus,
Merrill claims, the Government cannot establish the necessary relationship in
the predicate charge for a valid guilty plea.
      Merrill’s challenge to the factual basis of his plea is “novel” and “not
entirely clear under the existing case authority.” Trejo, 610 F.3d at 319. Even
if Merrill could ultimately demonstrate error in his guilty plea, any such error
is not obvious or clear, as required under our plain-error precedents. See
United States v. Alvarado-Casas, 715 F.3d 945, 952 (5th Cir. 2013) (“We
perceive no plain error in the district court’s acceptance of Alvarado–Casas’s
sworn statement of guilt, as his proposed interpretation of [the statute] is not
compelled by the plain language of the statute or a binding judicial
construction of it.”); United States v. Broussard, 669 F.3d 537, 550 (5th Cir.
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                                 No. 19-10324
2012) (“Considering the caselaw . . . leads to one conclusion: any error by the
district court is subject to reasonable dispute. By definition, that is not plain
error.”) (citing Puckett v. United States, 556 U.S. 129, 135 (2009)). Therefore,
Merrill cannot meet the burden required for relief under plain-error review.
                                      ***
      As the district court did not plainly err, we affirm.




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