     Case: 11-30328     Document: 00511856452         Page: 1     Date Filed: 05/15/2012




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

                                                                            FILED
                                                                           May 15, 2012

                                       No. 11-30328                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

JEREMY BENDER,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:09-CR-232-1


Before KING, BARKSDALE, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
        Defendant–Appellant Jeremy Bender appeals his conviction pursuant to
a guilty plea for assault with a dangerous weapon as well as the sentence
imposed. For the reasons stated below, we AFFIRM. However, we REMAND
the case for the limited purpose of correcting a clerical error in the judgment.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30328

                                     I. BACKGROUND
A. Factual Background
       On October 29, 2008, Bender, then an inmate at the United States
Penitentiary in Pollack, Louisiana, was involved in a four-person physical
altercation in a cell occupied by inmates Russell Harmon and Andrew Dickerson.
Exactly what precipitated this confrontation was the subject of conflicting
evidence during Bender’s plea hearing and two sentencing hearings.
       Bender gave the following account during his second sentencing hearing.
On October 27, Bender and several other inmates told Harmon that he was not
welcome among the general population of the prison because he was a child
molester. Two days later, Rhyan Driggans, another inmate, told Bender that
Harmon wanted to speak with him.1 Accordingly, Bender, accompanied by
inmate Stephen Brum, went to the prison unit in which Harmon’s cell was
located, passed through a metal detector, and explained to an inquiring officer
that they were there to speak with Harmon. The officer gave them permission
to speak with Harmon for not more than ten minutes.2 Upon entering Harmon’s
cell, Bender was “taken aback” because the cell lights were turned off and
Harmon was sitting on his table in the dark. Harmon “abruptly” moved toward
Bender and began striking him.3 Bender noticed at the same time that Brum
was fighting with Dickerson, who was also present in the cell.
       As the fight went on, Bender “heard a loud pop at [his] feet,” looked at the
floor, and saw that a shank had fallen in front of him. He “instinctively grabbed


       1
           Driggans, who testified by video, corroborated this fact.
       2
        An FBI agent testified to the contrary that a guard in the prison unit had ordered
Bender and Brum to leave the unit and that they had defied this order.
       3
        As noted below, the FBI agent testified that Harmon and Dickerson had not done
anything to provoke the fight. He also testified, however, that his investigation was based
upon a surveillance video and that it captured only what occurred outside the cell, not inside.

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                                       No. 11-30328

the knife before Harmon could.” It appeared to Bender that Dickerson was
stabbing Brum, so Bender stabbed Dickerson, and also stabbed Harmon, who
had continuously been striking him. Bender threw the shank to the floor and
kept fighting with Harmon. Corrections officers soon arrived and broke up the
fight. The officers found a shank near the scene of the fight. Both Harmon and
Dickerson suffered injuries and received outside medical care.
B. Procedural Background
      Bender was indicted for assault with a dangerous weapon, with intent to
do bodily harm, and without just cause or excuse, in violation of 18 U.S.C.
§ 113(a)(3). Bender entered into a plea agreement with the Government.
      At Bender’s plea hearing, the Government presented the factual basis for
the plea through the testimony of FBI agent Benjamin Walsh. Walsh testified
that Bender had entered Harmon’s cell, that a fight had ensued, that Harmon
and Dickerson had done nothing to provoke the fight, and that a shank had been
recovered from the scene. The court enumerated the elements of the offense,4
and Bender said that he understood the elements and agreed that he had
committed each element of the offense. The court accepted Bender’s plea of
guilty as voluntarily and knowledgeably entered.
      Bender’s presentence investigation report (“PSR”) assigned a base offense
level of 14. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2A2.2(a).
Four levels were added because a dangerous weapon had been used in the
assault, see id. at § 2A2.2(b)(2)(B), and four additional levels were added because

      4
          The court stated:

      [F]or you to be convicted of assault with a dangerous weapon, the government
      has to prove the following beyond a reasonable doubt: First, that you, as the
      defendant, assaulted [Harmon] and [Dickerson] by intentionally striking and
      wounding [them]. . . . Second, that you acted with the specific intent to do bodily
      harm to [Harmon] and [Dickerson]; Third, that you used a dangerous weapon;
      and Fourth, that the assault took place at USP Pollock, a location within the
      special jurisdiction of the United States.

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of the degree of injury suffered by Harmon and Dickerson,5 see id. at
§ 2A2.2(b)(3)(D). The PSR designated Bender a career offender, and accordingly
his offense level was raised to 24. See id. at § 4B1.1(a) and (b)(5). Finally, three
levels were subtracted for acceptance of responsibility, see id. at § 3E1.1(a) and
(b), leaving Bender with a total offense level of 21.6 Bender’s criminal history
category would have been V, see id. at § 4A1.1, but because he was classified as
a career offender, his criminal history category was VI, see id. at § 4B1.1(b),
resulting in an advisory guidelines range of 77 to 96 months in prison, see id. at
ch.5, pt. A.
       Bender made two objections to the PSR that are relevant to this appeal.
First, Bender objected to the PSR’s conclusion that more than minimal planning
was involved in the assault, see id. at § 2A2.2(b)(1). Originally, the district court
overruled this objection, stating: “I think that objection must be overruled with
regard to the planning and degree of planning.                     There was planning in
connection with this. At least that’s my finding.” Bender’s attorney said that
Bender intended to speak on the subject of planning during his allocution, to
which the court responded, “Well, maybe he’ll change my mind as far as the
objection.” When the court gave Bender the opportunity to speak “in mitigation
of punishment,” Bender gave his account of the incident, stating that Driggans
had summoned him to speak with Harmon, that Harmon had attacked him
when he entered his cell, and that he had stabbed Harmon and Dickerson with


       5
        The original PSR also added two levels because the assault “involved more than
minimal planning.” See id. at § 2A2.2(b)(1). As discussed in more detail below, after hearing
Bender’s version of events at the second sentencing hearing, the district court removed this
enhancement.
       6
          The PSR states that Bender’s total offense level is 24, but this number erroneously
fails to include the three-level reduction for acceptance of responsibility. See id. at § 4B1.1(b)
(stating that the automatic offense level applied to career offenders should be reduced
accordingly with an acceptance-of-responsibility adjustment). Applying that reduction, the
total offense level is 21.

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                                   No. 11-30328

the shank in self-defense. During his description of these events, Bender did not
move to withdraw his guilty plea, nor did he move to withdraw it at any other
point during the hearing. The district court ultimately agreed with Bender’s
objection and removed the enhancement for planning from the PSR.
      Second, Bender objected to his designation as a career offender. Bender
argued that the two prior offenses upon which his career offender status was
based should be treated as one offense, in which case the enhancement would
not apply. The district court concluded that the two offenses were properly
considered separate offenses and that therefore the career offender enhancement
was appropriate. The district court sentenced Bender within the advisory
guidelines range to 77 months in prison. Bender timely appealed.
                                  II. DISCUSSION
A. Factual Basis for Guilty Plea
      Bender first argues that the district court erred in accepting his guilty plea
because it was not supported by a factual basis. The first issue we must address
is the proper standard of review for this claim of error. The Government argues
that Bender never objected before the district court to the factual basis
underlying his guilty plea and that therefore the standard of review is for plain
error. Bender counters that he “made the district court fully aware that it was
accepting his plea despite his claim that he . . . fought off his attacker purely in
self-defense,” and that in doing so he fully preserved the issue for appeal such
that review is for clear error.
      In support of his argument, Bender cites United States v. Reasor, 418 F.3d
466, 470 (5th Cir. 2005), where the court treated an objection to the factual basis
for a plea as having been made when, although defense counsel failed to make
a “formal objection,” counsel nevertheless “informed the court that there might
be legal defenses” to the charges for which the defendant was entering a guilty
plea. The purpose of an objection is to give the district court notice of an alleged

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                                   No. 11-30328

defect and the opportunity to cure it. Hartford Lloyd’s Ins. Co. v. Teachworth,
898 F.2d 1058, 1060 (5th Cir. 1990). Reasor is inapposite because there defense
counsel did more to put the court on notice than Bender did here. Unlike
defense counsel in Reasor, Bender did not tell the court that a legal defense may
apply. Bender’s allocution at sentencing was framed (1) by his attorney’s
statement that Bender wanted to address the issue of planning and (2) by the
court’s invitation for Bender to speak about mitigating factors. Bender did not
direct the court’s attention to the impact of his allocution on the factual basis for
his previously entered guilty plea, and hence the district court was not put on
notice of a possible defect. For this reason, Bender’s claim will be reviewed for
plain error. See United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en
banc).
      To succeed on plain error review, Bender must establish that there was (1)
an error (2) that was clear or obvious and (3) that affected his substantial rights,
United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc), which
requires Bender to show that there is a “reasonable probability that, but for the
error, he would not have entered the plea,” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). If Bender makes this showing, we then have discretion
to remedy the error, which discretion should be exercised only if the error
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Delgado, 672 F.3d at 329 (internal quotation marks omitted).
      “Before entering judgment on a guilty plea, the court must determine that
there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The facts
supporting the plea must appear in the record and must be sufficiently specific
to allow the court to determine if the defendant’s conduct was within the ambit
of that defined as criminal.” United States v. Cano-Guel, 167 F.3d 900, 906 (5th
Cir. 1999) (internal quotation marks omitted). “[E]vidence adduced after the
acceptance of a guilty plea, but before or at sentencing, may provide the factual

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                                  No. 11-30328

basis of the plea . . . .” United States v. Dyer, 136 F.3d 417, 424 n.13 (5th Cir.
1998). To determine whether the factual basis is sufficient, the district court
must compare “(1) the conduct to which the defendant admits with (2) the
elements of the offense charged in the indictment” to ensure that the defendant
understands the nature of the charge and that his admitted conduct falls within
the charge. Marek, 238 F.3d at 315. The elements of the offense for which
Bender admitted guilt are (1) an assault (2) with a dangerous weapon (3) with
the intent to do bodily harm. 18 U.S.C. § 113(a)(3); United States v. Estrada-
Fernandez, 150 F.3d 491, 494 (5th Cir. 1998).
      Between the testimony of Walsh at the plea hearing and Bender at the
sentencing hearing, facts were adduced to support each element of the charged
offense. The testimony showed that Bender had stabbed Harmon and Dickerson
with a shank with the intention of harming them. Nevertheless, Bender argues
that the version of events he related during his allocution showed that there was
no factual basis for his guilty plea because he acted in self-defense.
      Self-defense is a form of the affirmative defense of justification. United
States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). The elements of this
defense are as follows: (1) the defendant “was under an unlawful and present,
imminent, and impending threat of such a nature as to induce a well-grounded
apprehension of death or serious bodily injury”; (2) the defendant “had not
recklessly or negligently placed himself in a situation in which it was probable
that he would be forced to choose the criminal conduct”; (3) the defendant “had
no reasonable legal alternative to violating the law[, that is, no chance] to refuse
to do the criminal act and also to avoid the threatened harm”; and (4) a “direct
causal relationship may be reasonably anticipated between the criminal action




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                                       No. 11-30328

taken and the avoidance of the threatened harm.” United States v. Wyly, 193
F.3d 289, 301 (5th Cir. 1999).7
       Bender cannot succeed under plain error review because he cannot show
that there is a reasonable probability that, but for any error, he would not have
pleaded guilty. Bender argues in his reply brief that “[h]ad he understood prior
to this appeal that he was not guilty of the charged crime, he would not have
pleaded guilty.” However, Bender’s testimony directly contradicts this assertion.
During the sentencing hearing, Bender stated: “I pled guilty . . . because of the
circumstances that were involved in this case, that I didn’t want to take my
chance of going to trial and trying to have a self-defense case or something and
then be convicted.” This statement reveals Bender’s awareness of self-defense
and his rejection of that defense prior to pleading guilty. United States v.
Gallegos-Velazquez, 414 F. App’x 654 (5th Cir. 2011) (per curiam) (unpublished),
presented a similar situation. There, the defendant pleaded guilty to assault
and later, in a sentencing memorandum, stated that he had acted in self-defense.
Id. at *1. On plain error review, we concluded that the defendant could not show
that any error in accepting his guilty plea affected his substantial rights because
the defendant said that he had considered and rejected pursuing self-defense
prior to pleading guilty. Id. at *2. For this reason, Bender has not shown that
the district court plainly erred in accepting his guilty plea.8


       7
        Wyly states that these are the elements of the duress defense, but this court has used
the same elements to define the general defense of justification, United States v. Caldwell, 257
F. App’x 764, 769 (5th Cir. 2007) (per curiam) (unpublished), and self-defense, United States
v. McGee, 29 F.3d 625, at *6 (5th Cir. 1994) (unpublished). The elements also closely track
section 1.36 of the Fifth Circuit Pattern Jury Instructions, titled “Justification, Duress, or
Coercion.” Fifth Circuit Pattern Jury Instructions: Criminal § 1.36 (West 2001).
       8
          Even if Bender were able to show that his substantial rights were affected, he would
still not succeed under plain error review because he cannot show that there was a clear and
obvious error—United States v. Abreo, 30 F.3d 29 (5th Cir. 1994), supports the conclusion that
the district court did not err in accepting Bender’s guilty plea. In that case, the court asked
Abreo during his plea hearing whether anyone had tried to force him to plead guilty, to which

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                                       No. 11-30328

B. Career Offender Designation
       Bender next argues that two juvenile offenses that were used to classify
him as a career offender should not have been counted separately because the
two offenses were originally contained in the same charging instrument. While
the sentencing guidelines are only advisory under United States v. Booker, 543
U.S. 220 (2005), the district court must follow the proper procedures in
calculating the advisory guidelines range, and procedural error warrants
reversal regardless of the substantive reasonableness of the resulting sentence.
United States v. Bonilla, 524 F.3d 647, 655–56 (5th Cir. 2008). “We review a
district court’s interpretation and application of the sentencing guidelines de
novo and its factual findings for clear error.” United States v. Solis, 675 F.3d
795, 797 (5th Cir. 2012).
       A defendant is designated a career offender if: (1) he was at least eighteen
years old at the time he committed the charged offense; (2) the charged offense
is a crime of violence or a controlled substance offense; and (3) the defendant has
at least two prior felony convictions that were either crimes of violence or
controlled substance offenses. U.S.S.G. § 4B1.1(a). Prior sentences are counted
as separate offenses if an intervening arrest separated the offenses. Id. at
§ 4A1.2(a)(2). If there was no intervening arrest, prior sentences are counted
separately unless the sentences resulted from offenses contained within the


Abreo said no. Id. at 31. Later, at the sentencing hearing, Abreo told the court that his guilty
plea was motivated by threats from his co-defendant. Id. at 30–31. Abreo did not move to
withdraw his plea or object to the voluntariness of his plea; rather, his testimony about the
threats “was offered in an effort to obtain leniency from the district court in sentencing.” Id.
at 31 n.1. Abreo argued on appeal that the court had erred by failing to make a more
searching inquiry into the voluntariness of his plea after hearing him testify about having
been threatened. Id. at 30–31. We declined to “impose a duty on the district court to
reconsider sua sponte the voluntariness of a plea at the sentencing hearing when the
defendant has made no objection.” Id. at 31 n.1. Similarly, here, where the first mention of
facts relating to self-defense occurred at the sentencing hearing and where no objection to the
factual basis for the plea was made, the district court did not err by failing to sua sponte
inquire into the factual basis for the plea.

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                                         No. 11-30328

same charging instrument or the sentences were imposed on the same day. Id.
In Bender’s case, there was no intervening arrest and the sentences were
imposed on different dates. Therefore, whether these sentences are to be treated
separately depends on whether they resulted from offenses contained within the
same charging instrument.
       The two prior offenses at issue were committed by Bender when he was a
juvenile and were originally handled by Maine’s juvenile justice system. Bender
states that the two prior offenses “were committed as part of a single crime spree
that crossed county lines.” He emphasizes that the offenses were originally
charged together in a single charging instrument by the Maine Youth Center.
However, Bender was ultimately charged as an adult, and at that time, the
charges appeared in separate charging instruments for the two jurisdictions
involved and were prosecuted in separate courts.
       Bender argues that because the two offenses were originally contained
within the same charging instrument, they should be treated as one offense and
thus Bender should not be designated a career offender.
       The Government first responds by pointing out that Bender has not
produced any evidence that the two offenses were originally charged in the same
instrument.9 The Government also notes that the PSR states that the juvenile

       9
        Bender argues in his Reply Brief that although the juvenile charging instrument
containing both offenses is not in the record, the district court made a finding of fact that there
was only one juvenile charging instrument. Bender is incorrect. The following statement by
the court is the only relevant portion of the page of the record that he cites in support of his
argument:

       I have to then go on to the issue of the career criminal calculations. Looking at
       it and following the law, it does appear that you qualify, that it fits. And I
       realize it all started out in a juvenile proceeding because the way the State of
       Maine did that; but in fact, they were separate offenses on separate days and
       separate jurisdictions, and once they were sent to the adult forum, the two
       different jurisdictions, those are separate offenses for purposes of that career
       criminal statute and the calculation.


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                                      No. 11-30328

offenses were originally filed under docket numbers 95JV668 and 675 and
95JV678 and 682, and argues that this is evidence that the offenses were
actually charged in separate instruments even in the juvenile system. Finally,
the Government argues that the sentences “were linked to those charging
documents in adult court, not to the charging documents filed in juvenile court.”
       We addressed a similar situation in United States v. Kennedy, No. 10-
50740, 2011 WL 6413872 (5th Cir. Dec. 22, 2011) (per curiam) (unpublished).
There, Kennedy argued that his counsel had been ineffective for failing to object
to the use of two prior felony convictions to classify Kennedy as a career offender.
Id. at *1. The two prior offenses had originally been charged in the same
indictment, but one of the charges was dismissed and subsequently charged in
a separate indictment. Id. at *2. Kennedy argued that because the offenses
were originally charged in the same indictment, they should have been counted
as a single offense. Id. Noting that Kennedy failed to provide any legal
authority for this argument, we held that his counsel was not ineffective for
failing to object. Id.
       In United States v. Rayford, 434 F. App’x 721, 723–24 (10th Cir. 2011)
(unpublished), Rayford argued that the district court had erred in counting his
prior offenses separately because the two convictions shared the same docket
number; also, the resulting sentences were run concurrently. The Tenth Circuit
disagreed, noting that the offenses had separate case numbers, which it
concluded raised the inference that the offenses were charged separately. Id. at
724. In United States v. Herrington, 350 F. App’x 363, 370 (11th Cir. 2009) (per
curiam) (unpublished), the Eleventh Circuit concluded that Herrington’s prior




The emphasized portion of this quotation falls short of making a factual finding that the
offenses were originally contained within the same charging document in the juvenile justice
system.

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                                  No. 11-30328

offenses were not contained in the same charging instrument because they were
prosecuted in separate jurisdictions.
      The circumstances here lead to the conclusion that Bender’s prior offenses
were properly treated separately. There is no record evidence that the offenses
were originally contained in the same charging instrument, and indeed the
docket numbers of the cases is some evidence that they were charged separately
even in juvenile court. In addition, the offenses were prosecuted under separate
case numbers in separate jurisdictions. For all of these reasons, the district
court did not err in treating Bender’s prior offenses separately and in
designating Bender a career offender.
C. Clerical Error in Judgment
      Finally, Bender requests that we remand the case for correction of a
clerical error in the judgment. Bender notes that while the judgment correctly
identifies 18 U.S.C. § 113(a)(3) as the statute to which he pled guilty, the nature
of the offense is incorrectly described as “Assault with Intent to Murder” rather
than “Assault with a Dangerous Weapon.” The Government agrees with Bender
that the judgment is incorrect in this respect. We therefore remand the case to
the district court for the limited purpose of correcting this error in the judgment
pursuant to Federal Rule of Criminal Procedure 36.
                              III. CONCLUSION
      We conclude that the district court did not plainly err in finding a factual
basis for Bender’s guilty plea and also did not err in treating Bender’s two prior
offenses separately for the purpose of designating him a career offender.
Therefore, the judgment of the district court is AFFIRMED. We REMAND the
case for the limited purpose of correcting the clerical error in the judgment.




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