United States v. Green ( 2023 )

Case: 22-10976 Document: 00516776232 Page: 1 Date Filed: 06/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10976
Summary Calendar FILED
____________ June 6, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Mark Andre Green,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CR-372-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Mark Andre Green appeals the sentence imposed following his guilty
plea conviction for possession of a firearm after a felony conviction. He
argues the district court erred in assigning an enhanced base offense level
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10976 Document: 00516776232 Page: 2 Date Filed: 06/06/2023
No. 22-10976
under U.S.S.G. § 2K2.1(a)(1) because his prior Texas conviction for
aggravated assault with a deadly weapon was not a crime of violence. 1
Relying on Borden v. United States, 141 S. Ct. 1817 (2021), Green
argues that the Texas aggravated assault offense may be committed recklessly
and, therefore, it is no longer a crime of violence under § 2K2.1(a)(1) and
U.S.S.G. § 4B1.2(a). Because he raised this argument in the district court,
our review is de novo. See United States v. Puga-Yanez, 829 F.3d 317, 319 (5th
Cir. 2016) (per curiam).
In Borden, the Supreme Court held that an offense with a mens rea of
recklessness cannot qualify as a violent felony under the elements clause of
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i). 141 S. Ct. at
1825. Borden, however, did not address recklessness in the context of
enumerated offenses. See id. We have previously held that Texas aggravated
assault is a crime of violence under the enumerated offense clause in U.S.S.G.
§ 2L1.2. United States v. Guillen-Alvarez, 489 F.3d 197, 200–01 (5th Cir.
2007). Indeed, the “crime of violence” definitions in § 2L1.2 and § 4B1.2
are construed consistently for enumerated offenses. United States v. Rayo-
Valdez, 302 F.3d 314, 318 (5th Cir. 2002). Because Guillen-Alvarez did not
define generic aggravated assault as requiring the use of force against another,
it was not affected by the Supreme Court’s decision in Borden. See Borden,
141 S. Ct. at 1825.
Green also argues that, in amending § 4B1.2’s definition of crime of
violence in 1989, the United States Sentencing Commission acted without
authority when it abandoned the definition of crime of violence in 18 U.S.C.
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1
Green characterizes his 2009 offense as aggravated assault by bodily injury.
However, the state court documents reflect that he was convicted of aggravated assault
with a deadly weapon.
2
Case: 22-10976 Document: 00516776232 Page: 3 Date Filed: 06/06/2023
No. 22-10976
§ 16, and he contends that the definition in the Guidelines is invalid to the
extent it deviates from § 16. Although Green argued in the district court that
his prior conviction was not a crime of violence in view of Borden, he did not
argue that the Sentencing Commission exceeded its authority when it
abandoned the definition of crime of violence in § 16(a). Therefore, our
review is limited to plain error. See United States v. Velasquez-Torrez, 609
F.3d 743, 746 (5th Cir. 2010) (per curiam). To prevail on plain error review,
Green must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error
but should do so only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citation omitted). “An error is not plain under current law if a
defendant’s theory requires the extension of precedent.” United States v.
Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (internal quotation marks and citation
omitted); see United States v. Cabello, 33 F.4th 281, 291 (5th Cir. 2022).
Green has not cited a decision of this court addressing this issue.
Because his argument would require the extension of precedent, he has not
shown that any error by the district court was clear or obvious. See Cabello,
33 F.4th at 291. Therefore, he has not established plain error. See Puckett,
556 U.S. at 135.
AFFIRMED.
3