     Case: 09-51057 Document: 00511311636 Page: 1 Date Filed: 12/03/2010




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

                                                 FILED
                                                                          December 3, 2010
                                     No. 09-51057
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

FREDERICK RONNELL LOFTEN, also known as Fredrick R. Loften,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CR-123-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Frederick Ronnell Loften appeals his conviction and sentence for violating
Texas Penal Code § 22.04(a)(3) by causing injury to a child on the Fort Hood
Military Reservation.        The offense is assimilated into federal law by the
Assimilative Crimes Act (ACA), 18 U.S.C. §§ 7(3), 13, which makes state law
applicable to conduct occurring on lands acquired by the federal government
when the act or omission is not made punishable by an enactment of Congress.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51057 Document: 00511311636 Page: 2 Date Filed: 12/03/2010

                                   No. 09-51057

      Loften argues that the ACA does not incorporate § 22.04 because the
federal statute criminalizing simple assault, 18 U.S.C. § 113(a)(5), governs his
conduct. At least, he contends that he should have been punished under § 113.
Loften further argues that the district court erred by failing to apply the
Sentencing Guidelines in his case. See U.S.S.G. § 2X5.1. He notes that his
sentencing range under what he contends is the most analogous Guideline,
§ 2A2.3, would have been lower than the two-year minimum term of
imprisonment that § 22.04 mandated for his offense. He thus contends that the
state minimum sentence should have become his sentencing range. See U.S.S.G.
§ 5G1.1(b). Loften argues that the district court erred by failing to give him
notice that it intended to impose a sentence that exceeded the minimum
sentence, and by failing to state its reasons for the decision in open court.
Finally, Loften argues that the district court erred by failing to consider the
availability of probation under state law.
      At sentencing Loften preserved his final argument for review by
requesting a sentence of probation. The arguments Loften made in the district
court were not sufficient to put the district court on notice of the basis of the
remaining arguments he now raises on appeal. See United States v. Duhon, 541
F.3d 391, 396 (5th Cir. 2008). Accordingly, we review those arguments for plain
error only. Puckett v. United States, --- U.S. ---, 129 S. Ct. 1423, 1429 (2009);
United States v. Key, 599 F.3d 469, 476-77 (5th Cir.), petition for cert. filed (Sept.
4, 2010) (No. 10-6291).
      Loften has not shown that the assimilation of § 22.04 in his case via the
ACA or his sentencing pursuant to § 22.04 constituted clear or obvious error.
See Lewis v. United States, 523 U.S. 155, 164 (1998). However, the district court
was obligated to apply the Sentencing Guidelines in Loften’s case and erred by
failing to consider whether an analogous Guideline existed that could be used in
determining Loften’s sentencing range. See United States v. Calbat, 266 F.3d
358, 362 (5th Cir. 2001). That error did not affect Loften’s substantial rights.

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                                  No. 09-51057

A review of the applicable statutes reveals no analogous Guideline. Because the
district court found the Sentencing Guidelines inapplicable and imposed a non-
guidelines sentence, it was not required to give Loften notice that it intended to
impose a sentence that exceeded the state minimum sentence. See United States
v. Mejia-Huerta, 480 F.3d 713, 722-23 (5th Cir. 2007).
      The district court erred by failing to state in open court the reasons for its
sentencing decision; however, Loften has not shown that the error affected his
substantial rights.   The district court’s written statement of reasons and
adoption of the presentence report provided explanation sufficient to allow
meaningful review of Loften’s sentence. See United States v. Gore, 298 F.3d 322,
325-26 (5th Cir. 2002). The district court sentenced Loften towards the low end
of the statutory sentencing range, and Loften has not explained how the outcome
of his case might have been different had the district court provided a more
thorough verbal explanation for its choice of sentence.
      Finally, Loften’s argument that the district court erred by failing to
consider his eligibility to be sentenced to probation or 180 days of confinement
as a condition of probation lacks merit. The record does not support Loften’s
allegation that the district court was not aware of the various sentencing
alternatives.
      AFFIRMED.




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