     Case: 15-40200      Document: 00513320281         Page: 1    Date Filed: 12/23/2015




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

                                                                                  FILED
                                    No. 15-40200                          December 23, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TIMOTHY WAYNE HARRIS, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:12-CV-47-1


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Timothy Wayne Harris, Jr., appeals his conviction on five counts of a
superseding indictment and his within–guidelines sentence totaling 522
months.     A jury found him guilty of conspiracy to carjack, two counts of
carjacking, and two counts of using or carrying a firearm during and in relation
to the carjacking offenses.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40200

      Harris argues that the district court failed to arraign him on the
superseding indictment. Because Harris did not raise this objection until after
the trial was completed, we review for plain error. See FED. R. CRIM. P. 52(b);
Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain error, a
defendant must show (1) an error; (2) that is clear or obvious; and that (3)
affects his substantial rights. Puckett, 556 U.S. at 135. If he makes such a
showing, we have the discretion to correct the error only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
      Both parties note that after the jury was sworn, the district court read
the indictment in open court. Harris, who was present, then pleaded not guilty
to each count of the superseding indictment. This arguably satisfies the notice
requirements of the Sixth Amendment and Federal Rule of Criminal Procedure
10(a)(2) and the presence requirement of Rule 43(a)(1). Harris therefore has
not shown clear or obvious error that affected his substantial rights. See
Puckett, 556 U.S. at 135.
      Harris also challenges the sufficiency of the evidence to support his
convictions on the firearms counts. Because Harris did not raise this issue in
the district court, we again review for plain error.       See United States v.
Delgado, 672 F.3d 320, 330-32 (5th Cir. 2012) (en banc). Harris argues that in
light of the definition of a firearm, 18 U.S.C. § 921(a)(3), the Government was
required to prove that the firearm was not an antique. Although this court has
not addressed the issue, every circuit to consider the question has held that the
antique weapons exception is “an affirmative defense that must initially be
raised by sufficient evidence to justify shifting a burden of proof to the
government.” United States v. Lawrence, 349 F.3d 109, 122-23 (3rd Cir. 2003)
(citing cases).   Given these numerous circuits that have rejected Harris’s
position, and the fact that this Circuit has not yet addressed the issue, any



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                                  No. 15-40200

error cannot be clear or obvious. See United States v. Evans, 587 F.3d 667, 671
(5th Cir. 2009).
      As to his sentence, Harris argues that the district court procedurally
erred by applying the two-level enhancement for obstruction of justice
pursuant to U.S.S.G. § 3C1.1 (Nov. 2014). Because Harris raised it in the
district court, we review de novo his argument that the district court must
make a finding of malingering related to a competency hearing before the
sentencing. See United States v. Claiborne, 676 F.3d 434, 437 (5th Cir. 2012).
His argument is not supported by United States v. Aldawsari, 740 F.3d 1015,
1021 (5th Cir.), cert. denied, 135 S. Ct. 160 (2014). It is contradicted by United
States v. Greer, 158 F.3d 228, 238 (5th Cir. 1998), which indicates that a finding
that a defendant malingered in order to avoid trial may be made at sentencing.
And, of course, the normal course is to address Sentencing Guidelines issues
during the sentencing hearing. We therefore find no error in the stage of the
proceeding at which the district court made this finding of obstruction.
      For the first time on appeal, Harris argues that the district court’s
finding is unsupported by any evidence that he had a specific intent to
malinger or that he was malingering in order to avoid the judicial system.
“When a defendant object[ed] to his sentence on grounds different from those
raised on appeal, we review the new arguments raised on appeal for plain error
only.” United States v. Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) (internal
quotation marks and footnoted citation omitted). The district court adopted
the unrebutted findings of the presentence report. See United States v. Ochoa-
Gomez, 777 F.3d 278, 282 (5th Cir. 2015); United States v. Alaniz, 726 F.3d
586, 619 (5th Cir. 2013). The court’s determination that Harris obstructed
justice by malingering to avoid trial is a factual finding that can never
constitute plain error. See Claiborne, 676 F.3d at 438; see also United States



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                               No. 15-40200

v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Even aside from the plain error
posture, we do not find that the district court clearly erred in finding that
Harris was malingering.
     AFFIRMED.




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