UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20753
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEE WILLIAMS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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August 19, 1997
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this challenge to both a conviction based on a guilty plea
and the ensuing sentence enhanced under 18 U.S.C. § 924(e) (for
defendants convicted of certain offenses involving firearms who
have three prior qualifying felony convictions), the principal
issue is whether one of the enhancement felony convictions
(enticing and inviting child into house to commit sodomy) is a
requisite “violent felony”. We AFFIRM.
I.
Johnny Lee Williams was arrested for violation of the
conditions of his state parole, namely contacting children at an
elementary school, after having been convicted of sex offenses with
children. At his arrest, officers searched his residence and found
two firearms.
Williams pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and to being in
possession of a rifle of length less than 26 inches which was not
registered to him, in violation of 26 U.S.C. § 5861(d). During the
plea colloquy, the district court advised Williams that he faced a
maximum sentence of ten years for each of the two charges. The
court also advised him that, under § 924(e), if he were found to
have three prior violent felony convictions, he could receive a
mandatory minimum of 15 years. But, the court failed to advise him
that the applicable maximum would be life imprisonment.
At sentencing, Williams contended that one of the prior felony
convictions relied on by the Government to trigger § 924(e) was not
a “violent felony”. That offense was a state conviction under
former 1925 TEX. CRIM. STAT. 535(b) for enticing and inviting, with
lascivious intent, a child under the age of 14 to enter a house for
the purpose of committing an act of sodomy. After supplemental
briefing, the court ruled that the felony was violent because,
pursuant to § 924(e)(2)(B)(ii), it involved “conduct that presents
a serious potential risk of physical injury to another”. (Emphasis
added.)
Williams was sentenced, inter alia, to 210 months imprisonment
on one count and 120 months on the other, with the sentences to run
concurrently, including with the state time he was serving.
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II.
A.
Williams’ contention that the district court committed
reversible error under FED. R. CRIM. P. 11 in not informing him of
the possibility of a life sentence is unavailing. The court told
him that he faced a 15-year mandatory minimum sentence, and he
received a sentence less than the potential 20-year maximum related
to him by the court (ten years for each of the two charges).*
The error was harmless. Rule 11 harmless error analysis
requires us to examine
whether the defendant’s knowledge and
comprehension of the full and correct
information would have been likely to affect
his willingness to plead guilty. Stated
another way, we “examine the facts and
circumstances of the ... case to see if the
district court’s flawed compliance with ...
Rule 11 ... may reasonably be viewed as having
been a material factor affecting [defendant]’s
decision to plead guilty”.
United States v. Bond, 87 F.3d 695, 702 (5th Cir. 1996)(quoting,
United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993)(en
banc)(quoting, United States v. Bachynsky, 934 F.2d 1349, 1360 (5th
Cir.)(en banc) cert. denied, 502 U.S. 951 (1991)). For starters,
*
At oral argument, Williams contended, for the first time
on appeal, that the district court’s statements as to a ten-year
maximum for each of the two charges potentially caused Williams to
understand that the maximum imprisonment he faced was only ten, not
20, years. No authority need be cited for our rule that,
generally, we do not consider issues presented at oral argument for
the first time. In any event, the record does not support this
contention. Moreover, in the light of the fact that Williams was
told he faced a possible minimum 15-year term if his sentence was
enhanced under § 924(e), he could hardly have thought he only faced
a ten-year maximum.
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Williams does not claim that he would have pled differently had he
been informed of the applicable maximum. See Bond, 87 F.3d at 702.
Furthermore, the instance of a defendant being sentenced to
less than what he was informed was his maximum penalty is “a
prototypical case of harmless error”. United States v. Pierce, 5
F.3d 791, 793 (5th Cir. 1993). Pierce was informed that his
maximum prison term was 18 years, when in fact it was 38 years. He
was sentenced to six years, and therefore could not show that he
was harmed by not being informed of the possible 38-year maximum.
There are no meaningful distinctions between Pierce and this
case. Williams was told that the maximum he could receive was two
ten-year sentences. He was sentenced to 210 months, or 17.5 years,
less than the 20 year maximum of which he was informed.
B.
Williams next raises, for the first time on appeal, a
constitutional challenge to § 922(g)(1) (felon in possession of
firearm). We review such belated challenges only for plain error.
E.g., United States v. Spires, 79 F.3d 464, 465-66 (5th Cir. 1996).
Williams acknowledged at oral argument that this point is
presented solely to preserve it for possible Supreme Court review.
In any event, there was no error; the challenged statute has been
upheld by the Supreme Court, and this court. See United States v.
Dickey, 102 F.3d 157, 163 (5th Cir. 1996)(“we are bound by the
Supreme Court’s decision in Scarborough v. United States, 431 U.S.
563, 575 (1977), that the felon in possession of a firearm statute
is constitutional under the Commerce Clause”).
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C.
Finally, Williams contends that his above-referenced state
felony conviction for enticing a child for the purpose of sodomy
was not a “violent felony” in that, contrary to § 924(e)(2)(B)(ii),
it did not involve “conduct that present[ed] a serious potential
risk of physical injury to another”. We review such a contention
de novo. E.g., United States v. Martinez-Cortez, 988 F.2d 1408,
1410 (5th Cir.), cert. denied, 510 U.S. 1013 (1993). And, in doing
so, we generally do not look to the specific facts underlying the
conviction. Section “924(e)(2)(b)(ii) ..., like the rest of the
enhancement statute, ... generally requires the ... court to look
only to the fact of conviction and the statutory definition of the
prior offense.” Taylor v. United States, 495 U.S. 575, 602 (1990).
No actual force is required for the state statute to be
violated. Nevertheless, the conduct presents the type of threat
envisioned by § 924(e). That section includes as violent felonies
not just those which involve the actual use of force, but, as
quoted above, also those which involve “conduct that presents a
serious potential risk of physical injury to another”. 18 U.S.C.
§ 924(e)(2)(B)(ii) (emphasis added). This risk to another is
inherent in Williams’ prior felony conviction, regardless of the
fact that he never actually had to have contact with the child, or
even be alone with the child, to violate the state criminal
statute.
The former 1925 TEX. CRIM. STAT. 535(b) made it a crime, inter
alia, “for any person with lascivious intent to entice, allure,
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persuade, or invite, or attempt to entice, allure, persuade or
invite, any child under fourteen (14) years of age to enter any
vehicle, room, house, office or other place for the purpose of
proposing” sodomy or other specified sexual acts, “or for the
purpose of committing an aggravated assault on such child”. It
thus contemplated a situation in which, for example, an adult
attempts to lure the child into his home.
As noted, Williams’ conviction was under the for-purpose-of-
sodomy element. As the district court stated, “[g]iven the tender
age of the victims described in the statute, given the nature and
probability that such a victim, if sodomy were attempted against
him, would attempt to avoid being sodomized, and given the fact
that many forms of sodomy by their nature are assaultive because
they constitute batteries, that is, physical contact without the
consent of another person, that is, offensive physical conduct”,
the offense proscribed by the Texas statute is “violent”.
Furthermore, our court has noted that the sodomy need not be
in progress to put the child in danger: “when an older person
attempts to sexually touch a child under the age of fourteen, there
is always a substantial risk that physical force will be used to
ensure the child’s compliance”. United States v. Velazquez-Overa,
100 F.3d 418, 422 (5th Cir. 1996) (quoting United States v. Reyes-
Castro, 13 F.3d 377, 379 (10th Cir. 1993)(emphasis added, internal
quotation marks omitted)). Velazquez-Overa addressed attempted
sodomy; its language, however, is equally applicable where, as
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here, the attempt is made through invitation or enticement, as
further discussed below.
In short, the Texas statute under which Williams was convicted
concerns potential, if not immediate, risk of physical injury to
children as a direct result of attempts to entice them to, inter
alia, sexual acts. In that respect, the dangers recognized in
Velazquez-Overa are present.
The cases cited by Williams are inapposite. He points in
particular to United States v. Martinez, 954 F.2d 1050 (5th Cir.
1992), and United States v. Dolt, 27 F.3d 235 (6th Cir. 1994).
In Martinez, our court held that a prior conviction for
attempted burglary did not constitute a violent felony. We stated
that attempted burglary differed from burglary (one of the violent
felonies listed in § 924(e)(2)(B)(ii)) in that, for the former, it
was possible that the felon never came close to perpetrating the
substantive crime. Because he never had to enter a building or
habitation, he would not come into contact with occupants, and the
potential for physical injury was therefore lessened. Martinez,
954 F.2d at 1053-54.
Unlike an attempted burglary, which may be committed miles
from the targeted premises and the persons in it, the former 1925
TEX. CRIM. STAT. 535(b) requires interaction with the victim
(“entice, allure, persuade, or invite”). In the light of the
intended victim’s youth, there is a significant likelihood that the
perpetrator would succeed in enticing the victim into a situation
that would produce violence. In other words, Williams’ state crime
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is an actual, not an attempted, act — enticing, alluring,
persuading or inviting. Inviting and enticing a minor to a house,
or other place, to commit sodomy, or the other listed acts, falls
within the definition of a “violent felony”.
United States v. Dolt held that the state offense of
solicitation of a controlled substance offense does not constitute
an actual controlled substance offense for purposes of Sentencing
Guideline § 4B1.1. Dolt deals with the definition of a controlled
substance offense. Such a category is obviously different from
that at issue. Furthermore, controlled substance offenses are of
a particular type, involving very similar types of transactions.
“Violent felonies”, on the other hand, is a deliberately broad
classification of offenses, intended to encompass many different
types of actions which, inter alia, “ present[] a serious potential
risk of physical injury to another”. 18 U.S.C. § 924(e)(2)(B)(ii).
Under the Texas statute, the solicitation is a substantive
offense. In sum, as proscribed by former 1925 TEX. CRIM. STAT.
535(b), “for any person with lascivious intent to entice, allure,
persuade, or invite” a child under age 14 for the purpose of
committing sodomy, or the other listed acts, is a scenario that, as
described in 18 U.S.C. § 924(e)(2)(B)(11), “involves conduct that
presents a serious potential risk of physical injury to another”.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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