     Case: 17-11371      Document: 00514912563         Page: 1    Date Filed: 04/11/2019




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

                                      No. 17-11371                             FILED
                                                                           April 11, 2019
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

                                                 Plaintiff-Appellee

v.

MELVIN LEWIS ANDREWS,
                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-114-3


Before JOLLY, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       By guilty plea entered in August 2017, the appellant, Melvin Lewis
Andrews, was convicted of interference with commerce by robbery (Hobbs Act
robbery) and aiding and abetting, in violation of 18 U.S.C. §1951(a) and §2, in
connection with the 2014 robbery of a jewelry store in Grapevine, Texas. On
November 6, 2017, he was sentenced to term of imprisonment of 188 months.
Andrews now appeals his sentence, arguing the district court erred by applying
the U.S.S.G. § 4B1.1 career offender enhancement based, in part, on his 2016



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11371

robbery conviction under California Penal Code § 211. Specifically, Anderson
challenges the use of his California robbery conviction for purposes of the
§ 4B1.1 career offender adjustment on two grounds: (1) the California robbery
conviction is not a “crime of violence” and (2) the California robbery conviction
is not a “prior” conviction. Although Andrews preserved his first argument in
the district court, he raises his second argument for the first time on appeal.
For the reasons stated herein, we affirm.
                                        I.
      Using the 2016 edition of the Sentencing Guidelines in preparing the
pre-sentence investigation report (“PSR”), the probation officer calculated
Andrews’ total offense level to be 28 and his criminal history category to be IV.
The resulting guidelines range of imprisonment was 110 to 137 months. Both
the government and Andrews raised objections to the probation officer’s
guidelines calculation.
      With its objection to the PSR, the government argued Andrews is a
career offender, pursuant to U.S.S.G. §§4B1.1 and 4B1.2, based on two
convictions of crimes of violence: (1) a 1998 federal conviction for interference
with commerce by robbery and displaying a firearm and (2) his 2016 California
conviction for robbery.    Applying the §4B1.1 adjustment, the government
argued Andrews’ offense level would be 32, and his criminal history category
VI, yielding a guidelines range of imprisonment of 210-262 months. Andrews
opposed the government’s objection, arguing that California robbery is not
categorically a crime of violence because it allows a conviction based on non-
violent actions against property in the vicinity of the victim.
      Andrews also objected to the PSR, arguing that the California robbery
conviction was “relevant conduct” to the offense of conviction and should not
be afforded a criminal history point. Accordingly, he argued that his total



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offense level should be 28, resulting in a guidelines range of imprisonment of
97 to 121 months. The government disagreed, arguing the two crimes were
separate courses of conduct.
       The probation officer issued an Addendum to the PSR, declining to apply
the career offender provisions, reasoning the California robbery statute
appears broader than the definition of generic robbery provided in the Model
Penal Code. Also rejecting Andrews’ objection, the probation officer concluded
the 2012 California robbery (for which Andrews was convicted and sentenced
in 2016) was not part of the instant offense (occurring in 2014) and, because
the 2016 California sentence was imposed before Andrews’ November 2017
sentencing in this case, it constituted a “prior sentence” for purposes of U.S.S.G
§ 4A1.1 and § 4A1.2(a), comment. (n.1).
       At the sentencing hearing, the district court overruled Andrews’
objections for the reasons set forth in the PSR Addendum. Following argument
from counsel, relative to whether the California robbery offense was a crime of
violence for purposes of §4B1.1 and §4B1.2, the district court sustained the
government’s objection, finding the crime of violence career offender
adjustment applied. With that enhancement, the district court calculated
Andrews’ resulting total offense level to be 29 (reflecting a §3E1.1 three-level
deduction for acceptance of responsibility) and his criminal history category
VI, yielding a guidelines range of imprisonment of 151 to 188 months. 1
       The district court sentenced Andrews to 188 months of imprisonment
and three years of supervised release and ordered restitution in the amount of
$1,031,307.56. The district court further ordered the term of imprisonment to


       1   The probation officer included this alternative guidelines calculation in the
Addendum to the PSR for use if the district court were to disagree with the probation officer’s
response to the government’s objection and find the §4B1.1 career offender enhancement
applicable.


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run consecutively to the three-year sentence imposed for Andrews’ California
robbery. Andrews timely appealed.
                                        II.
      Relative to Andrews’ first assignment on error, the district court’s
determination that an offense qualifies as a “crime of violence” under the
United States Sentencing Guidelines is a legal question subject to de novo
review. United States v. Jones, 752 F.3d 1039, 1040 (5th Cir. 2014). “Although
the guidelines are advisory post-Booker, we must ‘ensure that the district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the [g]uidelines range.’” United States v. Richardson,
676 F.3d 491, 508 (5th Cir. 2012) (quoting United States v. Cisneros–Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008)).
      Pursuant to U.S.S.G. § 4B1, a defendant is a career offender if, after the
age of 18, he commits a felony (“the instant offense of conviction”) that is either
a “crime of violence or a controlled substance offense” and “has at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. §4B1.1(a) (2016). Under the 2016 version of the Sentencing
Guidelines, robbery is one of the enumerated offenses constituting a crime of
violence. U.S.S.G. § 4B1.2(a)(2) (2016).
      We previously have held that robbery, in violation of California Penal
Code § 211, categorically “falls within the generic or contemporary meaning of
robbery as understood by this court” for purposes of former U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). See United States v. Tellez-Martinez, 517 F.3d 813, 815
(5th Cir. 2008); see also United States v. Montiel-Cortes, 849 F.3d 221, 227 (5th
Cir. 2017). The generic definition of robbery “may be thought of as aggravated
larceny containing at least misappropriation of property under circumstances
involving immediate danger to the person” of the victim and “regardless of how



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the robbery occurs, that danger is inherent in the criminal act.” Id. We also
have determined that a crime of violence under § 2L1.2 is a crime of violence
under § 4B1.2. See United States v. Flores-Vasquez, 641 F.3d 667, 670 n.1 (5th
Cir. 2011). We find no basis to depart from these prior determinations; thus,
we find no merit to Andrews’ first assertion of error, i.e., that California
robbery conviction is not a “crime of violence” for purposes of §4B1.1 and
§4B1.2(a).
      In reaching this conclusion, we are well aware, as argued by Andrews,
that, as of August 1, 2016, Amendment 798 to U.S.S.G. §4B1.2 added a
definition for “extortion” to the application notes for §4B1.2. See U.S.S.G.
§4B1.2, comment. (n. 1); U.S.S.G. Supp. Appx. C, Amend. 798 (Aug. 1 2016).
Unlike other circuits, however, the Fifth Circuit’s prior determination that
California robbery constitutes a crime of violence, for purposes of §2L1.2, turns
solely on a comparison of the California statute with the generic definition of
robbery. See Tellez-Martinez, 517 F.3d at 815 (even where victim is placed in
fear of injury to property, property is misappropriated in circumstances
involving immediate danger to the person; essential language of the California
statute defines robbery as crime committed directly against the victim, or in
his presence, and against his will). Accordingly, the Fifth Circuit does not
require the generic robbery/generic extortion combination utilized by other
circuits in cases involving California robbery accomplished by means of fear of
injury to property. See e.g., United States v. Bankston, 901 F.3d 1100 (9th Cir.
2018) (discussing impact on Amendment 798 to Ninth Circuit case law); United
States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017) (same). Thus, at least with
respect to California robbery, in violation of California Penal Code §211,
Amendment 798 is immaterial in this instance.




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                                      III.
      Turning to the second assignment of error, Andrews argues that his 2016
California robbery conviction does not qualify as a “prior” conviction for
purposes of § 4B1.1 because he did not commit the instant 2014 offense
“subsequent to” sustaining the California conviction, as required by §4B1.2(c).
Unlike his first assignment of error, Andrews did not raise this issue in the
court below. Thus, our review is for plain error, rather than for harmless error.
See United States v. Huerra, 884 F.3d 511, 519 (5th Cir. 2018). Under either
standard, however, a claimed error must “affec[t] substantial rights” to
warrant relief on appeal. FED. R. CRIM. P. 52. The primary difference between
the two standards is that under plain error review, the defendant has the
burden of proving that an error affected his substantial rights, whereas under
harmless error review, the burden is on the government to prove that an error
did not affect the defendant’s substantial rights. United States v. Olano, 507
U.S. 725, 734-35 (1993).
      In the harmless error context, we recognize two ways for the government
to demonstrate harmless error when the wrong guidelines range has been
employed. United States v. Guzman-Rendon, 864 F.3d 409, 411 (5th Cir.), cert.
denied, 138 S. Ct. 524 (2017). The first way entails showing “that the district
court considered both ranges (the one now found incorrect and the one now
deemed correct) and explained that it would give the same sentence either
way.” Id. at 411. The second way applies in the absence of record evidence
showing the district court considered the correctly calculated guideline range,
and requires “compelling [proof] that the district court would have imposed a
sentence outside the properly calculated sentencing range for the same reasons
it provided at the sentencing hearing” and “that the sentence the district court
imposed was not influenced in any way by the erroneous [g]uidelines



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calculation.” United States v. Martinez-Romero, 817 F.3d 917, 924 (5th Cir.
2016). See also Guzman-Rendon, 864 F.3d at 411 (“the other way applies even
if the correct guidelines range was not considered, and requires that “‘[the
government] convincingly demonstrate” the district court would have imposed
the same sentence for the same reasons given at the prior sentencing). 2
      To show plain error, Andrews must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. Although an error in calculating
the applicable guidelines range is normally enough to show an effect on
substantial rights for purposes of plain error review, the defendant likewise
may not carry his burden if the court believed the sentence was appropriate
regardless of the correct guidelines range or the sentence was based “on factors
independent of the Guidelines.” Molina-Martinez v. United States, 136 S. Ct.
1338, 1346-47 (2016); see also United States v. Hott, 866 F.3d 618, 621 (5th Cir.
2017) (plain error review unsatisfied where record showed district court
thought the chosen sentence appropriate irrespective of the guidelines range
and the defendant failed to show a reasonable probability of a different
outcome); United States v. Munoz-Canellas, 695 Fed. Appx. 748 (5th Cir. 2017)
(“under either a harmless-error or plain-error standard, we will not reverse a
sentence if we are convinced that the district court would have imposed the
same sentence, regardless of the error.”)
      Here, the record reflects that the district court was well aware of the
differing guidelines ranges posited by the parties and declared, several times,


      2 The mere reasonableness of the imposed sentence, however, considered alone, will
not support its affirmance. United States v. Hernandez-Montes, 831 F.3d 284, 296 (5th Cir.
2016).


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that it otherwise would impose the same sentence even if any of its rulings on
the parties’ objections to the guidelines range calculations were incorrect. 3
Specifically, the district court explained that it would impose the same
sentence based on Andrews’ extensive criminal history, which included
convictions for possession with intent to distribute cocaine, criminal trespass,
affecting interstate commerce by robbery and displaying a firearm, assault and
battery, domestic violence, and robbery.
       Additionally, the court stated that, irrespective of its rulings on the
objections, the sentence takes into account the sentencing factors under 18
U.S.C. § 3553(a), such as the history and characteristics of the defendant, the
seriousness of the offense, respect for the rule of law, just punishment,
deterrence, and protection of the public. The district court was aware,
moreover, that Andrews had been sentenced to only three years imprisonment
relative to the 2012 California jewelry store robbery; indeed, the court ordered
Andrews’ sentence here to be consecutive to the California sentence. 4
       In its brief, the government concedes that the district court committed
clear or obvious error by characterizing the 2016 California robbery conviction
as a prior conviction, given the timing requirements of §4B1.2(c), but argues
that Andrews cannot show that he is entitled to relief on plain error review.
We agree.
       As set forth above, the district court considered both the correct and
incorrect guidelines ranges and explained, multiple times, that it would select
the same sentence, regardless of any error in its rulings on objections, and

       3 These declarations appear in the transcript of the sentencing hearing and the
written statement of reasons form completed by the sentencing judge. The alternative
guideline ranges posited by the parties are set forth in the government’s objections, the
defendant’s response to those objections, and the Addendum to the PSR.
       4 Notably, even in the absence of a career offender enhancement, paragraph 116 of the

PSR identified this lengthy criminal history and the §3553 factors as factors that might
warrant an upward non-guidelines (variance) sentence.


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provided detailed reasons. And, though the instant, unpreserved error (based
on the timing of the California robbery conviction) differs from the particular
crime of violence objection that was considered by the district court, we do not
find that difference material, given the more substantive nature of that
objection, directed to whether the earlier robbery qualified as a crime of
violence. Finally, moreover, we note that Andrews’ briefing of the “substantial
rights” issue consists solely of the conclusory assertions that the “error affected
[his] substantial rights” and “affects the fairness, integrity, and public
reputation of judicial proceedings.”
      For all these reasons, the plain error that occurred in treating the
California conviction as a “prior” conviction for career offender purposes did
not affect Andrews’ substantial rights.      Accordingly, the judgment of the
district court is AFFIRMED.




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