     Case: 16-41482      Document: 00514042527         Page: 1    Date Filed: 06/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-41482                                  FILED
                                  Summary Calendar                            June 21, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICHARD KEITH TAYLOR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:08-CR-16-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Richard Keith Taylor pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced
under the Armed Career Criminal Act, 18 U.S.C. § 924(e), to 235 months of
imprisonment and four years of supervised release. Following the grant of
Taylor’s 28 U.S.C. § 2255 motion, which challenged his designation as an
armed career criminal in light of Johnson v. United States, 135 S. Ct. 2551


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41482

(2015), the district court vacated his sentence and resentenced him to time
served and three years of supervised release. The issue in this appeal is
whether the district court committed reversible error in applying the base
offense level under U.S.S.G. § 2K2.1(a)(2) because “the defendant committed
any part of the instant offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense.”
This, in turn, depends upon whether Taylor’s prior convictions for aggravated
assault under Texas Penal Code § 22.02(a) constitute convictions for a “crime
of violence” under § 2K2.1(a) and U.S.S.G. § 4B1.2(a).
      Taylor contends that Texas aggravated assault is not a crime of violence
because (1) the residual clause of § 4B1.2(a)(2) is unconstitutionally vague
following Johnson; and (2) the offense does not have as an element the use,
attempted use, or threatened use of physical force against the person of
another.   We review a district court’s interpretation or application of the
Sentencing Guidelines de novo, and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Additionally,
we review de novo “a preserved constitutional challenge to the Guidelines’
application.” United States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir.
2015), cert. denied, 136 S. Ct. 2007 (2016). However, as Taylor did not raise
either issue in the district court, review is only for plain error. See United
States v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010).
      In Beckles v. United States, 137 S. Ct. 886, 897 (2017), the Supreme
Court declined to extend Johnson to guidelines determinations and instead
held: “Because the advisory Sentencing Guidelines are not subject to a due
process vagueness challenge, § 4B1.2(a)’s residual clause is not void for
vagueness.” Further, even assuming Taylor could satisfy the first three prongs
of the plain error analysis, we halt at the fourth prong and decline to exercise



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                                No. 16-41482

our discretion to remedy any error by the district court in calculating the
guidelines range and imposing the time-served sentence. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
      AFFIRMED.




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