     Case: 10-40112     Document: 00511271880          Page: 1    Date Filed: 10/22/2010




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

                                                 FILED
                                                                          October 22, 2010
                                     No. 10-40112
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

KEAVY HARRIS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:08-CR-60-4


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Keavy Harris appeals his within-guidelines sentence of 360 months’
imprisonment imposed following his guilty-plea conviction for conspiracy to
distribute, and possess with intent to distribute, cocaine and marijuana. Harris’
criminal history category included one point for a Mississippi municipal-court
conviction for bond jumping, an act for which he was fined $250.                      Harris
contends the district court misapplied the advisory Sentencing Guidelines, by
adding one point to his criminal history for his bond-jumping conviction,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40112

because: that conviction was merely a civil contempt order, and the offense of
bond-jumping is similar to the offense of contempt of court not counted under
Guideline § 4A1.2(c)(1).
      Although Harris challenged the additional criminal-history point in
district court, he did so on grounds different from those raised on appeal.
Accordingly, the criminal-history calculation is reviewed only for plain error.
United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); F ED. R. C RIM. P.
52(b). To succeed under such review, Harris must show, inter alia, a clear or
obvious error affecting his substantial rights. Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009).
      Harris maintains: because the presentence investigation report did not
indicate the statute upon which his bond-jumping conviction was based, it was
merely a civil contempt order in which a noncriminal fine was imposed. This is
a question of fact that could have been resolved if raised in district court. Such
questions of fact “can never constitute plain error”. United States v. Vital, 68
F.3d 114, 119 (5th Cir. 1995) (internal quotations and citation omitted).
      In the alternative, Harris asserts his bond-jumping offense, not listed as
an excludable offense, is similar to the offense of contempt of court excluded from
the criminal-history calculation under Guideline § 4A1.2(c)(1). Such excludable
offenses, and offenses similar to them, are counted only if: (1) the sentence was
a term of probation of more than one year, or a term of imprisonment of at least
30 days, or (2) the prior offense is similar to the instant offense (here, conspiracy
and intent to posses and distribute). U.S.S.G. § 4A1.2(c)(1)(A)-(B). Because
Harris was assessed only a fine for his bond-jumping offense, he maintains it is
not counted in the criminal history.
      In determining whether an unlisted offense is similar to a listed-
excludable offense, our court uses a common-sense approach which “relies on all
possible factors of similarity”. United States v. Lamm, 392 F.3d 130, 132 (5th
Cir. 2004) (internal quotations omitted). The factors to consider include: a

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                                No. 10-40112

comparison of punishments imposed, the seriousness of each offense, the
elements of each offense, the level of culpability involved, and the likelihood of
recurring criminal conduct. Id.; see also United States v. Hardeman, 933 F.2d
278, 281 (5th Cir. 1991).
      Applying this common-sense approach, these offenses are not similar. The
punishment for bond jumping is more severe:            bond jumping includes
punishment of up to one year in prison, while contempt of court is punishable up
to only six months’ imprisonment. As such, bond jumping is a more serious
offense. Further, the offense of bond jumping requires an additional element of
release on bond, making a bond jumper more culpable than someone in contempt
of court.
      Even assuming Harris has shown the district court erred in calculating his
criminal history, he has not shown a plain (clear or obvious) error. An error is
clear or obvious only if it is clear under existing law. United States v. Salinas,
480 F.3d 750, 756 (5th Cir. 2007). There is no existing law supporting Harris’
assertions.
      AFFIRMED.




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