USA v. Keavy Harris


UNPUBLISHED OPINION FILED. [10-40112 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 11/12/2010 for Appellant Keavy Harris [10-40112]

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USA v. Keavy HarrisCase: 10-40112 Document: 00511271880 Page: 1 Date Filed: 10/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-40112 S u m m a r y Calendar October 22, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. K E A V Y HARRIS, D e fe n d a n t - Appellant A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:08-CR-60-4 B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* K e a v y Harris appeals his within-guidelines sentence of 360 months' im p r is o n m e n t imposed following his guilty-plea conviction for conspiracy to d is t r ib u t e , and possess with intent to distribute, cocaine and marijuana. Harris' c r im in a l history category included one point for a Mississippi municipal-court c o n v ic t io n for bond jumping, an act for which he was fined $250. Harris c o n t e n d s the district court misapplied the advisory Sentencing Guidelines, by a d d in g one point to his criminal history for his bond-jumping conviction, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-40112 Document: 00511271880 Page: 2 Date Filed: 10/22/2010 No. 10-40112 b e c a u s e : that conviction was merely a civil contempt order, and the offense of b o n d -ju m p in g is similar to the offense of contempt of court not counted under G u id e lin e 4A1.2(c)(1). Although Harris challenged the additional criminal-history point in d is t r ic t court, he did so on grounds different from those raised on appeal. Accordingly, the criminal-history calculation is reviewed only for plain error. U n it e d States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); FED. R. CRIM. P. 5 2 (b ). To succeed under such review, Harris must show, inter alia, a clear or o b v io u s error affecting his substantial rights. Puckett v. United States, 129 S. C t . 1423, 1429 (2009). H a r r is maintains: because the presentence investigation report did not in d ic a te the statute upon which his bond-jumping conviction was based, it was m e r e ly a civil contempt order in which a noncriminal fine was imposed. This is a question of fact that could have been resolved if raised in district court. Such q u e s t io n s of fact "can never constitute plain error". United States v. Vital, 68 F .3 d 114, 119 (5th Cir. 1995) (internal quotations and citation omitted). I n the alternative, Harris asserts his bond-jumping offense, not listed as a n excludable offense, is similar to the offense of contempt of court excluded from t h e criminal-history calculation under Guideline 4A1.2(c)(1). Such excludable o ffe n s e s , and offenses similar to them, are counted only if: (1) the sentence was a term of probation of more than one year, or a term of imprisonment of at least 3 0 days, or (2) the prior offense is similar to the instant offense (here, conspiracy a n d intent to posses and distribute). U.S.S.G. 4A1.2(c)(1)(A)-(B). Because H a r r is was assessed only a fine for his bond-jumping offense, he maintains it is n o t counted in the criminal history. I n determining whether an unlisted offense is similar to a listede x c lu d a b le offense, our court uses a common-sense approach which "relies on all p o s s ib l e factors of similarity". United States v. Lamm, 392 F.3d 130, 132 (5th C ir . 2004) (internal quotations omitted). The factors to consider include: a 2 Case: 10-40112 Document: 00511271880 Page: 3 Date Filed: 10/22/2010 No. 10-40112 c o m p a r is o n of punishments imposed, the seriousness of each offense, the e le m e n t s of each offense, the level of culpability involved, and the likelihood of r e c u r r in g criminal conduct. Id.; see also United States v. Hardeman, 933 F.2d 2 7 8 , 281 (5th Cir. 1991). A p p ly in g this common-sense approach, these offenses are not similar. The p u n is h m e n t for bond jumping is more severe: bond jumping includes punishment of up to one year in prison, while contempt of court is punishable up t o only six months' imprisonment. As such, bond jumping is a more serious o ffe n s e . Further, the offense of bond jumping requires an additional element of r e le a s e on bond, making a bond jumper more culpable than someone in contempt o f court. Even assuming Harris has shown the district court erred in calculating his c r im in a l history, he has not shown a plain (clear or obvious) error. An error is c le a r or obvious only if it is clear under existing law. United States v. Salinas, 4 8 0 F.3d 750, 756 (5th Cir. 2007). There is no existing law supporting Harris' a s s e r t io n s . AFFIRMED. 3

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