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opinion should not be published and is not precedent except under the limited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