United States v. Don Shepherd
2017 U.S. App. LEXIS 2378
5th Cir.2017Background
- Defendant Don Jerome Shepherd pled guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1), 924(a)(2).
- Presentence Report (PSR) applied a total offense level of 25 based in part on two prior Texas convictions: delivery of a controlled substance (Tex. Health & Safety Code § 481.112(a)) and aggravated assault (Tex. Penal Code § 22.02(a)(2)).
- With Criminal History Category III the PSR produced a guidelines range of 70–87 months.
- Shepherd objected that the Texas delivery conviction was not a "controlled substance offense" for guideline purposes; the district court overruled the objection but stated it wished to “moot” the issue and imposed 46 months imprisonment (plus 3 years supervised release).
- Shepherd appealed, arguing (1) the delivery conviction was misclassified under the guidelines and (2) the aggravated-assault conviction was not a crime of violence under the guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd's Texas delivery conviction qualified as a "controlled substance offense" for U.S.S.G. § 2K2.1(a)(2) | Delivery conviction does not qualify as a controlled-substance offense and should reduce the guideline range | District court applied the enhancement; overruled objection but imposed 46 months to "moot" the issue | Harmless error: even if misclassified, sentence (46 months) equals bottom of correct range and court intended to moot objection, so no prejudice |
| Whether aggravated assault under Tex. Penal Code § 22.02(a)(2) is a "crime of violence" under U.S.S.G. § 4B1.2 | Aggravated-assault conviction does not meet the elements-based definition of crime of violence | Court classified the offense as a crime of violence; Shepherd did not object below | No plain error: identical ACCA/§4B1.2 analyses endorse that §22.02(a)(2) qualifies as a crime of violence |
Key Cases Cited
- 832 F.3d 569 United States v. Hinkle (5th Cir. 2016) (Texas delivery conviction is not a "controlled substance offense" under the Guidelines)
- 775 F.3d 706 United States v. Rodriguez-Rodriguez (5th Cir. 2015) (harmless-error principles for guideline calculation mistakes)
- 136 S. Ct. 1338 Molina-Martinez v. United States (2016) (explaining prejudice analysis when court states it would have imposed same sentence regardless of guideline range)
- 797 F.3d 346 United States v. Guzman (5th Cir. 2015) (holding Texas aggravated assault qualifies as having threatened use of force under identically worded ACCA provision)
- 489 F.3d 197 United States v. Guillen-Alvarez (5th Cir. 2007) (construing Tex. Penal Code §22.02(a)(2) as an enumerated aggravated-assault offense for guideline purposes)