     Case: 16-40569      Document: 00514065665         Page: 1    Date Filed: 07/10/2017




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

                                    No. 16-40569                                FILED
                                  Summary Calendar                          July 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DOYLE WILLIAM VANHORN, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:15-CR-83-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Doyle William Vanhorn, Jr., appeals his within-guidelines sentence for
his guilty-plea conviction of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). He contends that, in light of Johnson v. United States,
135 S. Ct. 2551 (2015), the district court erred in applying a crime of violence
enhancement under the so-called “residual clause” of U.S.S.G. § 4B1.2(a)(2) for
his prior conviction of possession of a short-barrel shotgun. He further argues


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-40569    Document: 00514065665      Page: 2   Date Filed: 07/10/2017


                                 No. 16-40569

that, given Johnson, the district court committed a significant procedural error
by relying on a proposed guideline amendment in concluding that his prior
offense was a crime of violence under § 4B1.2.
      As for Vanhorn’s first argument, we review the preserved challenge de
novo. See United States v. Narez-Garcia, 819 F.3d 146, 149 (5th Cir.), cert.
denied, 137 S. Ct. 175 (2016). This court is “not bound by the Government’s
concession” that the Guidelines are subject to vagueness challenges and may
give the issue independent review. Cf. United States v. Hope, 545 F.3d 293,
295 (5th Cir. 2008). After briefing in this case, the Supreme Court held, in
Beckles v. United States, 137 S. Ct. 886 (2017), that “the Guidelines are not
subject to a vagueness challenge” under Johnson, and, therefore, § 4B1.2(a)(2)
is not void. Id. at 892.
      As for Vanhorn’s second argument, he never objected to the district
court’s reliance on the proposed amendment; therefore, we review under the
plain error standard. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). To the extent that the
district court looked to a prospectively applicable amendment to conclude that
the offense constituted a crime of violence under § 4B1.2, it committed a “clear
or obvious” procedural error in calculating the applicable guidelines range.
Gall v. United States, 552 U.S. 38, 51 (2007); see United States v. Rodarte-
Vasquez, 488 F.3d 316, 322 (5th Cir. 2007). The next question is whether
Vanhorn has shown “a reasonable probability of a different outcome” absent
any such error, and, thus, that it affected his substantial rights. See Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345-47 (2016). Given that Beckles
undermines the premise of his challenge, Vanhorn has not made this showing.
      AFFIRMED.




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