     Case: 11-30115     Document: 00511668926         Page: 1     Date Filed: 11/17/2011




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

                                                                            FILED
                                                                        November 17, 2011
                                     No. 11-30115
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

HOWARD HARRIS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:09-CR-120-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Howard Harris challenges his conviction and 95-month prison sentence for
assaulting, resisting, and impeding federal officers, in violation of 18 U.S.C.
§ 111. He contends the district court erred by: making a prejudicial remark that
deprived him of a fair trial; sentencing him as a career offender; and, imposing
a consecutive sentence without articulating reasons. Harris does not contest the
substantive reasonableness of that sentence. As Harris did not raise these
contentions before the district court, review is only for plain error. E.g., United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30115

States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008). To show reversible plain
error, Harris must show a forfeited error that is clear or obvious and that affects
his substantial rights. E.g., Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). If he does so, 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. With respect to plain error at sentencing, the appellant bears
the burden of showing a reasonable probability that, but for the district court’s
error, he would have received a lower sentence. United States v. Davis, 602 F.3d
643, 647 (5th Cir. 2010).
      Regarding Harris’ conviction, in overruling a Government objection during
cross-examination of Harris (that he “be instructed to answer my question”), the
court stated: “The witness is answering your question. He’s not helping himself
so I would leave it along [sic] if I were you”. Given the context of the comments,
their isolated nature, and the court’s instruction to the jury to disregard all of
the court’s comments, Harris has not shown the claimed error was clear or
obvious; and, even assuming it is, he has not shown it affected his substantial
rights. See United States v. Bermea, 30 F.3d 1539, 1569, 1571-72 (5th Cir. 1994)
(judge’s intervention must be “quantitatively and qualitatively substantial”;
curative jury instruction “can operate against a finding of constitutional error”).
      Regarding Harris’ sentence, although post-Booker, the Sentencing
Guidelines are advisory only, and an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the advisory Guidelines sentencing range for use in
deciding the sentence to impose. Gall v. United States, 552 U.S. 38, 49 (2007).
      For the career-offender challenge, the absence of binding precedent on
whether Harris’ 18 U.S.C. § 111 offense is a crime of violence–supporting a
career-offender sentencing enhancement–precludes any error’s being plain (clear
or obvious). E.g., United States v. Henderson, 646 F.3d 223, 225 (5th Cir. 2011).
Furthermore, pursuant to the above-discussed prejudice standard for plain-error

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                                  No. 11-30115

review of claimed sentencing errors, Harris has not shown a reasonable
probability that, but for this claimed error, he would have received a lower
sentence. E.g., Davis, 602 F.3d at 647. The court: found expressly the advisory
Guideline sentencing range did not account adequately for Harris’ behavior and
criminal history; imposed a sentence one month below the statutory maximum
and well above the advisory sentencing range; and, flatly rejected Harris’
objection to the sentence, noting it was “not going to shift”.
      For his final contention, Harris asserts the court’s failure to articulate
reasons for imposing a permitted consecutive sentence requires remand for
resentencing. In the light of the district court’s above-described reasons for
imposing a sentence above the advisory range, Harris has not shown the claimed
error affected his substantial rights (would have received a lower sentence). Id.
      AFFIRMED.




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