IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41052

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRIAN KEITH ANDREWS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:10-CR-152-5

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Brian Keith Andrews appeals the within-guidelines sentence for his guilty

plea conviction for conspiracy to possess with intent to distribute 150 grams or

more of cocaine base, arguing that the district court erred in sentencing him as

a career offender under U.S.S.G. § 4B1.1 because his two prior aggravated

assault convictions were not crimes of violence; his first aggravated assault

conviction was committed when he was 17 years old; and his prior convictions

were related and consolidated for sentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

July 5, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-41052

The district court did not err in sentencing Andrews as a career offender

under § 4B1.1. His prior Texas aggravated assault convictions under TEX.

PENAL CODE ANN. § 22.02 qualify as the enumerated offense of “aggravated

assault” under § 4B1.1. See United States v. Guillen-Alvarez, 489 F.3d 197, 200-

01 (5th Cir. 2007). The district court did not err in considering Andrews’s first

aggravated assault conviction because he was convicted as an adult. The district

court did not err in determining that Andrews’s second aggravated assault

conviction constituted a crime of violence as the indictment shows the crime

posed a serious potential risk of physical injury, even though the victim did not

suffer physical injury. See United States v. Moore, 635 F.3d 774, 777 (5th Cir.),

cert. denied, 132 S. Ct. 399 (2011). Because Andrews’s current conspiracy

offense began in January 2007, within six years of his release from prison in

October 2001 for his prior convictions, the district court did not err in

considering them under U.S.S.G. § 4A1.2(e). See United States v. Gipson, 46

F.3d 472, 475 (5th Cir. 1995). Finally, Andrews’s prior convictions were

separated by intervening arrests and, therefore, the district court did not err in

treating them as separate convictions. See U.S.S.G. § 4A1.2(a)(2).

Andrews maintains that the district court did not give sufficient reasons

for the sentence or for rejecting his request for a variance. Because he did not

raise this argument in the district court, review is limited to plain error. See

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

Andrews has not shown that there is a reasonable probability such an error

affected the sentence he received and therefore cannot satisfy his burden under

plain error review. See id. at 364. Nonetheless, the district court provided

sufficient reasons for the sentence to allow for meaningful appellate review and,

therefore, the district court did not commit any error, plain or otherwise. See

United States v. Bonilla, 524 F.3d 647, 657-58 (5th Cir. 2008).

According to Andrews,the sentence is substantively unreasonable because

it is greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors; the district

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No. 11-41052

court did not make findings regarding those factors, including his history and

characteristics; and the district court mechanically applied the career offender

enhancement. 

The district court made an individualized sentencing decision after

considering the advisory guidelines range, the Presentence Report, Andrews’s

arguments and allocution at sentencing, the sentences imposed on his

codefendants, and the § 3553(a) factors, including his history and characteristics,

the safety of the public, the need to promote respect for the law and to provide

just punishment. His within-guidelines sentence is presumptively reasonable. 

See United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). His

disagreement with the district court’s weighing of the § 3553(a) sentencing

factors does not suffice to rebut the presumption of reasonableness. See United

States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). Andrews has not shown that

the court’s choice of a within-guidelines sentence was improper. See United

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

AFFIRMED.

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