     Case: 16-50532      Document: 00514208962         Page: 1    Date Filed: 10/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-50532                                 FILED
                                  Summary Calendar                         October 24, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BYRON KEITH MOORE,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:14-CR-102-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Byron Keith Moore appeals his conviction of possession of a firearm by a
convicted felon and his sentence of 210 months in prison. See 21 U.S.C § 924.
       According to Moore, the evidence presented at trial was insufficient to
support his conviction. Because Moore preserved this issue for appeal, we will
uphold the jury’s verdict only if a reasonable trier of fact could conclude beyond
a reasonable doubt that the evidence established that Moore was previously


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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convicted of a felony, that he knowingly possessed a firearm, and that the
firearm traveled in or affected interstate commerce. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Anderson, 559 F.3d 348, 353 (5th
Cir. 2009); 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B). Moore challenges only the
evidence of his knowing possession of the firearm.
      The jury reasonably inferred that the presence of Moore’s wallet, his
current prescription, and men’s clothing in the drawer with the gun, combined
with the DNA evidence on the gun, established that Moore knew of and had
access to, if not control over, the firearm. See Henderson v. United States, 135
S. Ct. 1780, 1784 (2015); United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.
1995). A reasonable trier of fact could have concluded from this evidence that
Moore knowingly possessed the firearm. See United States v. De Leon, 170
F.3d 494, 496 (5th Cir. 1999); United States v. Wright, 24 F.3d 732, 735 (5th
Cir. 1994).
      Moore additionally challenges the application of the armed career
criminal provisions of § 924(e) and U.S.S.G. § 4B1.4, but presents argument to
this court that differ from those he made in the district court and we, therefore,
review only for plain error. See United States v. Dominguez-Alvarado, 695 F.3d
324, 327 (5th Cir. 2012). To show plain error, Moore must show a forfeited
error that is clear or obvious and that affects his substantial rights. See United
States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). If he makes such a
showing, we may exercise our discretion to correct the error if, “it seriously
affects the fairness, integrity, or public reputation of judicial proceedings and
result[s] in a miscarriage of justice.” Id. at 802 (internal quotation marks and
citations omitted).
      Section 924(e)(1) imposes a 15-year mandatory minimum term in prison
for a person possessing a firearm in violation of § 922(g) who has three prior
convictions for violent felonies or serious drug offenses. § 924(e)(1). A violent

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felony is one of a number of enumerated offenses or a felony that “has as an
element the use, attempted use, or threatened use of physical force against the
person of another” (the “use of force” clause). § 924(e)(2)(B). Although the
statutory definition of a violent felony also includes conduct presenting a
“serious potential risk of physical injury to another,” the Supreme Court has
held this residual clause to be unconstitutional. Johnson v. United States, 135
S. Ct. 2551, 2556 (2015). A serious drug offense is an offense prohibited by the
Controlled Substances Act (21 U.S.C. § 801 et seq.), and other specific statutes,
and for which the law imposes a maximum term of ten years or more in prison.
§ 924(e)(2)(A). Section 4B1.4 defines a violent felony and a serious drug offense
as those terms are defined in § 924(e). See § 4B1.4, cmt. (n.1).
      To the extent that the district court may have relied on the presentence
report (PSR) alone to determine that Moore had at least three prior violent
felonies or serious drug offenses for the purposes of § 924(e) and § 4B1.4, such
reliance would be error. See United States v. Garza-Lopez, 410 F.3d 268, 274
(5th Cir. 2005). However, because Moore specifically indicated that he had no
dispute with the facts in the PSR, and because the supplemented record on
appeal confirms the PSR’s descriptions of the relevant offenses, Moore fails to
show that the district clearly or obviously erred. See Henao-Melo, 591 F.3d at
801; United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006); United
States v. White, 465 F.3d 250, 254 (5th Cir. 2006).
      Moore similarly fails to show reversible plain error in the district court’s
characterization of his prior convictions as violent felonies or serious drug
offenses for purposes of § 924(e) and § 4B1.4. See Henao-Melo, 591 F.3d at 801.
As to his 1992 narcotics conviction, the supplemented record shows that Moore
pleaded guilty to one count of violating 21 U.S.C. § 841(a)(1).           Section
841(b)(1)(C) provides a statutory maximum term in prison of 20 years for an
amount of .64 grams of cocaine base, a schedule II substance. See 21 U.S.C.

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§ 812(c). Because the offense was one prohibited by the Controlled Substances
Act (21 U.S.C. § 801 et seq.) and the maximum prison term for the offense was
more than 10 years, the district court did not err, much less clearly or
obviously, in treating it as a serious drug offense under the Armed Career
Criminal Act or § 4B1.4. See § 924(e)(2)(A); § 4B1.4, cmt. (n.1); Henao-Melo,
591 F.3d at 801.
      Turning to Moore’s aggravated assault convictions, assault is not an
enumerated offense under § 924(e)(2)(B)(ii) or § 4B1.4 by reference. Therefore,
in light of Johnson, these two convictions qualify as violent felonies under
§ 924(e)(2)(B) only if Texas aggravated assault with a deadly weapon meets the
“use of force” clause of § 924(e)(2)(B)(ii). Texas Penal Code § 22.02(a) defines
aggravated assault as an assault as described in Texas Penal Code § 22.01 and
the perpetrator, “(1) causes serious bodily injury to another, including the
person’s spouse; or (2) uses or exhibits a deadly weapon during the commission
of the assault.” TEX. PENAL CODE § 22.02(a). Section 22.01 states that that a
person commits an assault by, “(1) intentionally, knowingly, or recklessly
caus[ing] bodily injury to another, including the person’s spouse; (2)
intentionally or knowingly threaten[ing] another with imminent bodily injury,
including the person’s spouse; or (3) intentionally or knowingly caus[ing]
physical contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or provocative.” TEX.
PENAL CODE § 22.01.
      The records in this matter indicate that Moore violated each of the two
subsections of the Texas aggravated assault statute, first by threatening
imminent bodily injury by using or exhibiting a deadly weapon in a 2009
conviction and then by causing a serious bodily injury by shooting an
individual in a 2011 conviction. See TEX. PENAL CODE § 22.02(a)(1) and (2).
Both of these convictions qualify as violent felonies under the use of force

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clause only if, as relevant here and as would be the case under a categorical
analysis of § 22.02(a), the elements of Texas aggravated assault, and not the
particular facts underlying Moore’s convictions, satisfy the force clause.
United States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005).
      Moore argues that an individual may make an idle threat which would
not involve the use force and that the infliction of bodily injury may occur
without the use of force, such as through poison or inviting an unwitting victim
into traffic.   Further, he contends that because bodily injuries may occur
without the use of force, threatening such injuries similarly would not involve
force. Moore’s analysis requires us to separate the assault offense from the
conduct which makes the assault aggravated.          We have rejected such an
analysis asking whether each part of the offense, standing alone, involves
force. See United States v. Ceron, 775 F.3d 222, 229 (5th Cir. 2014); see also
United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015).
      In considering aggravated assault as a single offense, subsection (a)(2) of
the state statute involves the least culpable conduct. TEX. PENAL CODE § 22.02.
Subsection (a)(2) requires only the use or display of the deadly weapon during
the assault, whether by injury, threat, or contact, as opposed to actually
causing serious bodily injury in one of those ways. See TEX. PENAL CODE
§ 22.02(a). We have been increasingly skeptical of arguments, like Moore’s,
that rely on theoretical possibilities rather than actual applications of state
statutes. See Ceron, 775 F.3d at 229.
      Texas case law, read in conjunction with the Supreme Court’s instruction
on physical force, supports the conclusion that § 22.02 constitutes a violent
felony. The Supreme Court has explained that, “in the context of a statutory
definition of ‘violent felony,’ the phrase “physical force” means violent force --
that is, force capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010) (italics in original). The

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Texas Court of Criminal Appeals has noted of the Texas aggravated assault
statute that both subsections necessarily “involve[] the use of a deadly weapon
. . . which is anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Landrian v. State, 268 S.W.3d 532,
538 (Tex. Crim. App. 2008) (internal quotation marks and citation omitted).
Likewise, we have noted that, “a deadly weapon, in that it is capable of
producing death, is an instrument of physical force.” United States v. Velasco,
465 F.3d 633, 641 (5th Cir. 2006) (U.S.S.G. § 2L1.2(b)(1)(A) case).
      In light of this case law and the absence of state case law supporting
Moore’s hypothetical applications of the state’s aggravated assault statute,
Moore fails to show that the district court clearly or obviously erred when it
concluded that his 2009 and 2011 aggravated assault convictions qualify as
violent felonies under § 924(e) and § 4B1.4. See Henao-Melo, 591 F.3d at 801;
Guzman, 797 F.3d at 348.
      The judgment of the district court is AFFIRMED.




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