Case Information
*1 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-mоnth term of imprisonment. Dixon is represented by appointed counsel on appeal.
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 commеnts 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
,
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 beеn 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 cоurt instructed the jury to base its verdict solely on the
evidence and not to construe the court’s comments as indicating any oрinion as
to Dixon’s guilt or innocence.
See United States v. Johnson
,
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
,
The Sentenсing 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 exсeeding one year that either “(1) has as an element the use attempted use, or threatened use of physical forсe against the person of another, or (2) . . . involves conduct that presents a serious potential risk of physical injury to аnother.” § 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 а 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, оr vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.” T EX . P ENAL C ODE § 22.05. In the conviction at issue, Dixon was indicted for 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
,
We employ the categorical approach established in
Taylor v. United States
,
We conclude that a generic conviction for violating § 22.05 is not a crime
of violenсe 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 vehiсle, with reckless disregard as
to whether the habitation, building, or vehicle is occupied.” § 22.05(b)(2);
§ 4B1.2(a)(1);
see United States v. Alfaro
,
Absent the crime of violence еnhancement, 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 clеar or obvious error that affects his substantial rights.
Olano
,
Accordingly, we AFFIRM Dixon’s conviction, VACATE his sentence, and REMAND the case for resentеncing.
Notes
[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.