IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-30518

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

LLOYD E. CURRY,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CR-111-1

Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to, inter alia, felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1), Lloyd E. Curry does not challenge his 

conviction; he contests only his 336-month sentence, resulting from the district 

court’s classifying him as an armed career criminal under the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). Primarily at issue are whether a

prior conviction for attempted aggravated oral sexual battery constitutes 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.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2014

Lyle W. Cayce

Clerk

 

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“violent felony” under the ACCA and the applicable standard of review. For 

this appeal, review is only for plain error. AFFIRMED.

I.

Pursuant to a May 2010 superseding indictment, Curry was charged 

with three counts of heroin distribution, in violation of 21 U.S.C. § 841(b)(1)(C), 

and two counts of felon in possession of a firearm. In February 2011, he 

entered a plea agreement, pleading guilty to counts 1-3 (heroin distribution)

and 5 (felon in possession of a firearm) of his superseding indictment, with 

count 4’s being dismissed.

Curry’s plea agreement explained the maximum prison term for counts 

1-3 was 20-years’ imprisonment for each count, and the maximum term for 

count 5 was ten-years’ imprisonment. Additionally, the agreement included a 

warning that, given his criminal history and his guilty plea on count 5, Curry 

could qualify as an “‘[Armed] Career Offender’ pursuant to 18 [U.S.C. §] 

924(e)(1)”. 

At his rearraignment hearing, the district court re-stated those same 

maximum penalties for each count to which Curry was pleading guilty. The 

court twice provided notice that count 5 could result in application of the 

ACCA, which would subject Curry to a mandatory minimum sentence of 15-

years’ imprisonment and a maximum sentence of life imprisonment, provided 

the Government proved three previous convictions for violent felonies or 

serious drug offenses. 

The presentence investigation report (PSR) recommended Curry 

qualified as both a career offender, pursuant to Guideline § 4B1.1(a), and an 

armed career criminal under the ACCA, pursuant to Guideline 4B1.4(a). The 

PSR based this on three prior felony convictions: (1) 10 September 1997, for 

attempted aggravated oral sexual battery; (2) 14 December 1999, for attempted 

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distribution of marijuana; and (3) 20 June 2007, for aggravated flight from a

law-enforcement officer. Curry had admitted each of these convictions as part 

of the factual basis for his guilty plea. 

In his written objections to the PSR, Curry objected, inter alia, to his 

classification as an armed career criminal. That objection, however, only

stated: “Defendant objects and states that he should not be considered an 

‘[Armed] career criminal’ subject to an enhanced sentence”. At sentencing, 

Curry “re-alleged” that written objection, but declined to provide further detail 

or reasons in support. 

Considering Curry’s objection to his classification as an armed career 

criminal, the court noted the Government’s evidence regarding the three prior 

convictions listed in the PSR, admitted in evidence the certified copies of the 

state-court charging documents for those offenses, and concluded: “Each of 

these three convictions meets the requirement for a violent felony or serious 

drug offense”. As a result, the court overruled Curry’s objection. 

Curry’s advisory Guidelines-sentencing range for count 5 was 292-365 

months, with the statutory range for an armed career criminal being 15 years 

to life imprisonment. The court sentenced Curry to 240-months’ imprisonment 

for each of counts 1-3, and 336-months’ imprisonment for count 5, to be served 

concurrently. 

II.

Curry does not challenge the 20-year sentences for counts 1-3. He 

challenges only the court’s application of the ACCA and resulting 336-month 

sentence on count 5. In that regard, he claims only that the court erred as to 

classification, as a violent felony, of his prior conviction for attempted 

aggravated oral sexual battery. Re-stated, he does not dispute that the other 

two convictions, for aggravated flight and attempted distribution of marijuana,

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meet the requirements for a violent felony and a serious drug offense, 

respectively, under the ACCA. 

Additionally, Curry contends his sentence is unconstitutional. He 

maintains: (1) the ACCA’s residual clause is void-for-vagueness; and (2) 

judicial classification of prior convictions for purposes of the ACCA, without 

submitting that question to the jury, violates the Sixth Amendment.

A.

Before turning to whether Curry’s prior conviction for attempted 

aggravated oral sexual battery is a violent felony under the ACCA, we must 

decide the standard of review applicable to Curry’s challenge to that

classification. 

1.

Curry contends his broad objections to application of the ACCA were 

sufficient to preserve his specific challenge on appeal to the classification of 

that conviction under the ACCA. Thus, he contends review of the district 

court’s legal conclusion regarding that classification is de novo. E.g., United 

States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008). 

The obvious purpose of timely and specific objections is to allow the 

district court to examine issues and correct possible errors prior to appeal. 

E.g., United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). 

Chavez-Hernandez provides guidance on the specificity required, for priorconviction issues such as that presented now, to preserve them for appeal.

There, addressing classification, as a “crime of violence”, of a prior 

conviction for sexual activity with a minor, Chavez objected in district court to 

the classification, but failed either to provide further factual or legal support 

or to make a more specific objection at subsequent sentencing hearings. Id. at 

498. On appeal, Chavez again contended the prior conviction did not qualify 

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as a crime of violence and provided extensive briefing. Id. Our court applied 

the plain-error standard of review, however, because he “failed to put the 

government or the court on notice of his [appellate] arguments in this 

convoluted area”. Id. at 499; see also United States v. Brown, 437 F.3d 450, 

451 (5th Cir. 2006) (applying plain-error review to application of ACCA where 

appellant did not object at district court).

As discussed supra, in his objection to the PSR, Curry made only a 

general, written objection “that he should not be considered an ‘[Armed] career 

criminal’ subject to an enhanced sentence”. For factual support, he reiterated 

he “should not be assigned career criminal classification”. No further 

information was provided. 

Prior to sentencing, Curry filed an opposition to the Government’s 

sentencing motion. That opposition included the following: “The defendant 

should not be considered an ‘[Armed] career criminal’ subject to an enhanced 

sentence”. Again, no further legal contention or factual information was 

provided. 

Similarly, at sentencing, Curry re-alleged his prior written objection. He 

declined, however, to make any additional factual or legal presentation

supporting that objection. 

In response to Curry’s re-alleged objection, the court reviewed the statecourt charging documents and concluded, without detailed analysis: “Each of 

these three convictions meets the requirement for a violent felony or serious 

drug offense . . . . The defendant is, therefore, considered an armed career 

criminal under [18 U.S.C. § 924(e)(1)]”. Curry neither objected to that ruling 

nor responded further to the court’s classification of his conviction for 

attempted aggravated oral sexual battery.

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Although consistently stated, Curry’s broad objection did not alert the 

district court to his now-focused contention on appeal: whether his prior 

conviction for attempted aggravated oral sexual battery qualifies as a violent 

felony for ACCA purposes. Additionally, he never offered factual or legal 

support for why the offense is not a violent felony under the ACCA. 

Accordingly, as in Chavez-Hernandez, plain-error review applies. Under 

that standard, Curry must show: (1) an error; (2) that was clear or obvious; 

and (3) that affected his substantial rights. E.g., Puckett v. United States, 556 

U.S. 129, 135 (2009). And, even if he makes such a showing, this court has 

discretion to correct the forfeited error, but should do so only if it seriously 

affects the fairness, integrity, or public reputation of the proceedings. Id.

2.

For purposes of the ACCA, an offense qualifies as a “violent felony” if: 

(1) “physical force against the person of another” is an element; (2) the crime 

is one of the enumerated offenses (burglary, arson, or extortion); or (3) the 

crime falls within the ACCA’s residual clause because the conduct “presents a 

serious potential risk of physical injury to another”. United States v. Schmidt, 

623 F.3d 257, 260-61 (5th Cir. 2010); see also 18 U.S.C. § 924(e)(2)(B) (defining 

“violent felony”). 

Curry contends that, in determining the classification of a prior 

conviction as a violent felony under the ACCA, a court must employ a 

categorical approach. E.g., Sykes v. United States, 131 S. Ct. 2267, 2272 (2011). 

In other words, courts may “look only to the fact of conviction and the statutory 

definition of the prior offense” to determine whether an offense categorically 

qualifies as a violent felony. James v. United States, 550 U.S. 192, 202 (2007) 

(citations and internal quotation marks omitted); Schmidt, 623 F.3d at 261 

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(“court may only consider the elements of the conviction statute and not the 

specific conduct of the offender”).

When a statute presents disjunctive alternatives for conviction, however, 

the court may use the “modified categorical method” and consider certain other 

documents, including the charging documents, to determine which alternative 

was the basis for conviction. E.g., United States v. Hughes, 602 F.3d 669, 674 

(5th Cir. 2010) (citing Johnson v. United States, 559 U.S. 133, 144 (2010)).

At the time of the offense at issue, Louisiana law defined oral sexual 

battery as:

[T]he intentional engaging in any of the following acts 

with another person, who is not the spouse of the 

offender, when the offender either compels the other 

person to submit by placing the person in fear of 

receiving bodily harm, or when the other person has 

not yet attained fifteen years of age and is at least 

three years younger than the offender . . . the touching 

of the anus or genitals of the offender by the victim 

using the mouth or tongue of the victim.

La. R.S. § 14:43.3(A) (1996) (emphasis added). Oral sexual battery is 

aggravated when, inter alia, “the victim is under the age of twelve years”. La. 

R.S. § 14:43.4(A)(4) (1996). Further, under Louisiana law, a person is guilty of 

attempt if he has: “specific intent to commit a crime” and “does . . . an act for 

the purpose of and tending directly toward the accomplishing of his object”. 

La. R.S. § 14:27(A) (1996).

Louisiana’s oral-sexual-battery statute is divisible. Accordingly, the 

district court looked to the charging document to determine which alternative 

was the basis for conviction. See State v. Dugas, 1994-769 (La. App. 3 Cir. 

2/1/95); 649 So. 2d 1193, 1194-95 (stating charging document that fails to 

identify the way an oral sexual battery was committed is fatally defective). 

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Here, the charging document stated Curry “committed aggravated sexual 

battery upon [DB], by forcing [DB] to place his mouth upon the penis of Lloyd 

Curry” when the victim was under 12 years of age. The document is silent as 

to Curry’s age. Accordingly, it appears that Curry was charged under the 

compels-by-fear alternative for the oral-sexual-battery statute. (As 

demonstrated infra, we need not decide this point for purposes of our strict 

plain-error review. Re-stated, this point is not outcome determinative.)

In Begay v. United States, the Supreme Court clarified the two 

requirements for an offense to qualify as a violent felony under the ACCA’s 

residual clause. 553 U.S. 137, 141-42 (2008). First, attempted aggravated oral 

sexual battery qualifies as a violent felony if “the conduct encompassed by the 

elements of the offense, in the ordinary case, presents a serious potential risk 

of injury to another”. Schmidt, 623 F.3d at 263 (quoting James, 550 U.S. at 

208); Begay, 553 U.S. at 141 (accepting drunk driving as an “extremely 

dangerous crime” that presents potential risk of injury to others). Second, the 

offense must be “roughly similar, in kind as well as in degree of risk posed, to 

the” enumerated offenses provided in the ACCA. Begay, 553 U.S. at 143 

(citation omitted). 

In a prior opinion analyzing whether sexual contact with a minor 

qualifies as a crime of violence under Guideline § 2L1.2, this court stated:

“‘[W]hen 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’”. 

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)). Our court

further noted there is a threat of violence because the offense generally occurs 

“in close quarters” and the child has very few means “to deter the use of 

physical force”. Id. As a result, our court held the offense was a crime of 

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violence, even though the statute did not require the offender to compel 

submission through fear of bodily harm, as is required for the instant offense. 

Id. at 422-23. Additionally, this court analogized sexual contact with a minor 

to burglary, one of the enumerated offenses listed in the ACCA, because such 

an offense was a “far greater intrusion” and was likely to “cause alarm and to 

provoke physical confrontation”. Id. at 422.

Although Velazquez-Overa addressed a “crime of violence” under the 

Guidelines, that definition is nearly identical to a “violent felony” under the 

ACCA. See United States v. Najera-Mendoza, 683 F.3d 627, 631 n.3 (5th Cir. 

2012). As a result, the classification in Velazquez-Overa is applicable. Given 

our holding and analysis in Velazquez-Overa, and pursuant to our limited 

plain-error review, even assuming arguendo the district court erred in 

classifying Curry’s prior conviction as a violent felony, that assumed error 

could not have been clear or obvious. See Henderson v. United States, 133 S. 

Ct. 1121, 1124 (2013) (explaining “a substantive legal question that was 

unsettled at the time the trial court acted . . . foreclose[s] the possibility that 

an error could have been ‘plain’” unless it becomes settled by the time of 

appellate review). (As discussed, Curry cannot show plain error under the 

ACCA’s residual clause. Therefore, we need not reach whether, under the first 

basis for a violent felony under the ACCA, attempted aggravated oral sexual 

battery includes physical force as a required element of the offense.)

B.

Curry asserts the ACCA is unconstitutional on two grounds. He did not 

present either challenge in district court; thus, each is reviewed only for plain 

error. E.g., United States v. Parsons, 134 F. App’x 743, 743 (5th Cir. 2005). 

Each claim fails. 

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1.

Curry contends the ACCA’s residual clause is unconstitutionally vague. 

A penal statute must define an offense “with sufficient definiteness that 

ordinary people can understand what conduct is prohibited”. Kolender v. 

Lawson, 461 U.S. 352, 357 (1983). The Supreme Court has expressly rejected 

Curry’s contention. See James, 550 U.S. at 210 n.6 (stating the residual clause 

“is not so indefinite as to prevent an ordinary person from understanding what 

conduct it prohibits”); United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011). 

2.

For his other constitutional challenge, Curry contends the classification 

of a prior conviction as a violent felony, as well as the resulting application of 

the ACCA, requires judge-made factual findings in conflict with his Sixth 

Amendment rights. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) 

(“[A]ny fact that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury”.). To the contrary, this court 

has held previously: “[W]hen a court determines whether a conviction qualifies 

as a violent felony under the ACCA, it engages in statutory interpretation and 

not in judicial fact finding. Therefore, there is no Sixth Amendment issue 

under Apprendi v. New Jersey”. Schmidt, 623 F.3d at 260 (citing, inter alia,

James, 550 U.S. at 214). 

III.

For the foregoing reasons, the judgment is AFFIRMED.

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