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

                                                 FILED
                                                                         November 5, 2009

                                     No. 09-30096                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

CHRISTOPHER JACK,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:08-CR-00167


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Christopher Jack pleaded guilty to being a felon in possession of firearms
and ammunition.         On appeal, Jack raises only one issue: whether a prior
conviction for violating La. Rev. Stat. § 14:94 was a conviction for a “crime of
violence” within the meaning of Section 2K2.1(a)(2) of the Sentencing
Guidelines. We AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 09-30096

       The Presentence Report (PSR) assigned an offense level of 24 to Jack’s
current conviction, reasoning that he committed the “instant offense subsequent
to sustaining at least two felony convictions of either a crime of violence or a
controlled substance offense.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 2K2.1(a)(2) (2008). After making other calculations not in dispute here, the
PSR arrived at a total offense level of 30. With a criminal history score of IV,
Jack’s guidelines range was 135-168. However, because the statutory maximum
for this offense was lower than the range–120 months–the statutory maximum
became the guidelines sentence. U.S.S.G. § 5G1.1(a); United States v. Allison,
63 F.3d 350, 354 (5th Cir. 1995).
       Jack does not dispute that he has one conviction for a controlled substance
offense; he disputes only the nature of the §14:94 offense. He argues that if that
conviction had not been counted as a crime of violence, he would have had a
guidelines range of 100-125 months (capped at the 120-month statutory
maximum).
       Jack concedes that he failed to raise this issue before the district court
such that the plain error standard applies.               We pretermit the question of
whether his § 14:94 conviction is a crime of violence 1 because we conclude that,
if the district court erred, it is (1) harmless error and (2) not plain error.


       1
            We note the likelihood that it is a crime of violence. Section 14:94(A) defines the
illegal use of a weapon as the “intentional or criminally negligent discharging of any firearm
. . . where it is foreseeable that it may result in death or great bodily harm to a human being.”
 The PSR asserts that Jack was convicted of “illegal discharge of a weapon” and sentenced to
six years of hard labor. It appears that Jack could have only received “six years of hard labor”
for violating subsection E of § 14:94, because the PSR reveals no prior convictions under this
statute within the preceding five years and does not indicate that he was sentenced under the
habitual offender provision for this offense. Subsection E states: “Whoever commits the crime
of illegal use of weapons . . . by discharging a firearm from a motor vehicle . . . , where the
intent is to injure, harm, or frighten another human being, shall be imprisoned at hard labor
for not less than five nor more than ten years . . . .” Read together, subsections A and E
constitute a crime that “presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2); see also Begay v. United States, 128 S. Ct. 1581, 1584-88 (2008)
(stating the residual clause references conduct that is “purposeful, violent and aggressive”).

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                                    No. 09-30096

      If the Government can show that the district court would have pronounced
the same sentence regardless of any error in calculating the guidelines range,
then the resulting error is harmless. United States v. Delgado-Martinez, 564
F.3d 750, 753 (5th Cir. 2009). We note that the sentence imposed was within the
guidelines range which Jack contends is the correct one. Further, the district
court clearly stated that it would have preferred to assess a higher sentence but
was constrained by the statutory maximum.2 In response to this assertion in the
Government’s brief, Jack did not file a reply pointing to any contrary indication
by the district court, and we have found none. Thus, we conclude that the error,
if any, is harmless.
      Even if we were to conclude that the district court’s intent was unclear, we
would still affirm. Unlike the statutes in the cases that Jack relies upon, the
“least culpable” conduct required to violate § 14:94 still requires that it be
“foreseeable that it may result in death or great bodily harm to a human being.”
Thus, in a “typical case” such a crime “presents a serious potential risk of
physical injury to another.” See United States v. Harrimon, 568 F.3d 531, 536
(5th Cir. 2009) (construing “violent felony” and holding that it is not necessary
that “every conceivable factual offense covered by a statute must necessarily
present a serious potential risk of injury” if the “typical case” violation would do
so) (internal citation and quotation marks omitted), petition for cert. filed, __
U.S.L.W. __ (U.S. Sept. 8, 2009) (No. 09-6395).            Where, as here, a strong
argument can be made that Jack was convicted of a crime of violence, any error
in so holding is not “plain.” See United States v. Ellis, 564 F.3d 370 (5th Cir.
2009), cert. denied, 78 U.S.L.W. 3175 (U.S. Oct. 5, 2009) (No. 08-11135).




      2
        “I can’t go any higher than [the statutory maximum] by law. There are some
instances that I’m looking at in your background that would indicate a higher sentence is
appropriate, but not when Congress has passed a law that says 120 months, maximum.”

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