USA v. Joshua Bodine
UNPUBLISHED OPINION FILED. [12-40365 Affirmed ] Judge: EHJ , Judge: JLD , Judge: CH Mandate pull date is 04/29/2013 for Appellant Joshua Mark Bodine; denying motion for summary affirmance filed by Appellee USA [7232447-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [7232447-3] [12-40365]
Date Filed: 04/08/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 8, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSHUA MARK BODINE, also known as Desperado,
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:11-CR-37-1
Before JONES, DENNIS, and HAYNES, Circuit Judges.
Joshua Mark Bodine appeals from his conviction by guilty plea of assault
with a dangerous weapon in aid of racketeering activity. Bodine contends that
the district court erroneously participated in plea discussions by consulting with
the parties over a provision in the plea agreement requiring that the
Government would make a recommendation for “camp” classification in the
Bureau of Prisons. That provision was removed from the agreement before
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 04/08/2013
Bodine pleaded guilty. He also contends that there was not an adequate factual
basis on the record to support his guilty plea.
Bodine did not raise his contentions in the district court. His contentions
therefore are reviewed for plain error. See United States v. Vonn, 535 U.S. 55,
In order to prevail on appeal as to his plea discussion claim, Bodine “must
show a reasonable probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Whether
the classification recommendation was meant to bind only the Government or
both the Government and the district court, Bodine cannot demonstrate
prejudice sufficient to constitute reversible plain error. Pursuant to the policies
of the Bureau of Prisons, Bodine, a member of the Aryan Brotherhood of Texas
(ABT), would have been placed in a high security facility regardless of any
judicial recommendation for a lower security classification. Bodine cannot show
any reasonable probability that he would not have pleaded guilty had the district
court simply rejected the plea agreement and given him the opportunity to
withdraw his plea instead of counseling the parties to remove the classification
recommendation provision. See FED . R. CRIM. P. 11(c)(1), (c)(1)(A), (c)(1)(c);
Dominguez Benitez, 542 U.S. at 83.
The factual basis indicated that Bodine, a major in the ABT, ordered John
Manning to locate, subdue, and restrain Matthew Fails by force because Fails
owed Bodine money and had disrespected Bodine. Manning located Fails and
attempted to restrain and abduct him. Manning shot Fails during a struggle.
Pursuant to 18 U.S.C. § 2(b), Bodine could be convicted as a principal because
Manning assaulted Fails with a dangerous weapon while carrying out Bodine’s
order. The use of a firearm was a probable consequence of the order Bodine gave
Manning. See United States v. Vaden, 912 F.2d 780, 783 (5th Cir. 1990). The
factual basis was sufficient to support Bodine’s conviction.
Date Filed: 04/08/2013
The Government moves for summary affirmance or, in the alternative, for
an extension of time in which to file a brief. Summary disposition is appropriate
in cases “where time is truly of the essence” or where “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where . . . the appeal is frivolous.”
Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Bodine’s case can be resolved without further briefing, but summary affirmance
is not appropriate. See United States v. Holy Land Found. for Relief & Dev.,
445 F.3d 771, 781 (5th Cir. 2006). The Government’s motion for summary
affirmance or, in the alternative, for an extension of time, is denied.
AFFIRMED. MOTION DENIED.
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