Opinion

United States v. Stevens

Court
Court of Appeals for the Fifth Circuit
Filed
Dec 21, 2022
Status
Unpublished
Nature of suit
Direct Criminal
Cited by
0 cases
Authority
More cited than 22.2%

The opinion

Case: 20-11264 Document: 00516586726 Page: 1 Date Filed: 12/21/2022

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

December 21, 2022

No. 20-11264 Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Henry Joseph Stevens,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:20-CR-24-1

Before Jones, Smith, and Graves, Circuit Judges.

Per Curiam:*

Henry Joseph Stevens appeals the 15-year sentence he received after

pleading guilty to one count of possession of a firearm by a convicted felon,

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 1 Stevens argues that the

district court plainly erred by concluding that his prior convictions qualified

*

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opinion should not be published and is not precedent except under the limited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.

1

Section 924(a)(2) has since been amended and recodified at § 924(a)(8).

Case: 20-11264 Document: 00516586726 Page: 2 Date Filed: 12/21/2022

No. 20-11264

him for an enhanced sentence under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e). We affirm.

For the first time on appeal, Stevens argues that he should not have

received the enhanced sentence because the Government failed to show that

he had three qualifying prior convictions. We review this unpreserved

argument under the plain-error standard. See Puckett v. United States,

556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009). If Stevens shows an error

that is clear or obvious and affects his substantial rights, then this court may

exercise its discretion to correct the error, but only if it “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. (internal

quotation and brackets omitted). The “burden of establishing entitlement to

relief for plain error” is on the party claiming it. United States v. Dominguez

Benitez, 542 U.S. 74, 82, 124 S. Ct. 2333, 2340 (2004).

The ACCA’s enhanced penalties apply to a defendant who has three

previous convictions “for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

In Wooden v. United States, the Supreme Court stated that offenses

“committed close in time, in an uninterrupted course of conduct, will often

count as part of one occasion; not so for offenses separated by substantial

gaps in time or significant intervening events.” 142 S. Ct. 1063, 1071 (2022).

The Court endorsed a multi-factor inquiry over the timing-focused approach

formerly applied by some lower courts, including the Fifth Circuit. Id. at

1068 (citing United States v. Fuller, 453 F.3d 274, 278–79 (5th Cir. 2006)).

Still, the Court recognized that offenses committed “a day or more apart, or

at a significant distance” are rightly treated “as occurring on separate

occasions.” Id. at 1071 (internal quotation omitted). When making this

2

Case: 20-11264 Document: 00516586726 Page: 3 Date Filed: 12/21/2022

No. 20-11264

determination, a court may examine only “Shepard 2-approved” material,

comprising “the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the

trial judge to which the defendant assented.” Fuller, 453 F.3d at 279 (internal

quotation omitted), abrogated on other grounds by Wooden, 142 S. Ct. at 1068

n.1.

In Stevens’s presentence report (PSR), the probation officer applied

the ACCA’s enhanced penalties due to Stevens’s three prior Texas

convictions for aggravated robbery with a deadly weapon, which occurred on

February 18, 2009; March 10, 2009; and March 11, 2009. The PSR included

Shepard-approved documents supporting the convictions. Stevens argues

that in light of Wooden, the government failed to carry its burden of

establishing that the March 10 and March 11 robberies occurred on separate

occasions because they could have occurred only minutes apart on either side

of midnight. 3

But we need not decide whether the district court erred, much less

clearly or obviously erred, because Stevens has not shown that any alleged

error affected his substantial rights. To satisfy the “substantial-rights”

prong, Stevens must demonstrate “a reasonable probability that, but for the

district court’s [error], he would have received a lesser sentence.” United

States v. Martinez-Rodriguez, 821 F.3d 659, 663–64 (5th Cir. 2016) (internal

quotation omitted). Here, Shepard-approved documents show that Stevens

also had a 1995 California felony conviction for inflicting corporal injury on a

2

Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).

3

Stevens briefly posits that his February 18th and March 10th robberies may have

been part of a common occasion, as they were both of the same victim and in the same

county. But even under Wooden, the lengthy gap between those offenses shows that they

occurred on separate occasions. See Wooden, 142 S. Ct. at 1071.

3

Case: 20-11264 Document: 00516586726 Page: 4 Date Filed: 12/21/2022

No. 20-11264

spouse, which qualifies for ACCA enhancement purposes. See United States

v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010); see also United States v.

Moore, 635 F.3d 774, 776 (5th Cir. 2011). Thus, even if the two March 2009

robberies constitute only one qualifying conviction under the ACCA, the

February 2009 robbery and the California conviction make up the other two

needed to justify the 15-year sentence. Accordingly, Stevens has not shown

reversible plain error. 4

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

4

Stevens also contends that the district court committed reversible plain error by

finding that his prior aggravated robbery convictions qualified as violent felonies under the

ACCA because the Texas offense of aggravated robbery may be committed by recklessly

inflicting injury. The supporting documents show that his prior aggravated robbery

convictions qualified as violent felonies. See United States v. Garrett, 24 F.4th 485, 489,

491 (5th Cir. 2022). He correctly concedes that this argument is foreclosed by Garrett, and

he raises it solely to preserve it for potential further review.

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.