IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40528

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

COREY HAMMON GREEN,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 6:16-CR-10-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Corey Hammon Green appeals his guilty plea conviction and 151-month 

sentence for witness retaliation, in violation of 18 U.S.C. § 1513(b)(2). For the 

first time on appeal, Green argues that the district court failed to admonish 

him correctly about the elements of the offense and failed to confirm that his 

plea was supported by a sufficient factual basis. He therefore asserts that his 

plea was unknowing and involuntary.

 

* 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

April 3, 2018

Lyle W. Cayce

Clerk

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Where, as here, a defendant does not object to Federal Rule of Criminal 

Procedure 11 errors in the district court, this court reviews for plain error. See 

United States v. Brown, 328 F.3d 787, 789 (5th Cir. 2003). To show reversible 

plain error, the defendant must show that the error was clear or obvious and 

affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, this court has the discretion to correct the 

error but only if it “seriously affects the fairness, integrity or public reputation 

of judicial proceedings.” Id.

Green contends that the district court failed to ensure that he was aware 

of the “crucial elements” of the witness retaliation charge to which he was 

pleading, as required by FED. R. CRIM. P. 11(b)(1)(G). However, both the 

rearraignment transcript and record as whole show that the district court 

sufficiently confirmed Green’s understanding of the nature of the charges 

against him. See United States v. Reyes, 300 F.3d 555, 559-60 (5th Cir. 2002); 

United States v. Lujano-Perez, 274 F.3d 219, 225-26 (5th Cir. 2001); 18 U.S.C. 

§ 1513(b)(2); see also United States v. Vonn, 535 U.S. 55, 59 (2002). Because a 

reasonable person would not doubt that Green understood the charge to which 

he was pleading, he has not shown any clear or obvious error in connection 

with the district court’s explanation of the charge or its implicit conclusion that 

he understood the charge against him. See Reyes, 300 F.3d at 559; see also 

Puckett, 556 U.S. at 135.

The challenge to the factual basis that Green now raises is conflated with 

his claim that the district court failed to confirm that he understood the 

elements of the offense; he asserts that he disagreed with the Government’s 

recitation of the facts and that the record is thus unclear whether he was aware 

he was pleading guilty to causing bodily injury, causing property damage, or 

threatening to do so under § 1513(b)(2). The argument is belied by the record, 

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which shows that Green admitted having hit a fellow inmate and causing him 

bodily injury, that he intended to do so in retaliation for the inmate’s role as a 

witness in the drug case against him, and that his only disagreement was with 

the characterization of the incident as a one-sided assault rather than a mutual 

fight. The record as a whole shows that the district court confirmed that the 

conduct admitted by Green was sufficient to constitute the offense of witness 

retaliation, and Green fails to show any plain error in connection with the 

factual basis for his plea. See United States v. Trejo, 610 F.3d 308, 313, 317

(5th Cir. 2010); see also Puckett, 556 U.S. at 135. 

The majority of Green’s appellate brief is devoted to the newly raised 

argument that the district court erred in sentencing him as a career offender 

under U.S.S.G. §§ 4B1.1 and 4B1.2. More specifically, he contends that the 

district court erred in determining that the instant conviction for witness 

retaliation was a crime of violence triggering application of the career offender 

enhancement. Because he did not raise the argument in the district court, 

plain error review also applies to this claim. See Puckett, 556 U.S. at 135; 

United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

Green now contends that his statute of conviction, § 1513(b)(2), is 

indivisible and that the least culpable means of committing the offense, 

threatening to cause damage to the property of another person, does not have 

as an element the use, threatened use, or attempted use of force, meaning that 

it cannot be a crime of violence for purposes of the career offender 

enhancement. As both parties acknowledge, neither this court nor any other 

circuit has addressed the question whether witness retaliation under 

§ 1513(b)(2) is a crime of violence or whether that statute is divisible or 

indivisible. That being so, Green cannot show that the alleged error is clear or 

obvious under current law rather than subject to reasonable dispute. See 

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Puckett, 556 U.S. at 135; United States v. Olano, 507 U.S. 725, 734 (1993) (“At 

a minimum, court of appeals cannot correct an error . . . unless the error is 

clear under current law.”); see also United States v. Garcia-Gonzalez, 714 F.3d 

306, 318 (5th Cir. 2013) (stating that, when an appellant raises an issue of first 

impression, this court will “conclude that any error was not plain or obvious.”). 

Consequently, he fails to meet his burden under plain error review. See 

Puckett, 556 U.S. at 135. 

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

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