United States v. Bowman ( 2022 )

Case: 21-40467 Document: 00516222044 Page: 1 Date Filed: 03/02/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 2, 2022
No. 21-40467
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Charles Jerome Bowman,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:19-CR-270-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Charles Jerome Bowman pleaded guilty to possessing a firearm after a
felony conviction and was sentenced to 210 months in prison with five years
of supervised release. On appeal, he argues that the district court erred in
sentencing him under 18 U.S.C. § 924(e), the Armed Career Criminal Act
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40467 Document: 00516222044 Page: 2 Date Filed: 03/02/2022
No. 21-40467
(ACCA), because his Texas convictions for simple robbery, aggravated
robbery, and aggravated assault do not qualify as ACCA predicates. Bowman
reasons that the statutes defining robbery and assault in Texas are indivisible,
meaning each creates a single crime, and that those crimes do not constitute
violent felonies under the ACCA because they can be committed through
mere recklessness.
Whether a prior conviction qualifies as an ACCA predicate is a
question this court generally reviews de novo. United States v. Massey, 858
F.3d 380, 382 (5th Cir. 2017). However, because Bowman’s argument on
appeal is new, review is for plain error. See United States v. Castaneda-Lozoya,
812 F.3d 457, 459 (5th Cir. 2016). To prevail under the plain-error standard,
Bowman must show (1) an error (2) that is clear or obvious and (3) that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). Should he do so, this court may correct the error if it seriously affects
the fairness, integrity or public reputation of judicial proceedings. Id. at 135.
Contrary to Bowman’s position, we recently held that the Texas
robbery statute, Tex. Penal Code § 29.02(a), is divisible. United States
v. Garrett, 24 F.4th 485, 491 (5th Cir. 2022). We have also held that the
Texas assault statute, Tex. Penal Code § 22.01(a), is divisible. United
States v. Torres, 923 F.3d 420, 425 (5th Cir. 2019). Because of this, and
because the record includes indictments and other relevant documents for
the prior convictions, we can apply the modified categorical approach to
identify the crimes for which Bowman was convicted. See Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016). Bowman does not dispute that both of
his convictions for simple robbery involved robbery-by-threat under
§ 29.02(a)(2), which qualifies as an ACCA predicate. See Garrett, 24 F.4th
at 491. Nor does he show that it would be a clear or obvious error to
characterize his conviction for aggravated assault as a violent felony. Thus,
Bowman fails to establish that the district court plainly erred in characterizing
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Case: 21-40467 Document: 00516222044 Page: 3 Date Filed: 03/02/2022
No. 21-40467
at least three of his prior convictions as ACCA predicates, which was
sufficient to support the enhancement. See § 924(e)(1).
AFFIRMED.
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