     Case: 16-10078         Document: 00514104777          Page: 1     Date Filed: 08/07/2017




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                         No. 16-10078                                 FILED
                                                                                August 7, 2017

UNITED STATES OF AMERICA,                                                       Lyle W. Cayce
                                                                                     Clerk
                 Plaintiff - Appellee,

v.

ANTHONY DWAYNE CRENSHAW,

                 Defendant - Appellant.




                      Appeal from the United States District Court
                           for the Northern District of Texas
                                 USDC No. 4:14-CR-197


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge. *
PER CURIAM: **
       Anthony Crenshaw pleaded guilty to possession of a firearm as a
convicted felon. He received a ten-year sentence, based in part on sentencing
enhancements for obstruction of justice and for having two prior controlled
substance offenses. Crenshaw appeals his sentence, seeking to have it vacated



       *   District Judge of the Western District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10078
and remanded on the ground that neither enhancement was applicable.
Crenshaw’s arguments regarding the obstruction of justice enhancement are
unpersuasive. However, because application of the enhancement for prior
controlled substance offenses constitutes plain error and we exercise our
discretion to correct it, we VACATE the sentence and REMAND for
resentencing.
                                          I.
      The    district   court   applied        a   two-point   obstruction-of-justice
enhancement to Crenshaw’s offense level, adopting the PSR’s position that
“[t]he defendant filed an Affidavit of Fact which contained materially false
information, and as such, he has willfully attempted to obstruct or impede the
administration of justice with respect to the investigation and prosecution of
the instant offense.”    Because Crenshaw raised a timely objection to this
enhancement, our review of the district court’s factual findings is for clear
error. United States v. Miller, 607 F.3d 144, 147 (5th Cir. 2010). “A ruling that
those findings permit an obstruction-of-justice enhancement is a question of
law, reviewed de novo.” Id. at 148.
      Section 3C1.1 of the United States Sentencing Guidelines provides for a
two-level increase in a defendant’s offense level if:
      (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to
      the investigation, prosecution, or sentencing of the instant offense
      of conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B)
      a closely related offense . . . .
The commentary provides a non-exhaustive list of covered conduct, including
“providing materially false information to a judge or magistrate judge.” USSG
§ 3C1.1, comment 4(F).
      The affidavit of fact that formed the basis for the obstruction-of-justice
enhancement alleges that Crenshaw “was not given a warning of his
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                                      No. 16-10078
Constitution[al] and stat[ut]ory rights . . . .”            Crenshaw submitted this
affidavit to the court and directed his attorney to file a motion to suppress his
confession. The district court denied the motion to suppress, finding that “[i]t
is clear from the video of the interview that Defendant was read his Miranda
rights, he understood those rights, he nevertheless clearly desired to waive
those rights and speak to the officers, and his statements to the officers were
voluntarily made without threats, duress, or coercion.”                 Accordingly, the
district court did not err in its determination that Crenshaw’s affidavit of fact
provided materially false information to the court, triggering the obstruction-
of-justice enhancement.
       Crenshaw’s arguments to the contrary are unavailing. Crenshaw first
argues that his affidavit contained only legal conclusions and that the
obstruction-of-justice enhancement applies only to statements of fact. Even
assuming arguendo that the enhancement applies only to statements of fact,
Crenshaw’s argument fails because the affidavit contains the factual assertion
that Crenshaw was not given a warning. Crenshaw next argues that the
district court erred by applying the enhancement without finding that he
willfully obstructed or attempted to obstruct justice. However, the district
court adopted the factual statements in the PSR as its owns factual findings,
including the finding that Crenshaw “has willfully attempted to obstruct or
impede the administration of justice.”
                                            II.
       The district court also applied an enhanced base offense level under
USSG § 2K2.1, based on its determination that Crenshaw had two prior
convictions for controlled substance offenses. 1           Because Crenshaw did not



       1 Crenshaw asserts, and the government has not disputed, that the enhanced base
offense level applied by the district court is four levels higher than the offense level that
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                                       No. 16-10078
make a timely objection to this enhancement, our review is for plain error.
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). Thus,
we inquire “whether there was error at all; whether it was plain or obvious;
whether the defendant has been substantially harmed by the error; and
whether this court should exercise its discretion to correct the error in order to
prevent a manifest miscarriage of justice.” Id.
       The first three questions are easily answered in the affirmative. First,
the district court erred by counting Crenshaw’s Texas conviction for possession
with intent to deliver as one of the two prior controlled substance offenses
necessary to merit an enhanced base offense level under USSG § 2K2.1. See
United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017) (holding that the
Texas offense of possession with intent to deliver “does not qualify as a
controlled substance offense under the [Sentencing] Guidelines”). Second, that
error is plain even though Tanksley was decided after sentencing. See id.; see
also United States v. Valles, 484 F.3d 745, 759 (5th Cir. 2007) (“An error is
‘plain’ if it is clear under current law.”). Third, it is undisputed that the error
substantially harmed Crenshaw because he was sentenced at the top of an
erroneously calculated guideline range that was twenty-four months longer
than the top of a correctly calculated guideline range.
       The only remaining question is “whether this court should exercise its
discretion to correct the error in order to prevent a manifest miscarriage of
justice.” Chavez-Hernandez, 671 F.3d at 497. “This inquiry is dependent upon
the degree of the error and the particular facts of the case.” United States v.
Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016).




would have applied if he had only one prior conviction for a controlled substance offense. See
USSG § 2K2.1.
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                                  No. 16-10078
      Crenshaw emphasizes the degree of the error, noting that the twenty-
four-month discrepancy between the sentence he received and the sentence at
the top of a correctly calculated guideline range is greater than the eighteen-
month sentencing disparity that prompted us to exercise our discretion in
United States v. Price, 516 F.3d 285 (5th Cir. 2008).        See also Martinez-
Rodriguez, 821 F.3d at 664, 666–67 (vacating and remanding because error
resulted in thirty-six-month disparity); United States v. John, 597 F.3d 263,
285–89 (5th Cir. 2010) (vacating and remanding because error resulted in
“significant” sentencing disparity of twenty-one months); United States v.
Villegas, 404 F.3d 355, 364–65 & n.9 (5th Cir. 2005) (vacating and remanding
because defendant’s sentence was below the erroneously calculated guideline
range but five months above the correct guideline range). The government
emphasizes the particular facts of the case, noting Crenshaw’s recidivism and
extensive criminal history, which are factors that count against a decision to
exercise our discretion to correct sentencing error. See United States v. Flores,
601 F. App’x 242, 246–47 (5th Cir. 2015) (unpublished) (affirming sentence
despite twenty-six-month sentencing disparity because of criminal history).
      Having considered both the degree of the error and the particular facts
of this case, we choose to exercise our discretion to correct the district court’s
error. However, we express no view as to what sentence would be appropriate
on remand in light of the particular facts of this case. The district court
remains free to consider all relevant sentencing factors at a resentencing
hearing.
                                       III.
      For the reasons explained above, we conclude that the obstruction-of-
justice enhancement was not clearly erroneous but that the enhancement for
having two prior convictions for controlled substance offenses constitutes plain
error. Accordingly, we VACATE the sentence and REMAND for resentencing.
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