Case: 16-10083 Document: 00513763790 Page: 1 Date Filed: 11/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10083 FILED
Summary Calendar November 17, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DILLON ALEX STEELE, also known as Dillon Steele,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CR-1-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Dillon Alex Steele appeals his 77-month career offender guideline
sentence for mailing a threatening communication in violation of 18 U.S.C.
§ 876(c). He argues that the career offender enhancement in U.S.S.G. § 4B1.1
does not apply because his offense of conviction is not a crime of violence under
U.S.S.G. § 4B1.2(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10083 Document: 00513763790 Page: 2 Date Filed: 11/17/2016
No. 16-10083
First, Steele contends, as he did in the district court, that even if § 876(c)
is narrowed under the modified categorical approach, his § 876(c) offense does
not involve the kind of violent force that § 4B1.2(a)(1) requires. We held
otherwise in United States v. Stoker, 706 F.3d 643, 648 & n.4 (5th Cir. 2013).
Steele fails to show on de novo review that the holding in Stoker violated our
rule of orderliness, see United States v. Traxler, 764 F.3d 486, 489 (5th Cir.
2014), or was dicta, see Stoker, 706 F.3d at 658 (explaining that the holding
affected the offense level under § 4B1.1(b)).
Steele raises additional arguments for the first time on appeal, which we
review for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494,
497-99 (5th Cir. 2012). He argues that § 876(c) is no longer amenable to
modified categorical analysis as it is not divisible, in light of Mathis v. United
States, 136 S. Ct. 2243 (2016), and that § 876(c) does not categorically satisfy
the force prong in § 4B1.2(a)(1). We decline to address the divisibility of
§ 876(c) after Mathis because, in any event, Steele fails to show that it is clear
or obvious that § 876(c) does not categorically satisfy § 4B1.2(a)(1). See United
States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011). Another circuit has held
that § 876(c) has the threatened use of physical force as an element. United
States v. Haileselassie, 668 F.3d 1033, 1035 (8th Cir. 2012) (interpreting 18
U.S.C. § 16). Because Steele does not show plain error in the application of
§ 4B1.2(a)(1), we do not address his claims that the residual clause in
§ 4B1.2(a)(2) is unconstitutionally vague and that it does not support the
career offender enhancement.
AFFIRMED.
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