     Case: 11-40881     Document: 00512028645         Page: 1     Date Filed: 10/22/2012




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

                                                                            FILED
                                                                         October 22, 2012

                                       No. 11-40881                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JOSE MICHAEL GONZALEZ

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                   (11-CR-419)


Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
        Jose Michael Gonzalez (“Gonzalez”) pleaded guilty to possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 115
months imprisonment, three years supervised release, and a $100 special
assessment. Gonzalez appeals his sentence, arguing that he was erroneously
assigned a Base Offense Level of 24 on the basis of having previously sustained
two felony crime of violence convictions. The government concedes that
Gonzalez’s prior crime of retaliation under Texas law did not constitute a crime

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40881

of violence and that the error was not harmless. Accordingly, we REVERSE and
REMAND for resentencing.
                                        I.
      On March 31, 2011, Gonzalez was arrested in connection with a shooting
that occurred in La Armada Housing Projects in Corpus Christi, Texas. Gonzalez
pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1). The Presentence Investigation Report (“PSR”) recommended that
Gonzalez be assigned a Base Offense Level of 24 pursuant to U.S.S.G. § 2K2.1
because Gonzalez had previously sustained two felony convictions of crimes of
violence. It determined that Gonzalez’s 2002 Texas conviction of retaliation and
his 2007 Texas conviction of aggravated assault each constituted a conviction of
a crime of violence. The PSR also recommended a 4-level enhancement pursuant
to § 2K2.1(b)(6) because a firearm was used in connection with another violent
offense, and a 3-level reduction because Gonzalez accepted responsibility by
admitting the elements of the offense and entering a guilty plea. The PSR
determined that Gonzalez therefore had a total offense level of 25 and assigned
him a criminal history category of VI. His Guidelines range for imprisonment
was calculated at 110 to 120 months, with a statutory maximum of 10 years
imprisonment.
      Gonzalez objected to the PSR calculation of his base offense level, arguing
that his conviction for retaliation was not a crime of violence. At the sentencing
hearing, Gonzalez renewed his objection. The court denied Gonzalez’s objection,
adopted the PSR, and sentenced Gonzalez to 115 months imprisonment, followed
by 3 years supervised release, and downwardly departed to a zero dollar fine and
assigned a $100 special assessment. Gonzalez appealed, raising only one issue
on appeal: whether retaliation under Texas law is a crime of violence for the
purposes of U.S.S.G. § 2K2.1(a)(4).



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                                  No. 11-40881

      Gonzalez’s arrest and conviction for retaliation stemmed from an incident
in which Gonzalez, driving his car, followed the vehicle of a juror who had served
on the jury that convicted Gonzalez’s family member of murder. Gonzalez
followed the juror from the courthouse, up to the point at which the juror turned
into a convenience store parking lot. Gonzalez was arrested and charged with
retaliation. The indictment alleged that Gonzalez threatened harm to the juror
by failing to maintain proper following distance between his motor vehicle and
the juror’s motor vehicle, in violation of Texas Transportation Code § 545.062(a),
in retaliation for the juror’s service or status as a public servant. See Tex. Penal
Code. Ann. § 36.06(a). Gonzalez pleaded guilty to retaliation and was sentenced
to 3 years imprisonment.
                                        II.
      We review a district court’s interpretation of the Guidelines de novo and
its factual findings for clear error. United States v. Evans, 587 F.3d 667, 672 (5th
Cir. 2009). We review the sentence for “reasonableness” under the abuse-of-
discretion standard. United States v. Gall, 552 U.S. 38, 46 (2007); United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We apply the bifurcated
review process established in Gall to determine whether the sentence is
reasonable. First, we establish whether the district court committed “significant
procedural error.” Gall, 552 U.S. at 51. If the sentence was “procedurally sound,”
we then determine whether the sentence was substantively reasonable. Id.
Reversal is not warranted if the error is harmless. A procedural error is
harmless if “the error did not affect the district court’s selection of the sentence
imposed.” United States v. Delgado-Martinez, 564 F.3d 750, 752-53 (5th Cir.
2009) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)).
                                        III.
      In relevant part, the Texas retaliation statute provides that “[a] person
commits an offense if he intentionally or knowingly harms or threatens to harm

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                                   No. 11-40881

another by an unlawful act . . . in retaliation for or on account of the service or
status of another as a . . . public servant.” Tex. Penal Code. Ann. § 36.06(a).
“Harm” is defined as “anything reasonably regarded as a loss, disadvantage, or
injury, including harm to another person in whose welfare the person affected
is interested.” Tex. Penal Code Ann. § 1.07(a)(25).           The Texas statutory
definition of retaliation is not enumerated in U.S.S.G. § 4B1.2 cmt. 1 and does
not have “as an element the use, attempted use, or threatened use of physical
force.” United States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005) (quoting
18 U.S.C. § 924(e)(2)(B)(i)). Thus, a retaliation offense under Texas law
constitutes a crime of violence only if the record of it satisfies the residual clause
of § 4B1.2 Application Note 1. In other words, “the conduct set forth (i.e.,
expressly charged) [must] . . . by its nature . . . present[] a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2 cmt. 1; see also United States v.
Lipscomb, 619 F.3d 474, 477 (5th Cir. 2010). In the present case, the indictment
alleged that Gonzalez threatened to harm a juror by an unlawful
act—specifically, failing to maintain proper following distance between his car
and the juror’s car—in retaliation for the juror’s service or status as a public
servant.
      The government concedes that the district court committed error in
calculating Gonzalez’s base offense level according to the court’s erroneous
conclusion that Gonzalez’s retaliation conviction constituted a crime of violence.
The burden is on the government, as the party seeking to uphold the sentence,
to show that the error was harmless and need not be reversed. Delgado-
Martinez, 564 F.3d at 753. The government conceded that it could not meet that
burden and that the error affected the Guidelines calculations and the advisory
range of imprisonment. Consequently, Gonzalez’s prior conviction of retaliation
does not qualify as a violent felony for the purposes of U.S.S.G. § 2K2.1.
                                         IV.

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                              No. 11-40881

     For these reasons, the sentence is REVERSED and the case is
REMANDED for resentencing.




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