United States v. Neal , 310 F. App'x 663 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 08-10041
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MONDRE DONYEE NEAL
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:07-CR-6-ALL
Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Mondre Donyee Neal appeals the sentence imposed following his guilty-
plea conviction for felony possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) & 924(a)(2). He argues that the district court erred in finding that
his deadly conduct conviction under T EX. P ENAL C ODE § 22.05 was a crime of
violence under U.S.S.G. § 2K2.1(a)(2). We do not consider whether Neal filed a
timely notice of appeal because, for the reasons stated below, we conclude that
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10041
his appeal has no merit. See United States v. Martinez, 496 F.3d 387, 388-89
(5th Cir.), cert. denied, 128 S. Ct. 728 (2007).
The Government has moved for leave to supplement the record and for
summary affirmance or, in the alternative, for an extension of time to file an
appellate brief. We grant the Government’s motion to supplement the record
with certified copies of the indictment from Neal’s deadly conduct case, a motion
to dismiss three of the four deadly conduct counts charged in the indictment, and
the final judgment on the remaining deadly conduct count. See United States v.
Martinez-Vega, 471 F.3d 559, 562 & n.2 (5th Cir. 2006).
Neal has not previously challenged the district court’s characterization of
his deadly conduct conviction as a crime of violence. Accordingly, as Neal
concedes, our review of the issue is for plain error. See United States v.
Gonzales, 484 F.3d 712, 714 (5th Cir.), cert. denied, 127 S. Ct. 3031 (2007). To
show plain error, Neal must show an error that is clear or obvious and that
affects his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir.
2008), ___ F.3d. ___, 2009 WL 56591 (2009). If Neal makes such a showing, we
have the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.The record as supplemented makes clear that Neal was convicted under
T EX. P ENAL C ODE § 22.05 (b)(1) for shooting a firearm in the direction of Oneshia
Walker. An offense under § 22.05(b)(1) constitutes a crime of violence under
§ 2K2.1(a)(2). See § 2K2.1, comment. (n.1); United States v. Hernandez-
Rodriguez, 467 F.3d 492, 494-95 (5th Cir. 2006). Accordingly, Neal has failed to
show that the error in enhancing his offense level under § 2K2.1 is clear or
obvious at the time of appellate consideration. See Martinez-Vega, 471 F.3d at
563; see also United States v. Fernandez-Cusco, 447 F.3d 382, 388 (5th Cir.
2006).
The judgment of the district court is AFFIRMED. The Government’s
motion to supplement the record and for summary affirmance is GRANTED.
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No. 08-10041
The Government’s alternative motion for an extension of time to file an appellate
brief is DENIED.
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