USA v. Walter Nixon, Jr.

Filing

UNPUBLISHED OPINION FILED. [16-10219 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 02/15/2017 for Appellant Walter Earl Nixon Jr. [16-10219]

Case: 16-10219

Document: 00513848750

Page: 1

Date Filed: 01/25/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10219
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 25, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WALTER EARL NIXON, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-137-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Walter Earl Nixon, Jr., appeals the 120-month sentence imposed after
he pleaded guilty to being a felon in possession of a firearm. Nixon argues that
in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the district court
erred in applying the enhanced base offense level under U.S.S.G. § 2K2.1(a)(3)
based on his prior Texas conviction for burglary of a habitation because

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10219

Document: 00513848750

Page: 2

Date Filed: 01/25/2017

No. 16-10219
(1) Texas Penal Code § 30.02(a) is not a divisible statute and (2) not every
violation of § 30.02(a) qualifies as a crime of violence.
Because Nixon did not object in the district court to the calculation of his
offense level, we review for plain error. Under plain error review, Nixon has
the burden of showing a forfeited error that is clear or obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, we have the discretion to correct the error if it seriously affects
the integrity, fairness, or public reputation of the judicial proceedings. See id.
Even if Nixon could establish that the district court committed clear or
obvious error in determining that his prior Texas conviction was a crime of
violence for purposes of § 2K2.1, he cannot show “a reasonable probability that,
but for the error, the outcome of the proceeding would have been different,”
and, as such, he cannot show an effect on his substantial rights. See MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016). In particular, the
district court initially announced a sentence of 160 months in prison based on
the seriousness of the offense, Nixon’s extensive criminal history, and
additional 18 U.S.C. § 3553(a) factors. After Nixon’s counsel reminded the
court that the statutory maximum sentence was 120 months, the district court
imposed that sentence and repeatedly expressed its disappointment that it
could not impose the much higher sentence, which, in its opinion, was the
appropriate sentence. Thus, the record reflects that the sentence was based
“on factors independent of the Guidelines.” See Molina-Martinez, 136 S. Ct. at
1347. Because Nixon cannot satisfy all elements of plain error review, the
judgment of the district court is AFFIRMED.

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