United States v. McCalley , 126 F. App'x 180 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 28, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-10635
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES LEON McCALLEY,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:03-CR-319-ALL-H
_________________________________________________________________
Before REAVLEY, JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
James Leon McCalley appeals his sentence imposed after his
guilty plea conviction as a felon in possession of a firearm.
Specifically, he contends that the district court erred in
characterizing his prior conviction for indecency with a child as
a “crime of violence” for purposes of a sentencing enhancement
under U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a)(2). He also argues
that the enhancement of his sentence, under a mandatory Guidelines
regime, based on facts neither admitted by him nor found by a jury
violated his Sixth Amendment rights under United States v. Booker,
*
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this opinion should not be published and is not precedent except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.
U.S. , 125 S. Ct. 738 (2005). We affirm McCalley’s sentence
because we hold that his prior conviction for indecency with a
child was a “crime of violence.” Furthermore, we reject his Booker
claim because he cannot show that there is a reasonable probability
that he would have received a lesser sentence under an advisory
Guidelines regime.
I
McCalley’s sentence was calculated under U.S.S.G. §
2K2.1(a)(4)(A), which provides for a base offense level of 20 “if
the defendant committed any part of the instant offense subsequent
to sustaining one felony conviction of either a crime of violence
or a controlled substance offense[.]” The applicable definition of
“crime of violence” is found in U.S.S.G. § 4B1.2(a), which states
that a crime of violence is an offense punishable by imprisonment
for at least one year and
has as an element the use, attempted use, or
threatened use of physical force against the
person of another, or is burglary of a
dwelling, arson or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
Because the crime of indecency with a child under Texas Penal Code
§ 21.11(a)(1) does not have the use, attempted use, or threatened
use of physical force as an element, whether McCalley’s prior
conviction is a crime of violence depends on whether it “presents
a serious potential risk of physical injury to another.”
2
To answer this question, we take a categorical approach,
examining the conduct as alleged in the indictment.** United States
v. Serna, 309 F.3d 859, 862 (5th Cir. 2002). The indictment for
McCalley’s conviction alleged that he sexually touched a child
younger than fourteen years.
In United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th
Cir. 1996), we noted that “when an older person attempts to
sexually touch a child under the age of fourteen, there is always
a substantial risk that physical force will be used to ensure the
child’s compliance.” Velazquez-Overa concerned the definition of
crime of violence as provided in 18 U.S.C. § 16, which asks whether
the prior conviction presented a “substantial risk that physical
force against the person or property will be used[.]” In United
States v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997), we held that “in
situations in which there is a substantial risk that physical force
will be used, a serious potential risk of physical injury may also
exist.” It is therefore clear that when an adult sexually touches
a child younger than fourteen years there is a serious potential
risk of physical injury. We therefore reject McCalley’s arguments
to the contrary.
**
McCalley argues that the district court erred by failing to
apply this categorical approach. Specifically, he contends that
the district court looked to facts in the PSR to determine whether
his prior conviction was a crime of violence. The district court
noted that it reviewed the PSR, but it did not indicate that it
based its determination that the prior conviction was for a crime
of violence on facts other than those alleged in the indictment.
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II
Next, we address McCalley’s Sixth Amendment argument that the
district court erred by characterizing the nature of his prior
conviction and enhancing his sentence on the basis of that
characterization under a mandatory Guidelines regime. Because he
failed to object on these grounds at sentencing, our review is for
plain error.
We first observe that it is not clear whether the district
court’s characterization of McCalley’s prior conviction was a
violation of his Sixth Amendment rights. We have held that under
Apprendi v. New Jersey, 530 U.S. 466 (2000), there is no Sixth
Amendment violation where a district court considers the nature of
a prior conviction itself instead of presenting that question to
the jury. United States v. Stone, 306 F.3d 241, 243 (5th Cir.
2002). The Supreme Court, however, has recently cast some doubt on
this holding in Shepard v. United States, ___ S.Ct. ___, 2005 WL
516494 (2005) (noting that “[w]hile the disputed fact here can be
described as a fact about a prior conviction, it is too far removed
from the conclusive significance of a prior judicial record, and
too much like the findings subject to” Apprendi). We need not
determine the impact of Shepard because McCalley cannot show the
necessary prejudice to succeed under plain error review.
To satisfy the third prong of the plain error analysis, a
defendant presenting a claim of error under Booker must demonstrate
a reasonable probability that the district court would have imposed
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a lesser sentence if it had been aware of its discretion to do so.
United States v. Mares, ___ F.3d ___, 2005 WL 503715 (5th Cir.
2005). McCalley does not make such a showing. Therefore, he
cannot satisfy the third prong of the plain error test.
III
In sum, we hold that the district court did not err in
determining that, based on the facts alleged in the indictment,
McCalley’s prior conviction for indecency with a child was a “crime
of violence” for purposes of U.S.S.G. § 4B1.2. We also hold that
the district court did not commit plain error by enhancing
McCalley’s sentence based on its determination of the nature of
McCalley’s prior conviction or by sentencing him under a mandatory
Guidelines regime. Therefore, the sentence imposed in the district
court is
AFFIRMED.
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