IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11079

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

TONY RAY SIMPSON, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:14-CR-348-1

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:*

Tony Ray Simpson appeals the sentence imposed upon him after a jury 

convicted him of firearm and drug offenses. He contends that his prior Texas 

conviction for burglary does not count as a crime of violence under the 

Sentencing Guidelines. The government has introduced new documents from 

that state-court proceeding and now agrees with Simpson that it was a mistake 

to treat his earlier conviction as such. The government, however, does not 

 

* 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

March 20, 2017

Lyle W. Cayce

Clerk

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agree with Simpson about another Guidelines question: whether the district 

court was allowed to apply an enhancement for crimes committed while on 

pretrial release when the jury was not asked to make that determination.1

I.

A grand jury charged Simpson with being a felon in possession of a 

firearm. While on release awaiting trial for that charge, he was again found 

with a firearm and, this time, drugs. That resulted in the return of a 

superseding indictment. It charged Simpson with the original felon-inpossession offense (Count One), the new one (Count Two), possessing 

marijuana with the intent to distribute it (Count Three), and possessing a 

firearm in furtherance of that drug trafficking (Count Four). The indictment 

also contained a sentencing notice which alleged that Simpson was subject to 

the sentencing enhancement under 18 U.S.C. § 3147(1) because he committed 

the final three of these crimes while on pretrial release for the first offense. 

See 18 U.S.C. § 3147(1) (requiring imposition of separate, consecutive 

imprisonment term of up to 10 years for a person convicted of a felony offense 

committed while on release). The jury convicted Simpson of all counts, but was 

not asked to find whether Simpson committed the final three while on pretrial 

release for the first.

The district court determined, over Simpson’s objections, that Simpson’s 

base offense level was 20 because the felon-in-possession convictions followed 

a conviction for a crime of violence, namely his 1997 Texas conviction for 

burglary of a habitation. The district court also overruled Simpson’s objection 

 

1 In order to preserve the issue for further appellate review, Simpson also argued that 

the felon-in-possession of a firearm statute, 18 U.S.C. § 922(g)(1), is unconstitutional insofar 

as mere proof that the gun was manufactured in a different state is sufficient to show that a 

defendant possessed it in a manner “in or affecting interstate commerce.” He acknowledges, 

however, that this issue is foreclosed by circuit precedent. See United States v. Alcantar, 733 

F.3d 143, 145–46 (5th Cir. 2013). 

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that the sentencing enhancement under section 3147 and the corresponding 

three-level enhancement under Guidelines section 3C1.3 should not apply 

because the jury did not find beyond a reasonable doubt that Simpson 

committed an offense while on pretrial release. The district court thus 

concluded that Simpson’s Guidelines ranges for Counts One and Two was 57 

to 71 months and his Guidelines range for Count Three, which carries a 

statutory maximum of 60 months of imprisonment, was 57 to 60 months. The 

924(c) conviction in Count Four has a statutory minimum of 60 months and no 

Guidelines range.

At sentencing, the district court orally imposed a total term of 

imprisonment of 126 months as follows: concurrent terms 60 months on each 

of the first three counts; a consecutive term of 60 months on Count Four; and 

a consecutive term of six months for Simpson’s violation of section 3147(1). The 

written judgment, however, omits the six-month sentence imposed pursuant 

to section 3147(1), resulting in a total sentence of 120 months. The government 

does not challenge that omission.

II.

Both Simpson and the government agree that the case should be 

remanded for resentencing without the crime of violence determination. 

Simpson argues that he only pleaded guilty to a burglary offense under 

subsection 30.02(a)(3) of the Texas Penal Code and not subsection (a)(1).2 A

conviction under the former does not count a crime of violence because section 

30.02(a)(3) does not require intent to commit another crime at the time the 

 

2 “A person commits an offense if, without the effective consent of the owner, the 

person: (1) enters a habitation, or a building (or any portion of a building) not then open to 

the public, with intent to commit a felony, theft, or an assault; or . . . (3) enters a building or 

habitation and commits or attempts to commit a felony, theft, or an assault.” TEX. PENAL 

CODE § 30.02(a).

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defendant enters the building (only the commission of a crime once inside the 

building). See United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008). 

In his opening brief, Simpson contends that “squiggles” on the Texas 

indictment and judicial confession over the text that tracks subsection (a)(1) 

indicate the intent to remove this part of the charge from the indictment and 

plea. Furthermore, someone wrote his or her initials next to the squiggle on 

the indictment. While Simpson did not raise this argument before the district 

court, he now argues that the squiggles and initials show that he did not plead 

guilty to an offense described by subsection (a)(1) but only an offense described 

by subsection (a)(3).

For its part, the government found in the state court filings a motion by 

the prosecution to “strike and/or dismiss . . . Count #1 (one)” of the indictment. 

This was the same count marked with the squiggles. The government has filed 

a motion in this court to supplement the record with its discovery. We grant 

the motion. See United States v. Charles, 301 F.3d 309, 313 n.7 (5th Cir. 2002)

(en banc) (granting government’s motion to supplement the record with a copy 

of the defendant’s indictment). The government agrees with Simpson that it 

was plain error to sentence him treating his prior burglary conviction as a 

crime of violence

The court, however, is not bound by the government’s concession of plain 

error. United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008). To establish 

plain error, Simpson must show (a) error at sentencing, (b) that was “plain,” 

and that (c) affected his substantial rights. Puckett v. United States, 556 U.S. 

129, 135 (2009). If those conditions are met, we have discretion to correct the 

error if it seriously affected the fairness, integrity, or public reputation of the 

proceeding. Id. 

There is no question that there was plain error—subsection (a)(3) does 

not describe a crime of violence and the extra material introduced by the 

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government makes it unmistakable that Simpson was only convicted of an 

offense matching that subsection. There is also no doubt that Simpson’s 

substantial rights were affected: his Guidelines range without the crime-ofviolence enhancement would have been 30 to 37 months, lower than the 57 to 

71 months range used at sentencing and the 60 month sentence he received. 

See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (“When a 

defendant is sentenced under an incorrect Guidelines range—whether or not 

the defendant’s ultimate sentence falls within the correct range—the error 

itself can, and most often will, be sufficient to show a reasonable probability of

a different outcome absent the error.”). 

As to the fairness, integrity, or public reputation of the proceedings, two 

reasons favor correcting the plain error. First, that Simpson’s sentence was 

well outside the correct Guidelines range weighs in favor of remand. See 

United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (describing how the 

court has “been generous with remand, often finding that errors leading to 

substantial increases in sentence . . . merited remand”). Even in a case in 

which the Guidelines discrepancy was lower (eighteen months) and the 

defendant’s actual sentence fell within the correct range, we found the fairness 

and integrity of judicial proceedings would be impaired by a failure to remand. 

United States v. Price, 516 F.3d 285, 289–90 (5th Cir. 2008); see also United 

States v. Hernandez, 690 F.3d 613, 621 (5th Cir. 2012) (finding plain error in 

twelve-month disparity between correct Guidelines range and actual 

sentence); United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir. 2011) (per 

curiam) (same); United States v. Santacruz-Hernandez, 648 F. App’x 456, 458 

(5th Cir. 2016) (per curiam) (finding plain error based on two-month disparity 

between correct Guidelines range and actual sentence). So does the nature of 

the error, which was not a legal misapplication of the often vexing categorical 

approach but an outright error about the state offense under which Simpson 

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had been convicted. Cf. United States v. De Leon, 728 F.3d 500, 507–08 (5th 

Cir. 2013); United States v. Mason, 722 F.3d 691, 695 (5th Cir. 2013) (both 

finding that error in restitution calculation satisfied the final plain error 

requirement because defendant was being held responsible for conduct he was 

not convicted of committing). A substantial injustice would result if a 

conviction for an offense Simpson did not commit resulted in him serving 

roughly double the prison time a correct Guidelines range would have 

recommended. We thus vacate the 60-month sentences for Counts One 

through Three.

III.

Although we are vacating his sentence because Simpson did not have a 

prior crime-of-violence conviction, to assist in that resentencing we will also 

address his other challenge. It involves the section 3147 penalty that applies 

when a defendant commits a felony while on pretrial release for another federal 

charge: an additional, consecutive term of imprisonment of up to ten years.3 

18 U.S.C. § 3147. The separate sentence the statute contemplates was orally 

imposed by the district court, but did not appear in the judgment. The finding 

of a section 3147 violation nonetheless had an impact on Simpson’s official 

sentence because it increased his Guidelines range by three levels. U.S.S.G. §

3C1.3.4

 

3 Section 3147 can be read as providing for a separate offense and conviction. But well 

before Apprendi, we had agreed with other circuits that section 3147 provides a sentencing 

enhancement rather than a separate offense. See United States v. Jackson, 891 F.2d 1151, 

1152–53 (5th Cir. 1989).

4 The discrepancy between the oral pronouncement and written judgment may be a 

result of the peculiar procedure the Guidelines commentary recommends for dealing with the 

enhancement for committing an offense while on pretrial release. It says to calculate a total 

sentence for the underlying offense committed on release using the Guideline enhancement, 

then subtract the amount of the sentence attributable to the enhancement (here 6 months), 

and finally impose this additional amount as a separate, consecutive sentence per section 

3147’s command. U.S.S.G. § 3C1.3 cmt. 1. The district court’s oral sentence pulled out the 

six months as an additional sentence, but did not reduce the Guidelines range by that 

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Simpson naturally does not seek reinstatement of the separate sixmonth sentence (nor does the government), but he argues that increasing his 

Guidelines range because of a section 3147 finding that was made without a 

jury determination violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and 

the recent case extending Apprendi to statutory minimums, Alleyne v. United 

States, 133 S. Ct. 2151 (2013).

The application of section 3C1.3 standing alone violates neither 

Apprendi nor Alleyne because it did not increase Simpson’s statutory 

maximum or minimum sentence. See United States v. Hebert, 813 F.3d 551, 

564–65 (5th Cir. 2015); United States v. Dison, 573 F.3d 204, 209 (5th Cir.

2009). Simpson’s main argument is not, however, that the enhancement 

violates Apprendi or Alleyne on its own terms but that section 3C1.3 cannot 

apply unless section 3147 applies. According to his reasoning, even though the 

propriety of employing section 3147 was partly mooted by the omission in the 

written judgment, the section still casts a shadow over his sentence as a 

necessary predicate for the live 3C1.3 enhancement.

Section 3C1.3 states, “If a statutory sentencing enhancement under 18 

U.S.C. § 3147 applies, increase the offense level by 3 levels.” U.S.S.G. § 3C1.3. 

On Simpson’s reading, section 3C1.3 cannot be used to enhance a sentence 

unless section 3147 is constitutional under Apprendi and Alleyne. This, 

however, is a misreading of the Guidelines provision. As the First Circuit 

explained in United States v. Randall, 287 F.3d 27 (1st Cir. 2002), a reference 

in the Guidelines to a criminal statue may be used to identify conduct that 

triggers a Guidelines provision without making a “conviction” or other 

 

amount. It thus would have doubly counted the enhancement. The written judgment 

corrected this problem though it did not result in the commentary’s recommended outcome 

of a separate sentence for the enhancement. 

 

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adjudication under that statute a prerequisite for deploying the provision. 287 

F.3d at 30–31; see also United States v. Samuel, 296 F.3d 1169, 1174 (D.C. Cir. 

2002) (“The fact that the offense characteristic at issue here—committing the 

offense while on release for another crime—is specified by statute does not 

disturb our conclusion.”); but see United States v. Confredo, 528 F.3d 143, 155 

(2d Cir. 2008) (disagreeing with Samuel and Randall because application of 

the Guidelines provision is a “technique for implementing section 3147”). The 

Randall court analogized to a Guidelines provision that “mirror[s] a statutory 

enhancement provision” without making that provision suspect under 

Apprendi. 287 F.3d at 30. Guidelines section 2D1.11(d), relating to drug 

weights, is one example when the same facts that can be found by a judge to 

trigger a Guidelines provision otherwise define distinct criminal offenses, such 

as 21 U.S.C. § 841(b)(1). Randall, 287 F.3d at 30.

Indeed, the language employed by the Guidelines distinguishes between 

cases in which a conviction under a statute triggers the Guideline and cases in 

which the statute is merely cited to identify conduct that activates the 

Guideline. For example, Guidelines section 2D1.11(2) states, “If the defendant 

is convicted under 21 U.S.C. 865, increase by 2 levels.” Like section 3147, 

section 865 is not a separate offense but a statutory enhancement. See 21 

U.S.C. § 865(a); Dison, 573 F.3d at 209. The drafters of the Guidelines know 

how to make conviction “under” a sentencing statute a predicate for a 

Guideline but did not do so when writing section 3C1.3.Sure 

Because the reference in Guidelines section 3C1.3 to the section 3147

statute is meant to identify the conduct that triggers an enhancement, not 

make the enhancement depend upon a conviction under the statute, the trial 

court did not err by applying the enhancement for offenses committed while on 

pretrial release.

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* * *

We VACATE Simpson’s sentence on Counts One through Three and 

REMAND for resentencing. 

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