Case: 20-10803 Document: 00515905394 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 18, 2021
No. 20-10803
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
D'Arde Lee Williams,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-18-1
Before Haynes, Willett, and Wilson, Circuit Judges.
Per Curiam:*
D’Arde Lee Williams appeals the 30-month prison term and one-year
term of supervised release imposed on his guilty plea conviction for escaping
from federal custody. See 18 U.S.C. § 751(a). We affirm.
*
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opinion should not be published and is not precedent except under the limited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: 20-10803 Document: 00515905394 Page: 2 Date Filed: 06/18/2021
No. 20-10803
Reviewing for plain error,1 we reject the contention that Williams was
entitled to a reduction of his base offense level under U.S.S.G. § 2P1.1(b)(3),
which establishes a four-level reduction for a defendant who is under arrest
on a felony charge or in custody for any conviction and who escapes from the
nonsecure custody of a community corrections center, a community
treatment center, a halfway house, or a like facility without returning
voluntarily within 96 hours, provided he commits no other felony while
escaped. United States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010); United
States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). Under the plain
error standard’s first three prongs, the defendant must show (1) a forfeited
error (2) that is clear or obvious, i.e., not “subject to reasonable dispute,”
and (3) that affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009); see United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.
2009). Thereafter, remedying the error is a matter of judicial discretion.
Puckett, 556 U.S. at 135.
Williams fails in his attempt to show that he was in the custody of a
halfway house when he escaped and is thus entitled to the offense level
reduction. At best, the record shows that the claim is subject to reasonable
dispute. See Puckett, 556 U.S. at 135; Ellis, 564 F.3d at 377-78. The factual
resume states variously that at the moment of his escape, Williams was
confined in a halfway house in Houston, was in custody at a federal prison in
Colorado, was assigned to but not yet at the Houston halfway house, and
1
The Government argues that the proper standard is “invited error” due to the
fact that Williams’s counsel affirmatively stated to the court that the § 2P1.1(b)(3)
reduction at issue here was not in play. See United States v. Baytank (Houston), Inc., 934
F.2d 599, 606 (5th Cir. 1991) (“A party generally may not invite error and then complain
thereof.”). However, because Williams fails even under plain error, out of an “abundance
of caution,” we will examine under plain error review. United States v. Fernandez-Cusco,
447 F.3d 382, 384 (5th Cir. 2006)
2
Case: 20-10803 Document: 00515905394 Page: 3 Date Filed: 06/18/2021
No. 20-10803
escaped from neither the prison nor the halfway house but from a bus station
in Lubbock. These ambiguities alone are a basis for reasonable debate about
whether he was in nonsecure custody and thus entitled to the § 2P1.1(b)(3)
reduction. The reasonableness of the debate is not diminished by the novel
notions Williams advances that he could not be adjudged guilty unless his
escape was from the halfway house and that the grand jury’s choice of words
in the indictment dictates the sentencing determination. See United States v.
Trejo, 610 F.3d 308, 319 (5th Cir. 2010); United States v Gluck, 143 F.3d 174,
178 (5th Cir. 1998); United States v. Taylor, 933 F.2d 307, 309 (5th Cir. 1991).
Further, even if we reached the third prong of plain error review, we
would conclude any error did not affect his substantial rights given the
district court’s statement that the same sentence would have been entered
even if the guidelines calculation was incorrect for the same reasons stated.
See United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012)(even where
harmless error review applies, such a statement that the district court would
have imposed the same sentence for the same reason can support a finding of
harmless error).
AFFIRMED.
3