     Case: 11-41052     Document: 00511910844         Page: 1     Date Filed: 07/05/2012




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

                                                                            FILED
                                                                            July 5, 2012
                                     No. 11-41052
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BRIAN KEITH ANDREWS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-152-5


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Brian Keith Andrews appeals the within-guidelines sentence for his guilty
plea conviction for conspiracy to possess with intent to distribute 150 grams or
more of cocaine base, arguing that the district court erred in sentencing him as
a career offender under U.S.S.G. § 4B1.1 because his two prior aggravated
assault convictions were not crimes of violence; his first aggravated assault
conviction was committed when he was 17 years old; and his prior convictions
were related and consolidated for sentencing.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41052

      The district court did not err in sentencing Andrews as a career offender
under § 4B1.1. His prior Texas aggravated assault convictions under TEX.
PENAL CODE ANN. § 22.02 qualify as the enumerated offense of “aggravated
assault” under § 4B1.1. See United States v. Guillen-Alvarez, 489 F.3d 197, 200-
01 (5th Cir. 2007). The district court did not err in considering Andrews’s first
aggravated assault conviction because he was convicted as an adult. The district
court did not err in determining that Andrews’s second aggravated assault
conviction constituted a crime of violence as the indictment shows the crime
posed a serious potential risk of physical injury, even though the victim did not
suffer physical injury. See United States v. Moore, 635 F.3d 774, 777 (5th Cir.),
cert. denied, 132 S. Ct. 399 (2011). Because Andrews’s current conspiracy
offense began in January 2007, within six years of his release from prison in
October 2001 for his prior convictions, the district court did not err in
considering them under U.S.S.G. § 4A1.2(e). See United States v. Gipson, 46
F.3d 472, 475 (5th Cir. 1995).       Finally, Andrews’s prior convictions were
separated by intervening arrests and, therefore, the district court did not err in
treating them as separate convictions. See U.S.S.G. § 4A1.2(a)(2).
      Andrews maintains that the district court did not give sufficient reasons
for the sentence or for rejecting his request for a variance. Because he did not
raise this argument in the district court, review is limited to plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Andrews has not shown that there is a reasonable probability such an error
affected the sentence he received and therefore cannot satisfy his burden under
plain error review. See id. at 364. Nonetheless, the district court provided
sufficient reasons for the sentence to allow for meaningful appellate review and,
therefore, the district court did not commit any error, plain or otherwise. See
United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008).
      According to Andrews, the sentence is substantively unreasonable because
it is greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors; the district

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                                  No. 11-41052

court did not make findings regarding those factors, including his history and
characteristics; and the district court mechanically applied the career offender
enhancement.
      The district court made an individualized sentencing decision after
considering the advisory guidelines range, the Presentence Report, Andrews’s
arguments and allocution at sentencing, the sentences imposed on his
codefendants, and the § 3553(a) factors, including his history and characteristics,
the safety of the public, the need to promote respect for the law and to provide
just punishment. His within-guidelines sentence is presumptively reasonable.
See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). His
disagreement with the district court’s weighing of the § 3553(a) sentencing
factors does not suffice to rebut the presumption of reasonableness. See United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Andrews has not shown that
the court’s choice of a within-guidelines sentence was improper. See United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      AFFIRMED.




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