     Case: 14-51250   Document: 00513504696     Page: 1   Date Filed: 05/13/2016




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

                                No. 14-51250                             FILED
                              Summary Calendar                       May 13, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

QUENTIN LAVELLE JEFFRIES,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas

                           _______________________

     ON REMAND FROM THE UNITED STATES SUPREME COURT


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      The attorney appointed to represent Quentin Lavelle Jeffries moved for
leave to withdraw and filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Jeffries did not file a timely response. We granted the motion to withdraw and
dismissed the case as frivolous. United States v. Jeffries, 616 F. App’x 763 (5th
Cir. 2015), vacated, No. 15-7300, 2016 U.S. LEXIS 2191 (Mar. 28, 2016).
      Proceeding pro se, Jeffries filed a petition for certiorari in the United
States Supreme Court, which we have reviewed together with his (late-filed)
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                                  No. 14-51250

briefing in our court. In his petition for certiorari, Jeffries alleged that he was
sentenced pursuant to the residual clause of the United States Sentencing
Guidelines § 4B1.2. The Solicitor General advised that his position was that
such arguments about Johnson should be returned to the circuit court for
ruling in the first instance.    The Court granted the petition, vacated the
judgment, and remanded for “further consideration in light of Johnson v.
United States, 576 U.S. __, 135 S. Ct. 2551 (2015).” Jeffries, 2016 U.S. LEXIS
2191, at *1. In Johnson, the Court examined the “residual clause” of the Armed
Career Criminal Act (“ACCA”) and concluded that it was unconstitutional,
leaving the remainder of the enhancement sections of the ACCA undisturbed.
Johnson, 135 S. Ct. at 2556, 2563. Johnson addressed the underlying crime of
“possession of a short-barreled shotgun.” Id. at 2556.
      Examining the presentence investigation report (PSR), to which Jeffries
did not object on any relevant ground, we determine that he was sentenced as
a career offender under the United States Sentencing Guidelines § 4B1.1 which
states as follows:
      (a) A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense;
      and (3) the defendant has at least two prior felony convictions of
      either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. The effect of this designation is to raise the offense level used
to calculate the relevant guidelines sentence (rather than setting a mandatory
minimum as is the case with the ACCA). The guidelines define the term “crime
of violence” in the same way that the ACCA defines the term “violent felony.”
Compare U.S.S.G. § 4B1.2, with 18 U.S.C. § 924(e)(2)(b). However, Application
Note 1 to § 4B1.2 specifically enumerates aggravated assault as a “crime of
violence.”


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                                        No. 14-51250

       Jeffries does not contest that his present conviction and one prior
conviction were controlled substance offenses under § 4B1.2. The other prior
crime used to designate Jeffries as a career offender was the crime of
aggravated assault with a deadly weapon 1 under Texas Penal Code § 22.02,
which is a specifically enumerated crime of violence under Application Note 1.
See United States v. Guillen-Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007)
(addressing Application Notes to U.S.S.G. § 2L1.2(b)(1)(A)).                      Accordingly,
Jeffries was not sentenced under the ACCA, 2 nor was he sentenced under the
residual clause of § 4B1.2. Therefore, he has no arguable claim of relief under
Johnson, even assuming arguendo that Johnson’s analysis applies to career
offender determinations under the sentencing guidelines.
       AFFIRMED.




       1   The PSR attaches the charging instrument and judgment describing his crime as
“aggravated assault with a deadly weapon.” The charging instrument states that he
“intentionally and knowingly use[d] a deadly weapon” causing bodily injury to the victim.
Jeffries states that his conviction was pursuant to Texas Penal Code § 22.02.
       2  We previously examined a Johnson challenge to an ACCA enhancement based upon
a violation of Texas Penal Code § 22.02 and concluded that the defendant there could not
prevail under plain error review. United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015)
(rejecting the defendant’s Johnson challenge because it is not plain that Texas Penal Code
§ 22.02 is not a violent felony under the force clause of 18 U.S.C. § 924(e)(2)(B)), cert. denied,
136 S. Ct. 851 (2016). Here, too, Jeffries’s arguments would face plain error review.


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