Case: 20-60148 Document: 00515668050 Page: 1 Date Filed: 12/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020
No. 20-60148
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
David Steve Fields,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:18-CR-159-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
David Steve Fields appeals his conviction of possession of a firearm
by a convicted felon and his 199-month sentence under the Armed Career
Criminal Act (ACCA). He first challenges the denial of a motion to withdraw
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-60148 Document: 00515668050 Page: 2 Date Filed: 12/09/2020
No. 20-60148
his guilty plea, which we review for abuse of discretion. United States v.
McKnight, 570 F.3d 641, 645 (5th Cir. 2009).
According to Fields, several factors listed in United States v. Carr, 740
F.2d 339 (5th Cir. 1984), supported his motion. While we may agree that he
promptly filed the motion, we reject the contentions that he lacked close
assistance of counsel and that the plea was involuntary and unknowing. 1 See
Missouri v. Frye, 566 U.S. 134, 142 (2012); Blackledge v. Allison, 431 U.S. 63,
74 (1977); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). Fields’s
own testimony and signature on the plea agreement establish that, prior to
his guilty plea, counsel reviewed with him and answered his questions about
the indictment and the elements of the offense, the Government’s evidence,
the statutory maximum and mandatory minimum 15-year sentence, the terms
of the plea agreement and supplement, and the appeal waiver. Additionally,
as the district court noted in finding that Fields had the close assistance of
able counsel, the attorney negotiated a second plea deal and filed several
motions on Fields’s behalf. The plea colloquy shows that Fields understood
the sentencing range he faced, was fully satisfied with counsel’s
representation, and pleaded guilty of his own free will because he was guilty.
We find no abuse of discretion in the denial of the motion to withdraw his
guilty plea. See McKnight, 570 F.3d at 645; United States v. Bounds, 943 F.2d
541, 543 (5th Cir. 1991).
Next, Fields contends that the district court improperly relied on the
presentence report (PSR) to apply the ACCA and erroneously determined
that his prior Florida aggravated assault convictions qualified as predicates
for the enhancement. The Government contends that the broad appeal
1
We do not consider arguments challenging the voluntariness of the plea raised for
the first time in Fields’s reply brief. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th
Cir. 2005).
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No. 20-60148
waiver bars consideration of these arguments. Fields replies that he can
challenge the ACCA enhancement notwithstanding the appeal waiver
because the resulting sentence exceeded the statutory maximum of 10 years
under 18 U.S.C. § 924(a)(2). We agree. See United States v. Leal, 933 F.3d
426, 430-31 (5th Cir.), cert. denied, 140 S. Ct. 628 (2019); United States v.
Barnes, 953 F.3d 383, 388-89 & n.10 (5th Cir.), cert. denied, 2020 WL 5883752
(U.S. Oct. 5, 2020); United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005).
With respect to his objection to the district court’s reliance on the
PSR to find that his prior offenses were ACCA predicates, Fields does not
dispute the existence of the convictions but their characterization as violent
felonies. We review the preserved objection de novo. See United States v.
Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005). Fields does not
assert that it was necessary to apply the modified categorical approach to
narrow the offense of conviction before determining that any of his prior
offenses were violent felonies. In other words, he does not contend that the
statutes of conviction were divisible with alternative elements that made it
necessary to consult the documents approved in Shepard v. United States, 544
U.S. 13, 16 (2005). See Descamps v. United States, 570 U.S. 254, 257 (2013);
United States v. Rosa, 507 F.3d 142, 151 (5th Cir. 2007). He thus fails to show
error by the district court, which can determine whether a prior offense is a
violent felony under the categorical approach based on the fact of the prior
convictions and the statutory definitions of the offenses. See Rosa, 507 F.3d
at 151.
According to Fields, Florida aggravated assault is not a violent felony
under the ACCA’s force clause, 18 U.S.C. § 924(e)(2)(B)(i), because a
conviction can be obtained upon proof of recklessness or culpable negligence
and the force clause requires an intentional act. Plain error review applies to
this issue as no objection on these grounds was lodged in the district court.
See United States v. Davis, 487 F.3d 282, 284 (5th Cir. 2007). We find no
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error, plain or otherwise, because the use of force requirement in
§ 924(e)(2)(B)(i) is satisfied by a mens rea of recklessness, United States v.
Vickers, 967 F.3d 480, 485-86 (5th Cir. 2020), and culpable negligence under
Florida law is “a mental state equivalent to at least recklessness,” United
States v. Chan-Gutierrez, 368 F. App’x 536, 538 (5th Cir. 2010) (citing
Charlton v. Wainwright, 588 F.2d 162, 164 (5th Cir. 1979)). We do not
consider the argument raised for the first time in Fields’s reply brief that the
threat of violence punishable under the Florida statute includes conduct that
does not involve physical force. See Jackson, 426 F.3d at 304 n.2.
To the extent Fields also contends that his prior aggravated battery
offense is not a violent felony, he offers no authority for the contention. “It
is not enough to merely mention or allude to a legal theory.” United States v.
Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (internal quotation marks and
citation omitted). “A party that asserts an argument on appeal, but fails to
adequately brief it, is deemed to have waived it.” Id. (internal quotation
marks and citation omitted).
Finally, to the extent Fields attempts to assert a freestanding claim
that his trial counsel was ineffective for advising him to accept the plea
agreement (separate from his arguments about the denial of the motion to
withdraw his plea), we decline to consider the issue without prejudice to
Fields raising it on collateral review. See United States v. Isgar, 739 F.3d 829,
841 (5th Cir. 2014).
AFFIRMED.
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