     Case: 14-50287         Document: 00513002885          Page: 1     Date Filed: 04/13/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 14-50287                        United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
UNITED STATES OF AMERICA,                                                       April 13, 2015
                                                                               Lyle W. Cayce
                 Plaintiff - Appellee                                               Clerk

v.

CHARLES WILLIAM ST. CLAIR, VI, also known as Chipper, also known as
Charles StClaire,

                 Defendant - Appellant




                     Appeals from the United States District Court
                           for the Western District of Texas
                                USDC No. 6:13-CR-153


Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District
Judge.*

PER CURIAM:**
       Charles William St. Clair, VI, appeals his sentence, arguing that the
district court misapplied the career offender guideline of the United States
Sentencing Guidelines. The district court clearly erred in applying the career



       *   District Judge of the Southern 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50287
offender guideline because his prior burglary convictions under Texas Penal
Code § 30.02(a)(3) were not crimes of violence. But this error did not affect St.
Clair’s substantial rights. Accordingly, we AFFIRM, but we do so without
prejudice to St. Clair’s ability to apply for a sentence reduction under 18 U.S.C.
§ 3582(c)(2).
                              FACTS AND PROCEEDINGS
      A jury found St. Clair guilty of conspiracy to possess with intent to
distribute at least 500 grams of methamphetamine.              His Presentence
Investigation Report (“PSR”) assessed his criminal history category as VI, and
he does not appeal this assessment. The PSR also attributed 940 grams of “Ice”
methamphetamine to him, resulting in a base offense level of 36. Using the
base offense level, his Guidelines imprisonment range was 324 to 405 months.
U.S.S.G. Ch. 5, Pt. A. The PSR also recommended applying the career offender
guideline, U.S.S.G. § 4B1.1. The PSR alleged that St. Clair had at least two
prior Texas burglary convictions, allowing the application of the career
offender guideline.   Accordingly, the PSR recommended using the career
offender guideline to raise his offense level to 37, rather than the base offense
level of 36. Using the increased offense level of 37, St. Clair’s new Guidelines
imprisonment range was 360 months to life. U.S.S.G. Ch. 5, Pt. A.
      St. Clair lodged several objections, but his only objection to the
application of the career offender guideline was that his three burglary
convictions were part of a continued course of criminal conduct, so they should
be counted as one prior conviction. The district court overruled this objection,
and St. Clair has not appealed this ruling. Instead, St. Clair argues for the
first time on appeal that two of his prior Texas burglary convictions do not
qualify as crimes of violence.




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                                       No. 14-50287
                                 STANDARD OF REVIEW
       Because St. Clair did not present the current issue to the district court,
we review it for plain error. See Fed. R. Crim. P. 52(b). Under plain error
review, we will reverse only if: (1) there is an error that has not been
intentionally abandoned; (2) the error is “clear or obvious, rather than subject
to reasonable dispute”; (3) the error “affected the appellant’s substantial
rights”; and (4) this court chooses to exercise its discretion because the “error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir.
2012) (en banc) (internal quotation marks and alteration omitted) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)).
                                       DISCUSSION
       It is undisputed that two of St. Clair’s three prior convictions were for
violations of Texas Penal Code § 30.02(a)(3).               He argues that these two
convictions were not for crimes of violence, and, therefore, the career offender
guideline does not apply.
       The career offender guideline only applies to a defendant with “at least
two prior felony convictions of . . . a crime of violence.” U.S.S.G. § 4B1.1(a).
Because St. Clair only has three potentially qualifying prior convictions, the
career offender guideline does not apply if St. Clair’s two convictions under
§ 30.02(a)(3) are not crimes of violence.
       For our purposes, the Armed Career Criminal Act (“ACCA”) definition
for a “violent felony” is identical to the career offender guideline definition for
a “crime of violence.” Compare 18 U.S.C. § 924(e)(2)(B)(ii), with U.S.S.G.
§ 4B1.2(a)(2). 1 Moreover, we generally treat cases dealing with the career



       1  The only difference between the definitions is that ACCA provides that a “burglary”
is a violent felony, whereas the Guidelines provide that a “burglary of a dwelling” is a crime
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                                        No. 14-50287
offender guideline “interchangeably” with cases dealing with the ACCA.
United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011) (per curiam). Thus,
our precedent regarding ACCA’s definition of a violent felony is directly
applicable to the Guidelines definition of a crime of violence.
       United States v. Constante held that a conviction under § 30.02(a)(3) is
not a generic burglary for ACCA purposes because it does not require a person
to enter a building with the intent to commit a felony or theft, which is required
under the generic definition of burglary. 544 F.3d 584, 587 (5th Cir. 2008) (per
curiam). Constante also held that, because a conviction under § 30.02(a)(3) is
not a generic burglary, it is not a violent felony. Id. Constante repeatedly
stated that a conviction under § 30.02(a)(3) is not a violent felony. Id. at 585–
87. The district court plainly erred by holding to the contrary. 2
       But St. Clair fails on the third prong of plain error review because the
error did not affect his substantial rights. The imprisonment range that the
district court applied was 360 months to life. The correct imprisonment range
was 324 to 405 months, and he was actually sentenced to 360 months. Thus,
the correct imprisonment range overlaps with the erroneously-applied




of violence. Here, St. Clair has not contested that his burglary convictions were for burglaries
of dwellings, so this difference is irrelevant.
        2 In United States v. Ramirez, an unpublished opinion, a panel held that Constante’s

relative silence about one part of ACCA’s definition of a violent felony means that Constante
did not resolve whether § 30.02(a)(3) is a violent felony. Ramirez, 507 F. App’x 353, 354 (5th
Cir. 2013) (per curiam). Relying on Ramirez, Judge Dennis issued an opinion on a single-
judge matter, holding that treating § 30.02(a)(3) as a violent felony is not clear or obvious
error. United States v. Emeary, 773 F.3d 619, 622–23 (5th Cir. 2014) (Dennis, J., in
chambers).
        But Constante clearly held that a conviction under § 30.02(a)(3) is not a violent felony.
See 544 F.3d at 584, 586–87. Neither we nor the Ramirez panel could overrule the
precedential decision of a previous panel. United States v. Traxler, 764 F.3d 486, 489 (5th
Cir. 2014). Further, Ramirez is unpublished and is therefore non-precedential. See 5TH CIR.
R. 47.5.4. It is clear and obvious that a district court cannot diverge from a precedential
opinion’s holding, regardless of subsequent non-precedential decisions such as Ramirez and
Emeary. Accordingly, the district court’s error was plain.
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                                        No. 14-50287
imprisonment range, and St. Clair was actually sentenced to a term that falls
within the correct imprisonment range. “[W]here the resulting sentence falls
within both the correct and incorrect guidelines, we do not assume, in the
absence of additional evidence, that the sentence affects a defendant’s
substantial rights.” United States v. Blocker, 612 F.3d 413, 416 (5th Cir. 2010)
(per curiam). Here, there is no such additional evidence. Accordingly, we
conclude that the error did not affect St. Clair’s substantial rights. 3
       However, because we hold that the district court plainly erred by basing
St. Clair’s sentence on the career offender guideline, the application of the
career offender guideline cannot be considered to be one of the “guideline
application decisions” upon which St. Clair’s sentence is based. See U.S.S.G.
§ 1B1.10(b)(1). Accordingly, our decision today does not prejudice St. Clair’s
ability to file a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2)
based on Amendment 782 to the Sentencing Guidelines.                           See U.S.S.G.
§ 1B1.10(d)–(e). 4
                                        CONCLUSION
       We AFFIRM, but we do so without prejudice to St. Clair’s ability to apply
for a sentence reduction under 18 U.S.C. § 3582(c)(2).




       3   We therefore do not reach the fourth prong of plain error review.
       4 We note the narrowness of this holding. We hold only that, because we decide on
direct appellate review that there was a plain error, this error is not one of the “guideline
application decisions” that is held constant for a § 3582(c)(2) motion. Specifically, we do not
hold that a defendant can raise a plain error challenge to a guideline application decision in
a freestanding § 3582(c)(2) motion.
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