     Case: 15-20268       Document: 00513869344        Page: 1   Date Filed: 02/09/2017




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

                                       No. 15-20268
                                                                               Fifth Circuit

                                                                             FILED
                                                                       February 9, 2017

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

v.

DON JEROME SHEPHERD,

                Defendant - Appellant



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


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.*
EDITH H. JONES, Circuit Judge:
      This is an appeal that should not have been pursued.                       Appellant
Shepherd’s challenge to the PSR’s sentencing guidelines calculation was
brought to the district court’s attention; the court acknowledged some
uncertainty about the appropriate sentencing range; and the court explicitly
sought to “moot” the challenge. This the court did by issuing a sentence that
effectively accepts Shepherd’s objection. Not content with partial but palpable
success, he claims on appeal that the court’s pronouncement was too “vague”




      *   Judge Haynes concurs in the judgment only.
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                                   No. 15-20268
to withstand harmless error analysis.          We disagree.     The sentence is
AFFIRMED.
      Don Jerome Shepherd pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Shepherd received
a total offense level of 25 based, in part, on his prior Texas convictions for
aggravated assault, Tex. Penal Code § 22.02(a)(2), and delivery of a controlled
substance, Tex. Health & Safety Code § 481.112(a).          Shepherd’s Criminal
History Category of III yielded a guidelines range of imprisonment of 70 to 87
months.      Shepherd objected to the determination that his prior Texas
conviction for delivery of a controlled substance constituted a controlled
substance offense under the guidelines.        At sentencing, the district court
overruled his objection, but imposed a much lower sentence of 46 months
imprisonment and three years of supervised release. The district judge stated
that she wished to “moot” Shepherd’s objection.
         Shepherd contends on appeal that the court misapplied the guidelines
enhancements for both of the Texas convictions, neither of which is eligible to
serve as a predicate offense under U.S.S.G. § 4B1.2(b). We find, respectively,
harmless error and no plain error in the court’s determinations.
         First, it is correct that, after the court sentenced Shepherd, this court
declared that a Texas conviction for delivery of a controlled substance is not a
“controlled substance offense” within the meaning of the Sentencing
Guidelines, U.S.S.G. § 2K2.1(a)(2) (and therefore cannot serve as a predicate
offense under § 4B1.2(b)). United States v. Hinkle, 832 F.3d 569, 571 (5th Cir.
2016).
         Nonetheless, as Shepherd should have surmised from the sentencing
colloquy, the court’s error was harmless because it did not affect the district
court’s selection of the sentence imposed.         United States v. Rodriguez-
Rodriguez, 775 F.3d 706, 712 (5th Cir. 2015). Well aware of the legal nuances
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                                 No. 15-20268
of Shepherd’s argument, the district court stated her intent to “moot this
objection” by imposing a 46-month prison sentence. This sentence is at the
bottom of the guidelines range of 46-57 months, which would have applied if
the district court had granted Shepherd’s objection and found that his state
conviction was not a controlled substance offense. The record demonstrates
that the judge “thought the sentence it chose was appropriate irrespective of
the Guidelines range.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346
(2016). In these instances, “prejudice does not exist.” Id. The government
bears the burden to prove harmless error, United States v. Woods, 440 F.3d
255, 262 (5th Cir. 2006). But we cannot envision what is plausibly “harmful”
about a sentence that is not only one-third below the erroneous range, but also
is at the bottom of the correct range, and is issued for the express purpose of
obviating the possibility that the lower range will prevail. This point of error
may have legal substance but was meritless when viewed in context of the
record.
      Applying the sentencing guidelines is daily becoming more complex, in
part because of defense counsels’ accelerating creativity in challenging
guidelines calculations. To avoid the costs and administrative burdens of
resentencing, we have repeatedly urged courts in appropriate cases to explain
that they would have imposed the same sentence regardless of possible
mistakes in guidelines calculations.       See United States v. Ibarra-Luna,
628 F.3d 712, 718 (5th Cir. 2010).         Although clarity of intent must be
expressed, such statements do not require magic words. See, e.g., United States
v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008); United States v. Lemus-Gonzalez,
563 F.3d 88, 94 (5th Cir. 2009); United States v. Duhon, 541 F.3d 391, 396 (5th
Cir. 2008). When, as here, it is abundantly clear that the court wanted to
“moot” the defendant’s objection—by ordering a sentence that effectively


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                                 No. 15-20268
grants counsel’s objection—the appeal of the “sentencing error” makes no
sense. The “error” in adopting the higher guideline range is harmless.
      Shepherd next asserts that the district court plainly erred in classifying
his prior Texas conviction for aggravated assault, Tex. Penal Code §22.02(a)(2),
as a crime of violence under U.S.S.G. § 2K2.1(a)(2). Because Shepherd failed
to object to the district court’s enhancement in the lower court, this court
reviews for plain error. United States v. Price, 516 F.3d 285, 286–87 (5th Cir.
2008). His complaint fails at the first stage of plain error review, which is to
show that the court erred. United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012). Again, the conclusion of this analysis is obvious.
      Shepherd was convicted for aggravated assault under Tex. Penal Code
§ 22.02(a)(2), which provides:
      (a) A person commits an offense if the person commits assault as
          defined in Section 22.01 and the person:
          (1) causes serious bodily injury to another, including the
          person's spouse; or
          (2) uses or exhibits a deadly weapon during the commission of
          the assault.

Tex. Penal Code § 22.02(a) (2003). The guidelines define a crime of violence as
an offense that, inter alia, has as an element the use, attempted use, or
threatened use of physical force against the person of another.        U.S.S.G.
§ 4B1.2.
      Under the provision in the Armed Career Criminal Act (“ACCA”) that is
worded identically to § 4B1.2, this court found no plain error in holding that a
defendant’s Texas conviction for aggravated assault has as an element the
threatened use of physical force against the person of another. United States
v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015). Construing identically worded
provisions alike, Shepherd’s Texas conviction for aggravated assault is a crime



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of violence under § 4B1.2. See id; see also United States v. Guillen-Alvarez,
489 F.3d 197, 201 (5th Cir. 2007).
      We have previously rejected Shepherd’s assertion that this guideline is
unconstitutionally vague. United States v. Gonzalez-Longoria, 831 F.3d 670,
679–84 (5th Cir. 2016) (Jones, J., concurring). Further, the Supreme Court’s
recent decision in Mathis v. United States, 136 S. Ct. 2243 (2016), does not cast
doubt on our evaluation of the aggravated assault statute under the guidelines.
Because we have already held in Guillen-Alvarez, 489 F.3d at 200–01, that Tex.
Penal Code § 22.02(a)(2) qualifies as a conviction for the enumerated offense of
aggravated assault and is a crime of violence, it is “irrelevant whether the
challenged statutory alternatives are considered means or elements.” United
States v. Villasenor-Ortiz, No. 16-10366, 2017 WL 113917, at *3 (5th Cir.
Jan. 11, 2017).
      For the foregoing reasons, the sentence issued by the district court is
AFFIRMED.




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