     Case: 12-40365       Document: 00512201164         Page: 1     Date Filed: 04/08/2013




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

                                                                            FILED
                                                                            April 8, 2013
                                     No. 12-40365
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSHUA MARK BODINE, also known as Desperado,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CR-37-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Joshua Mark Bodine appeals from his conviction by guilty plea of assault
with a dangerous weapon in aid of racketeering activity. Bodine contends that
the district court erroneously participated in plea discussions by consulting with
the parties over a provision in the plea agreement requiring that the
Government would make a recommendation for “camp” classification in the
Bureau of Prisons. That provision was removed from the agreement before



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40365     Document: 00512201164      Page: 2   Date Filed: 04/08/2013

                                  No. 12-40365

Bodine pleaded guilty. He also contends that there was not an adequate factual
basis on the record to support his guilty plea.
      Bodine did not raise his contentions in the district court. His contentions
therefore are reviewed for plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002).
      In order to prevail on appeal as to his plea discussion claim, Bodine “must
show a reasonable probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Whether
the classification recommendation was meant to bind only the Government or
both the Government and the district court, Bodine cannot demonstrate
prejudice sufficient to constitute reversible plain error. Pursuant to the policies
of the Bureau of Prisons, Bodine, a member of the Aryan Brotherhood of Texas
(ABT), would have been placed in a high security facility regardless of any
judicial recommendation for a lower security classification. Bodine cannot show
any reasonable probability that he would not have pleaded guilty had the district
court simply rejected the plea agreement and given him the opportunity to
withdraw his plea instead of counseling the parties to remove the classification
recommendation provision. See FED . R. CRIM. P. 11(c)(1), (c)(1)(A), (c)(1)(c);
Dominguez Benitez, 542 U.S. at 83.
      The factual basis indicated that Bodine, a major in the ABT, ordered John
Manning to locate, subdue, and restrain Matthew Fails by force because Fails
owed Bodine money and had disrespected Bodine. Manning located Fails and
attempted to restrain and abduct him. Manning shot Fails during a struggle.
Pursuant to 18 U.S.C. § 2(b), Bodine could be convicted as a principal because
Manning assaulted Fails with a dangerous weapon while carrying out Bodine’s
order. The use of a firearm was a probable consequence of the order Bodine gave
Manning. See United States v. Vaden, 912 F.2d 780, 783 (5th Cir. 1990). The
factual basis was sufficient to support Bodine’s conviction.



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                                  No. 12-40365

      The Government moves for summary affirmance or, in the alternative, for
an extension of time in which to file a brief. Summary disposition is appropriate
in cases “where time is truly of the essence” or where “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where . . . the appeal is frivolous.”
Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Bodine’s case can be resolved without further briefing, but summary affirmance
is not appropriate. See United States v. Holy Land Found. for Relief & Dev.,
445 F.3d 771, 781 (5th Cir. 2006). The Government’s motion for summary
affirmance or, in the alternative, for an extension of time, is denied.
      AFFIRMED. MOTION DENIED.




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