### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 b e c a u se his two prior aggravated assault convict i o n s w e re not crimes of violence; his first aggravated assault conviction was committed when he was 17 years old; an d h i s p r i or convictions were related and consolidated for sentencing. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D July 5, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-41052 Document: 00511910844 Page: 1 Date Filed: 07/05/2012No. 11-41052

The district court did not err in sentencing Andrews as a career offender under § 4B1.1. His prior Texas aggravat e d assault convictions under T E X
. P E NA L C O D E AN N
. § 22.02 qualify as t h e e n umerated 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 aggrav a t e d a ssault convictio n 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 co n s p iracy offense began in January 2007, within six years of his relea s e from prison in October 2001 for his prior convictions, the district cou r t d i d n o t err in considering them under U.S.S.G. § 4A1.2(e). See United States v. Gipson , 46 F.3d 47 2 , 4 7 5 (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. SeeU.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 pla i n e r r o r . See U nited States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009). Andrews has not shown that there is a reasonable probab i l i t y s uch an error affected the sentence he received and therefore cannot satisfy his burden under plain e r r or review. See id. at 364. Nonetheless, the district court provided sufficient reasons for the sentence to allow for meaningful appellate review and, therefore, t h e d i strict court did not commit any error, plain or otherwise. See United States v. Bonilla , 524 F.3d 647, 657-58 (5th Cir. 2 008). Ac c o r din g to An dr e w s , the sentence is substantively unreasonable b e c au s e it is greater than necessary to satisfy the 18 U.S.C. § 3553(a) factors; the district
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c ourt did not make findings regarding those factors, including his hi s t o ry a n d characteristics; and the district court mechanically applied the career offender enhancement. T h e district court made an individualized sentencing decision afte r considering the advisory guidelines r a nge, the Presentence Report, Andrews’s arguments and allocu t i o n a t sentencing, the sentences imposed on his

c o d ef e n d ant s , an d th e § 3 5 5 3 (a) factors, including his history and characteristic s , 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 di s trict 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-gui d e lines sentence was improper. See United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 200 9). AFFIRMED.

3 Case: 11-41052 Document: 00511910844 Page: 3 Date Filed: 07/05/2012