     Case: 12-10214       Document: 00512284286         Page: 1     Date Filed: 06/24/2013




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

                                                                            FILED
                                                                           June 24, 2013
                                     No. 12-10214
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BENJAMIN JERREL SHIPMAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-134-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Benjamin Jerrel Shipman appeals his sentence
which was imposed following his plea of guilty to being a felon in possession of
a firearm. He asserts, for the first time on appeal, that the district court erred
in assigning him an offense level based on the determination that he had a prior
felony conviction for a crime of violence (“COV”) pursuant to U.S.S.G. §
2K2.1(a)(4)(A). At issue is a 1994 Texas conviction for voluntary manslaughter.
See TEX. PENAL CODE § 19.04(a) (1987).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10214     Document: 00512284286      Page: 2   Date Filed: 06/24/2013

                                  No. 12-10214

      “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity for
correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Contrary
to his assertion, Shipman’s argument to the district court at sentencing in no
way alerted it to his claim on appeal that his voluntary manslaughter conviction
could not be considered a COV under a technical application of the Sentencing
Guidelines. Accordingly, we review Shipman’s argument for plain error only.
      To prevail on plain error review, Shipman must show a forfeited error that
is clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have discretion
to correct the error, but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. Shipman has the burden of
showing a reasonable probability that, but for the district court’s misapplication
of the Guidelines, he would have received a lesser sentence. See United States
v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005). He cannot meet this burden when
the alleged error has no effect on his offense level or sentencing range. See
United States v. Garcia-Gonzalez,      F.3d   , 2013 WL 1662795 at * 7 (5th Cir.
Apr. 17, 2013).
      Both the government and Shipman agree that the district court clearly
erred in determining that his voluntary manslaughter conviction had, as an
element, the use of force. The threatened or attempted use of force does not
appear anywhere in former TEX. PENAL CODE § 19.04(a). Nevertheless, as we
explain below, Shipman cannot show an effect on his substantial rights because
he has not shown that his voluntary manslaughter offense was not the
enumerated offense of manslaughter, thus warranting the COV adjustment.
      For an offense such as manslaughter that is defined at common law, we
look to its generic, contemporary meaning, employing a common sense approach
in which we consider the Model Penal Code, treatises, modern state codes, and
dictionaries. United States v. Esparza-Perez, 681 F.3d 228, 229-30 (5th Cir.

                                        2
      Case: 12-10214   Document: 00512284286       Page: 3   Date Filed: 06/24/2013

                                   No. 12-10214

2012); see also United States v. Rodriguez, 711 F.3d 541, 554 & nns. 16 & 17 (5th
Cir. 2013) (en banc) (adopting a different approach for offense categories not
defined at common law). We consider only the “elements of the statute of
conviction” and not the “specifics of the defendant’s conduct.” Esparza-Perez, 681
F.3d at 230. “When the statute of conviction encompasses prohibited behavior
that is not within the plain, ordinary meaning of the enumerated offense, the
conviction is not a crime of violence as a matter of law.” United States v. Fierro-
Reyna, 466 F.3d 324, 327 (5th Cir. 2006) (internal quotation marks and citation
omitted).
       The Model Penal Code defines voluntary manslaughter as “a homicide
which would otherwise be murder but is committed under the influence of
extreme mental or emotional disturbance for which there is reasonable
explanation or excuse.” United States v. Bonilla, 524 F.3d 647, 654 (5th Cir.
2008) (internal quotation marks and citation omitted). The minimal mens rea
for generic contemporary manslaughter is the “recklessness” standard adopted
in the Model Penal Code. Id. A manslaughter statute “will be broader than the
general, contemporary definition of manslaughter - and thus not a crime of
violence under the guidelines - if [it] requires less than a reckless state of mind.”
Id.
       The 1994 Texas version of voluntary manslaughter clearly required the
intent to kill or cause serious bodily harm. TEX. PENAL CODE §§ 19.02, 19.04(a).
The statute of conviction thus comports with the generic, contemporary
definition of manslaughter as a COV. See, e.g., United States v. Gonzalez, 400
F. App’x 875, 877 (5th Cir. 2010) (holding that a parallel Michigan voluntary
manslaughter statute, which defined the offense as a homicide resulting from
provocation and the heat of passion, would constitute a crime of violence).
       Shipman contends that his conviction was not an enumerated COV
because in 1994, Texas imposed a duty to retreat on anyone who claimed self
defense to a charge of homicide. He notes that in 1994, TEX. PENAL CODE § 9.32

                                         3
    Case: 12-10214     Document: 00512284286      Page: 4   Date Filed: 06/24/2013

                                  No. 12-10214

required that a person claiming the justifiable use of deadly force was required
to establish that a reasonable person in the actor’s situation would not have
retreated. As Shipman was convicted under TEX. PENAL CODE § 19.04, his
reliance on any affirmative defense offered under TEX. PENAL CODE § 9.32 is
misplaced. Id.; compare United States v. Medina-Valencia, 538 F.3d 831, 834
(8th Cir. 2008) (considering the affirmative defense set forth within TEX. PENAL
CODE § 21.11(b) (1999)). Shipman cites no persuasive authority in support of his
contention that Texas’s former requirement of retreat took the offense outside
of the plain, ordinary meaning of enumerated voluntary manslaughter.
Accordingly, Shipman has failed to bear his burden of showing that any error in
the district court’s determination that his voluntary manslaughter conviction
warranted application of the COV enhancement under an elements-based
approach affected his substantial rights. See Villegas, 404 F.3d at 364.
      Shipman also contends that his sentence was substantively unreasonable
because the district court punished him based on his history of carrying guns,
but refused to consider his justification for doing so. We review this claim for an
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
      The sentencing court is in a superior position to find facts and judge their
import under 18 U.S.C. § 3553(a) with respect to each particular defendant.
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). An
appellate court may not require “extraordinary circumstances” to justify a
sentence outside the guidelines range. Id. Nevertheless, a non-guidelines
sentence is unreasonable if it (1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors. United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      The district court based its sentencing decision on Shipman’s criminal
history, which included the carrying and use of guns. The court acknowledged
Shipman’s claim of self defense, but concluded that his continued conduct in

                                        4
    Case: 12-10214    Document: 00512284286    Page: 5   Date Filed: 06/24/2013

                                No. 12-10214

carrying a gun warranted the 70-month sentence. The court also concluded that
Shipman’s continued use and carrying of firearms made him a danger to the
community. Shipman has not shown that, in selecting a sentence, the district
court failed to consider his alleged need for self defense. Accordingly, he has
shown no abuse of discretion. See Smith, 440 F.3d at 708.
      AFFIRMED.




                                      5
