IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20268

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DON JEROME SHEPHERD, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.*

EDITH H. JONES, Circuit Judge:

This is an appeal that should not have been pursued. Appellant 

Shepherd’s challenge to the PSR’s sentencing guidelines calculation was 

brought to the district court’s attention; the court acknowledged some 

uncertainty about the appropriate sentencing range; and the court explicitly 

sought to “moot” the challenge. This the court did by issuing a sentence that 

effectively accepts Shepherd’s objection. Not content with partial but palpable 

success, he claims on appeal that the court’s pronouncement was too “vague”

 

* Judge Haynes concurs in the judgment only.

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2017

Lyle W. Cayce

Clerk

 Case: 15-20268 Document: 00513869344 Page: 1 Date Filed: 02/09/2017
No. 15-20268

2

to withstand harmless error analysis. We disagree. The sentence is 

AFFIRMED.

Don Jerome Shepherd pled guilty to being a felon in possession of a 

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Shepherd received 

a total offense level of 25 based, in part, on his prior Texas convictions for 

aggravated assault, Tex. Penal Code § 22.02(a)(2), and delivery of a controlled 

substance, Tex. Health & Safety Code § 481.112(a). Shepherd’s Criminal 

History Category of III yielded a guidelines range of imprisonment of 70 to 87 

months. Shepherd objected to the determination that his prior Texas 

conviction for delivery of a controlled substance constituted a controlled 

substance offense under the guidelines. At sentencing, the district court 

overruled his objection, but imposed a much lower sentence of 46 months 

imprisonment and three years of supervised release. The district judge stated 

that she wished to “moot” Shepherd’s objection.

Shepherd contends on appeal that the court misapplied the guidelines 

enhancements for both of the Texas convictions, neither of which is eligible to 

serve as a predicate offense under U.S.S.G. § 4B1.2(b). We find, respectively, 

harmless error and no plain error in the court’s determinations.

First, it is correct that, after the court sentenced Shepherd, this court 

declared that a Texas conviction for delivery of a controlled substance is not a 

“controlled substance offense” within the meaning of the Sentencing 

Guidelines, U.S.S.G. § 2K2.1(a)(2) (and therefore cannot serve as a predicate 

offense under § 4B1.2(b)). United States v. Hinkle, 832 F.3d 569, 571 (5th Cir. 

2016). 

Nonetheless, as Shepherd should have surmised from the sentencing 

colloquy, the court’s error was harmless because it did not affect the district 

court’s selection of the sentence imposed. United States v. RodriguezRodriguez, 775 F.3d 706, 712 (5th Cir. 2015). Well aware of the legal nuances 

 Case: 15-20268 Document: 00513869344 Page: 2 Date Filed: 02/09/2017
No. 15-20268

3

of Shepherd’s argument, the district court stated her intent to “moot this 

objection” by imposing a 46-month prison sentence. This sentence is at the 

bottom of the guidelines range of 46-57 months, which would have applied if

the district court had granted Shepherd’s objection and found that his state 

conviction was not a controlled substance offense. The record demonstrates 

that the judge “thought the sentence it chose was appropriate irrespective of 

the Guidelines range.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 

(2016). In these instances, “prejudice does not exist.” Id. The government 

bears the burden to prove harmless error, United States v. Woods, 440 F.3d 

255, 262 (5th Cir. 2006). But we cannot envision what is plausibly “harmful” 

about a sentence that is not only one-third below the erroneous range, but also 

is at the bottom of the correct range, and is issued for the express purpose of 

obviating the possibility that the lower range will prevail. This point of error 

may have legal substance but was meritless when viewed in context of the 

record.

Applying the sentencing guidelines is daily becoming more complex, in 

part because of defense counsels’ accelerating creativity in challenging 

guidelines calculations. To avoid the costs and administrative burdens of 

resentencing, we have repeatedly urged courts in appropriate cases to explain 

that they would have imposed the same sentence regardless of possible 

mistakes in guidelines calculations. See United States v. Ibarra-Luna, 

628 F.3d 712, 718 (5th Cir. 2010). Although clarity of intent must be 

expressed, such statements do not require magic words. See, e.g., United States 

v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008); United States v. Lemus-Gonzalez, 

563 F.3d 88, 94 (5th Cir. 2009); United States v. Duhon, 541 F.3d 391, 396 (5th 

Cir. 2008). When, as here, it is abundantly clear that the court wanted to 

“moot” the defendant’s objection—by ordering a sentence that effectively

 Case: 15-20268 Document: 00513869344 Page: 3 Date Filed: 02/09/2017
No. 15-20268

4

grants counsel’s objection—the appeal of the “sentencing error” makes no 

sense. The “error” in adopting the higher guideline range is harmless.

Shepherd next asserts that the district court plainly erred in classifying 

his prior Texas conviction for aggravated assault, Tex. Penal Code §22.02(a)(2), 

as a crime of violence under U.S.S.G. § 2K2.1(a)(2). Because Shepherd failed 

to object to the district court’s enhancement in the lower court, this court 

reviews for plain error. United States v. Price, 516 F.3d 285, 286–87 (5th Cir. 

2008). His complaint fails at the first stage of plain error review, which is to 

show that the court erred. United States v. Escalante-Reyes, 689 F.3d 415, 419 

(5th Cir. 2012). Again, the conclusion of this analysis is obvious.

Shepherd was convicted for aggravated assault under Tex. Penal Code 

§ 22.02(a)(2), which provides:

(a) A person commits an offense if the person commits assault as 

defined in Section 22.01 and the person:

(1) causes serious bodily injury to another, including the 

person's spouse; or

(2) uses or exhibits a deadly weapon during the commission of 

the assault.

Tex. Penal Code § 22.02(a) (2003). The guidelines define a crime of violence as 

an offense that, inter alia, has as an element the use, attempted use, or 

threatened use of physical force against the person of another. U.S.S.G. 

§ 4B1.2. 

Under the provision in the Armed Career Criminal Act (“ACCA”) that is 

worded identically to § 4B1.2, this court found no plain error in holding that a 

defendant’s Texas conviction for aggravated assault has as an element the

threatened use of physical force against the person of another. United States 

v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015). Construing identically worded 

provisions alike, Shepherd’s Texas conviction for aggravated assault is a crime 

 Case: 15-20268 Document: 00513869344 Page: 4 Date Filed: 02/09/2017
No. 15-20268

5

of violence under § 4B1.2. See id; see also United States v. Guillen-Alvarez, 

489 F.3d 197, 201 (5th Cir. 2007).

We have previously rejected Shepherd’s assertion that this guideline is 

unconstitutionally vague. United States v. Gonzalez-Longoria, 831 F.3d 670, 

679–84 (5th Cir. 2016) (Jones, J., concurring). Further, the Supreme Court’s 

recent decision in Mathis v. United States, 136 S. Ct. 2243 (2016), does not cast 

doubt on our evaluation of the aggravated assault statute under the guidelines. 

Because we have already held in Guillen-Alvarez, 489 F.3d at 200–01, that Tex.

Penal Code § 22.02(a)(2) qualifies as a conviction for the enumerated offense of 

aggravated assault and is a crime of violence, it is “irrelevant whether the 

challenged statutory alternatives are considered means or elements.” United 

States v. Villasenor-Ortiz, No. 16-10366, 2017 WL 113917, at *3 (5th Cir. 

Jan. 11, 2017). 

For the foregoing reasons, the sentence issued by the district court is 

AFFIRMED.

 Case: 15-20268 Document: 00513869344 Page: 5 Date Filed: 02/09/2017