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

                                                                FILED
                                                              February 15, 2008
                               No. 07-50380
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

ERIC JAMES DIXON

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                         USDC No. 6:06-CR-48-ALL


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.


PER CURIAM:*
     The district court granted Eric James Dixon’s request to represent himself
at his criminal trial on charges of possession of a firearm by a felon and
appointed stand-by counsel to assist Dixon. After a jury convicted Dixon, the
district court sentenced him to an 87-month term of imprisonment. Dixon is
represented by appointed counsel on appeal.



     *
      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should not be published and is not precedent except under the limited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. 07-50380

       Dixon argues that the trial court’s comments on his pro se performance
prejudiced the jury against him and caused his trial to be fundamentally unfair.
We conclude that Dixon preserved this argument for appellate review by
objecting to the court’s comments during a sidebar conference. Dixon also argues
that the trial court plainly erred at sentencing when it determined that his prior
Texas conviction for attempted deadly conduct was a crime of violence under
U.S.S.G. § 2K2.1(a)(4)(A).
       We review a defendant’s complaints about a trial judge’s conduct to
determine “not . . . whether the [] conduct left something to be desired or even
whether some comments would have been better left unsaid . . . [but to]
determine whether the judge’s behavior was so prejudicial that it denied [the
defendant] a fair, as opposed to a perfect, trial.” United States v. Williams, 809
F.2d 1072, 1086 (5th Cir. 1987) (quoting United States v. Pisani, 773 F.2d 397,
402 (2d Cir. 1985)). A federal judge may “comment on the evidence, . . . question
witnesses, . . . and may maintain the pace of the trial by interrupting or cutting
off counsel as a matter of discretion.” Id.
       All of the judicial comments that Dixon challenges on appeal were directed
to Dixon’s persistent attempts to argue to the jury issues that had been resolved
against him in pretrial motions. Dixon ignored the court’s repeated explanation
that Dixon could raise the issues for appeal, but that he could not present them
for the jury to consider at trial. Dixon does not suggest that he is entitled to
appellate relief based on any of the defense theories that he attempted to raise
at trial.
       The district court instructed the jury to base its verdict solely on the
evidence and not to construe the court’s comments as indicating any opinion as
to Dixon’s guilt or innocence. See United States v. Johnson, 127 F.3d 380, 388
(5th Cir. 1997); Williams, 809 F.2d at 1088. When viewed as a whole, the trial
court’s efforts to exclude a legally irrelevant defense theory were not an abuse



                                        2
                                   No. 07-50380

of discretion and did not cause the trial to be constitutionally unfair. See United
States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994); Williams, 809 F.2d at 1086.
      Because Dixon did not argue at sentencing that his prior conviction for
attempted deadly conduct is not a crime of violence under § 2K2.1(a)(4)(A), the
issue is reviewed for plain error. See United States v. Gonzales, 484 F.3d 712,
714 (5th Cir.), cert. denied, 127 S. Ct. 3031 (2007). Dixon must show that there
is a clear or obvious error that affects his substantial rights. See United States
v. Olano, 507 U.S. 725, 732 (1993).
      The Sentencing Guidelines provide that the base offense level for unlawful
possession of a firearm by a prohibited person is 14. U.S.S.G. § 2K2.1(a)(6). If
the offense “involved a firearm,” as did Dixon’s offense, the base offense level is
increased to 18. § 2K2.1(a)(5). The base level is increased to 20 if the defendant
has a prior conviction for a crime of violence. § 2K2.1(a)(4)(A). In relevant part,
a “crime of violence” is an offense or attempted offense punishable under federal
or state law by a term of imprisonment exceeding one year that either “(1) has
as an element the use attempted use, or threatened use of physical force against
the person of another, or (2) . . . involves conduct that presents a serious
potential risk of physical injury to another.” § 2K2.1, comment. (n.1); U.S.S.G.§
4B1.2(a)(1), (2) and comment. (n.1). To be considered a crime of violence under
§ 4B1.2(a)(2), the conduct presenting a serious potential risk of physical injury
to another must be expressly charged in the count of conviction. § 4B2.1,
comment. (n.1).
      A person commits the Texas offense of deadly conduct if he: “(a) . . .
recklessly engages in conduct that places another in imminent danger of serious
bodily injury [or] (b) . . . knowingly discharges a firearm at or in the direction of
. . . (1) one or more individuals; or (2) a habitation, building, or vehicle and is
reckless as to whether the habitation, building, or vehicle is occupied.”
TEX. PENAL CODE § 22.05. In the conviction at issue, Dixon was indicted for



                                         3
                                  No. 07-50380

aggravated assault, but he pleaded guilty to attempted deadly conduct pursuant
to a plea bargain.
      We disagree with the Government’s contention that United States v.
Dominguez, 479 F.3d 345, 348 (5th Cir.), cert. denied, 128 S. Ct. 61 (2007), and
United States v. Hernandez-Rodriguez, 467 F.3d 492 (5th Cir. 2006), cert. denied,
127 S. Ct. 1350 (2007) compel the conclusion that the Texas offense of deadly
conduct is a crime of violence. Dominguez is not relevant to the issue in this case
and Hernandez-Rodriguez dealt with a conviction under § 22.05(b)(1), which
prohibits the knowing discharge of a firearm at or in the direction of one or more
individuals.   See Hernandez-Rodriguez, 467 F.3d at 494; § 22.05(b)(1).
Hernandez-Rodriguez does not hold that a generic conviction under § 22.05 is a
crime of violence. Hernandez-Rodriguez, 467 F.3d at 494.
      We employ the categorical approach established in Taylor v. United States,
495 U.S. 575, 602 (1990) to determine whether a prior offense is a crime of
violence because it has as an element the use, attempted use or threatened use
of force or because it inherently presents a serious potential risk of physical
injury. Hernandez-Rodriguez, 467 F.3d at 494; United States v. Rodriguez-
Jaimes, 481 F.3d 283, 286 (5th Cir. 2007). If a statute contains multiple,
disjunctive subsections, we may consider other conclusive records made or used
in adjudicating guilt in order to determine which statutory subsection applies to
the defendant's conviction. Hernandez-Rodriguez, 467 F.3d at 494. It is not
possible from the documents available in this case to identify the specific
subsection of § 22.05 that Dixon was convicted of violating.
      We conclude that a generic conviction for violating § 22.05 is not a crime
of violence under § 4B1.2(a)(1) because that guideline requires “the use,
attempted use, or threatened use of physical force against the person of
another,” while § 22.05 (b)(2) prohibits the knowing discharge “of a firearm at or
in the direction of a habitation, building, or vehicle, with reckless disregard as
to whether the habitation, building, or vehicle is occupied.” § 22.05(b)(2);

                                        4
                                 No. 07-50380

§ 4B1.2(a)(1); see United States v. Alfaro, 408 F.3d 204, 206-09 (5th Cir. 2005);
see also Rodriguez-Jaimes, 481 F.3d at 286.
      Absent the crime of violence enhancement, Dixon’s base offense level
would have been 18 and the applicable sentencing guidelines range would have
been 57-to-71 months, § 2K2.1(a)(6); U.S.S.G., Sentencing Table, a range that
does not include the 87-month sentence Dixon received. Because the PSR does
not reveal any other prior convictions that would qualify as a crime of violence,
Dixon has shown clear or obvious error that affects his substantial rights.
Olano, 507 U.S. at 731-37.
      Accordingly, we AFFIRM Dixon’s conviction, VACATE his sentence, and
REMAND the case for resentencing.




                                       5
