* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50380

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ERIC JAMES DIXON

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:06-CR-48-ALL

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges. 

PER CURIAM:*

The district court granted Eric James Dixon’s requestto represent himself

at his criminal trial on charges of possession of a firearm by a felon and

appointed stand-by counsel to assist Dixon. After a jury convicted Dixon, the

district court sentenced him to an 87-month term of imprisonment. Dixon is

represented by appointed counsel on appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

February 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-50380

2

Dixon argues that the trial court’s comments on his pro se performance

prejudiced the jury against him and caused his trial to be fundamentally unfair.

We conclude that Dixon preserved this argument for appellate review by

objecting to the court’s comments during a sidebar conference. Dixon also argues

thatthe trial court plainly erred at sentencing when it determined that his prior

Texas conviction for attempted deadly conduct was a crime of violence under

U.S.S.G. § 2K2.1(a)(4)(A).

We review a defendant’s complaints about a trial judge’s conduct to

determine “not . . . whether the [] conduct left something to be desired or even

whether some comments would have been better left unsaid . . . [but to]

determine whether the judge’s behavior was so prejudicial that it denied [the

defendant] a fair, as opposed to a perfect, trial.” United States v. Williams, 809

F.2d 1072, 1086 (5th Cir. 1987) (quoting United States v. Pisani, 773 F.2d 397,

402 (2d Cir. 1985)). A federal judge may “comment on the evidence, . . . question

witnesses, . . . and may maintain the pace of the trial by interrupting or cutting

off counsel as a matter of discretion.” Id. 

All ofthe judicial comments that Dixon challenges on appeal were directed

to Dixon’s persistent attempts to argue to the jury issues that had been resolved

against him in pretrial motions. Dixon ignored the court’s repeated explanation

that Dixon could raise the issues for appeal, but that he could not present them

for the jury to consider at trial. Dixon does not suggest that he is entitled to

appellate relief based on any of the defense theories that he attempted to raise

at trial. 

The district court instructed the jury to base its verdict solely on the

evidence and not to construe the court’s comments as indicating any opinion as

to Dixon’s guilt or innocence. See United States v. Johnson, 127 F.3d 380, 388

(5th Cir. 1997); Williams, 809 F.2d at 1088. When viewed as a whole, the trial

court’s efforts to exclude a legally irrelevant defense theory were not an abuse
No. 07-50380

3

of discretion and did not cause the trial to be constitutionally unfair. See United

States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994); Williams, 809 F.2d at 1086.

Because Dixon did not argue at sentencing that his prior conviction for

attempted deadly conduct is not a crime of violence under § 2K2.1(a)(4)(A), the

issue is reviewed for plain error. See United States v. Gonzales, 484 F.3d 712,

714 (5th Cir.), cert. denied, 127 S. Ct. 3031 (2007). Dixon must show that there

is a clear or obvious error that affects his substantial rights. See United States

v. Olano, 507 U.S. 725, 732 (1993). 

The Sentencing Guidelines provide that the base offense level for unlawful

possession of a firearm by a prohibited person is 14. U.S.S.G. § 2K2.1(a)(6). If

the offense “involved a firearm,” as did Dixon’s offense, the base offense level is

increased to 18. § 2K2.1(a)(5). The base level is increased to 20 if the defendant

has a prior conviction for a crime of violence. § 2K2.1(a)(4)(A). In relevant part,

a “crime of violence” is an offense or attempted offense punishable under federal

or state law by a term of imprisonment exceeding one year that either “(1) has

as an element the use attempted use, or threatened use of physical force against

the person of another, or (2) . . . involves conduct that presents a serious

potential risk of physical injury to another.” § 2K2.1, comment. (n.1); U.S.S.G.§

4B1.2(a)(1), (2) and comment. (n.1). To be considered a crime of violence under

§ 4B1.2(a)(2), the conduct presenting a serious potential risk of physical injury

to another must be expressly charged in the count of conviction. § 4B2.1,

comment. (n.1).

A person commits the Texas offense of deadly conduct if he: “(a) . . .

recklessly engages in conductthat places another in imminent danger of serious

bodily injury [or] (b) . . . knowingly discharges a firearm at or in the direction of

. . . (1) one or more individuals; or (2) a habitation, building, or vehicle and is

reckless as to whether the habitation, building, or vehicle is occupied.”

TEX. PENAL CODE § 22.05. In the conviction at issue, Dixon was indicted for
No. 07-50380

4

aggravated assault, but he pleaded guilty to attempted deadly conduct pursuant

to a plea bargain. 

We disagree with the Government’s contention that United States v.

Dominguez, 479 F.3d 345, 348 (5th Cir.), cert. denied, 128 S. Ct. 61 (2007), and

UnitedStates v. Hernandez-Rodriguez, 467F.3d 492 (5th Cir. 2006), cert. denied,

127 S. Ct. 1350 (2007) compel the conclusion that the Texas offense of deadly

conductis a crime of violence. Dominguez is not relevant to the issue in this case

and Hernandez-Rodriguez dealt with a conviction under § 22.05(b)(1), which

prohibits the knowing discharge of a firearm at or in the direction of one or more

individuals. See Hernandez-Rodriguez, 467 F.3d at 494; § 22.05(b)(1).

Hernandez-Rodriguez does not hold that a generic conviction under § 22.05 is a

crime of violence. Hernandez-Rodriguez, 467 F.3d at 494. 

We employ the categorical approach established inTaylor v. United States,

495 U.S. 575, 602 (1990) to determine whether a prior offense is a crime of

violence because it has as an element the use, attempted use or threatened use

of force or because it inherently presents a serious potential risk of physical

injury. Hernandez-Rodriguez, 467 F.3d at 494; United States v. RodriguezJaimes, 481 F.3d 283, 286 (5th Cir. 2007). If a statute contains multiple,

disjunctive subsections, we may consider other conclusive records made or used

in adjudicating guilt in order to determine which statutory subsection applies to

the defendant's conviction. Hernandez-Rodriguez, 467 F.3d at 494. It is not

possible from the documents available in this case to identify the specific

subsection of § 22.05 that Dixon was convicted of violating. 

We conclude that a generic conviction for violating § 22.05 is not a crime

of violence under § 4B1.2(a)(1) because that guideline requires “the use,

attempted use, or threatened use of physical force against the person of

another,” while § 22.05 (b)(2) prohibits the knowing discharge “of a firearm at or

in the direction of a habitation, building, or vehicle, with reckless disregard as

to whether the habitation, building, or vehicle is occupied.” § 22.05(b)(2); 
No. 07-50380

5

§ 4B1.2(a)(1); see United States v. Alfaro, 408 F.3d 204, 206-09 (5th Cir. 2005);

see also Rodriguez-Jaimes, 481 F.3d at 286. 

Absent the crime of violence enhancement, Dixon’s base offense level

would have been 18 and the applicable sentencing guidelines range would have

been 57-to-71 months, § 2K2.1(a)(6); U.S.S.G., Sentencing Table, a range that

does not include the 87-month sentence Dixon received. Because the PSR does

not reveal any other prior convictions that would qualify as a crime of violence,

Dixon has shown clear or obvious error that affects his substantial rights.

Olano, 507 U.S. at 731-37. 

Accordingly, we AFFIRM Dixon’s conviction, VACATE his sentence, and

REMAND the case for resentencing.