     Case: 16-41497      Document: 00514230369         Page: 1    Date Filed: 11/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-41497                                    FILED
                                  Summary Calendar                          November 8, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHNNIE OWEN, IV,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-308-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Johnnie Owen, IV, appeals the sentence imposed following his conviction
of conspiring to possess with the intent to distribute 43.26 grams of a mixture
or substance containing methamphetamine. He contends that the district
court erred by sentencing him as a career offender under U.S.S.G. § 4B1.1
because he did not have “at least two prior felony convictions of either a crime
of violence or a controlled substance offense.” Owen raised his arguments in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the district court. Accordingly, we will review his claims de novo. United
States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016).
      The district court did not err by using Owen’s 2010 conviction of
aggravated assault in violation of Texas Penal Code § 22.02(a) as a predicate
“crime of violence” to support the career offender enhancement.        A Texas
aggravated assault conviction constitutes the enumerated offense of
“aggravated assault” for purposes of U.S.S.G. § 4B1.2(a) and satisfies
§ 4B1.2(a)(1)’s force-as-an-element clause. United States v. Shepherd, 848 F.3d
425, 427-28 (5th Cir. 2017); United States v. Guillen-Alvarez, 489 F.3d 197,
199-201 (5th Cir. 2007). Also, § 4B1.2(a)(2)’s residual clause “is not void for
vagueness.” Beckles v. United States, 137 S. Ct. 886, 892-97 (2017).
      However, the district court did err by using Owen’s 2014 conviction of
possessing certain chemicals with the intent to manufacture a controlled
substance in violation of Texas Health and Safety Code § 481.124 as a predicate
“controlled substance offense” to support the career offender enhancement.
For purposes of § 4B1.1(a)(2014), a “controlled substance offense” was defined
to include “[u]nlawfully possessing a listed chemical with intent to
manufacture a controlled substance (21 U.S.C. § 841(c)(1)).’”          § 4B1.2,
comment. (n.1)(2014). A listed chemical was defined to include List I chemicals
and List II chemicals as set forth in 21 U.S.C. § 802(34) and (35). 21 U.S.C.
§ 802(33) (2014). The Texas statute under which Owen was convicted made it
illegal to possess with the intent to manufacture a controlled substance (1)
anhydrous ammonia; (2) an immediate precursor; or (3) a chemical precursor.
TEX. HEALTH & SAFETY CODE § 481.124(a)(1)-(3)(2011). The statute prohibited
the possession of, among other things, anhydrous ammonia, lithium metal,
diethyl malonate, malonic acid, ethyl malonate, and barbituric acid. TEX.
HEALTH & SAFETY CODE           §§ 481.124(a)(1)-(3)(2011),   481.002(22)(2011),



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481.002(51)(2011); 37 TEX. ADMIN. CODE §§ 13.116 (2011), 13.117 (2011). None
of those chemicals are listed in § 802(34) and (35), and their possession is not
criminalized under § 841(c). Because each subsection of the Texas statute
criminalized a broader range of conduct than that which was referenced in
§ 4B1.2(b), Owen’s violation of the Texas statute was not a “controlled
substance offense” for purposes of § 4B1.1. 1 See Hinkle, 832 F.3d at 572. Thus,
the district court erred in sentencing Owen as a career offender in reliance on
this conviction.
       Owen does not appear to have any other prior convictions that may serve
as a second predicate offense to support the career offender enhancement. 2
Without the enhancement, Owen’s sentencing range would have been 70-87
months of imprisonment. Although the district court sentenced Owen below
his incorrectly calculated sentencing range, the 124-month term of
imprisonment imposed exceeded the range that would have applied if Owen
had not been deemed a career offender. Nothing suggests that the district
court would have imposed the same sentence absent the error. Accordingly,
the district court’s error was not harmless. See United States v. Ibarra-Luna,
628 F.3d 712, 714 (5th Cir. 2010).
       The Government concedes error and has filed an unopposed motion to
vacate Owen’s sentence and remand for resentencing. Accordingly, we GRANT




       1Because each subsection of § 481.124 individually criminalized the possession of
chemicals not included in § 4B1.2(b)’s definition of a “controlled substance offense,” this court
needs not determine whether the statute is divisible.

       2To establish that a defendant has “two prior felony convictions” for purposes of the
career offender enhancement, at least two of the sentences imposed must have been
separately assigned criminal history points under U.S.S.G. § 4A1.1(a), (b), or (c). § 4B1.2(c).
Owen was convicted in 2003 of aggravated assault. However the sentence imposed in that
case was too remote to be assigned criminal history points. See U.S.S.G. § 4A1.2(e)(3).


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the government’s motion, VACATE Owen’s sentence, and REMAND the case
to the district court for resentencing.




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