IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40273

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JASON WAYNE MCDONNEL,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-803-1

Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Jason Wayne McDonnel appeals the 180-month sentence imposed 

following his guilty plea conviction of being a felon in possession of a firearm 

under 18 U.S.C. § 922(g). McDonnel claims that the district court erred in 

sentencing him as an armed career criminal under the Armed Career Criminal 

Act (“ACCA”), 18 U.S.C. § 924(e). He contends that the district court 

 

* 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

December 15, 2016

Lyle W. Cayce

Clerk

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committed error in enhancing his sentence under the ACCA because the 

Government did not satisfy its burden in establishing that his three predicate 

offenses occurred on occasions different from one another. McDonnel further 

contends that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district 

court reversibly erred by enhancing his sentence under the ACCA, because his 

indictment did not charge, a jury did not find, and he did not admit, the 

predicate facts necessary for an ACCA enhancement.

Because McDonnel’s claims concerning the district court’s application of 

the ACCA were not presented in district court, review is only for plain error. 

See United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003) (“When 

a defendant objects to his sentence on grounds different from those raised on 

appeal, we review the new arguments raised on appeal for plain error only.”). 

To show plain error, McDonnel must show a forfeited error that is clear or 

obvious and that affects his substantial rights. Puckett v. United States, 556 

U.S. 129, 135 (2009); United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 

2009). “Even then, this court does not exercise its discretion to correct the error 

unless it seriously affects the fairness, integrity, or public reputation of judicial 

proceedings and result[s] in a miscarriage of justice.” Henao-Melo, 591 F.3d at 

802 (internal quotation marks and citations omitted).

Under § 924(e)(1), a defendant convicted of being a felon in possession of 

a firearm is subject to a minimum sentence of 15 years if he has three prior 

convictions for “a violent felony or a serious drug offense, or both, committed 

on occasions different from one another.” McDonnel’s sentence was enhanced 

due to his two prior Texas convictions for delivery of a controlled substance and 

attempted taking of a weapon from a peace officer, and his prior Wisconsin 

offense for burglary. The Government established those convictions were for 

violent felonies and/or serious drug offenses that occurred on separate 

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occasions, by providing (i) as concerns the Wisconsin burglary conviction, the 

criminal complaint, information, and judgment and (ii) as concerns the two 

Texas convictions, the indictments and judgments. See United States v. Fuller, 

453 F.3d 274, 279 (5th Cir. 2006); United States v. Barlow, 17 F.3d 85, 89 (5th 

Cir. 1994). “Once the Government establishes the fact of a prior conviction 

based upon a guilty plea, the defendant must prove the invalidity of the 

conviction by a preponderance of the evidence.” Barlow, 17 F.3d at 89.

McDonnel did not meet this burden. McDonnel neither denied that the 

offenses underlying the three convictions at issue occurred on different 

occasions nor introduced any evidence, much less a preponderance, that they 

occurred on the same occasion. Additionally, as concerns the convictions at 

issue on this appeal—the Texas drug and weapon convictions—McDonnel (i)

did not dispute the existence of those convictions; (ii) did not dispute that the 

Texas drug conviction constituted a “serious drug offense;” (iii) recognized that 

any argument that his Texas weapon conviction was not a “violent felony” was 

foreclosed by this court’s precedent, see United States v. Avalos-Martinez, 700 

F.3d 148 (5th Cir. 2012); and (iv) did not dispute that his guilty pleas 

concerning those convictions were entered with adequate procedural 

safeguards. Based on the evidence presented, the district court consulted only 

Shepard-approved sources, see Shepard v. United States, 544 U.S. 13, 26 

(2005), concluded from those sources that McDonnel’s offenses occurred on 

different occasions, and applied the ACCA enhancement. Given McDonnel’s 

failure to offer evidence to the contrary, the district court’s findings did not 

constitute clear or obvious error.

Citing Fuller, 453 F.3d 274, and United States v. Constante, 544 F.3d 

584, 587 (5th Cir. 2006), McDonnel argues that the burden always remained 

with the Government to prove that the subject offense occurred on different 

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occasions. However, in each of those cases, the defendant had raised an 

objection in the district court to the ACCA enhancement, and, after the district 

court overruled the objections, appealed to this court raising the same issues. 

Fuller, 453 F.3d at 278; Constante, 544 F.3d at 584-85. Applying a de novo

standard of review in each case, this court disagreed with the district court and 

implicitly found that the defendant in each case had carried his burden of proof

in the district court through some combination of evidence and argument. 

Fuller, 453 F.3d 278-79; Constante, 544 F.3d at 585, 586-87. In contrast, 

because McDonnel failed to offer any evidence or object to the ACCA 

enhancement on the grounds raised on appeal, the record is simply insufficient 

to establish that the district court, in finding that the subject offenses were 

committed on different occasions, committed any error that is clear or obvious. 

See Puckett, 129 S. Ct. at 1429. 

McDonnel’s further contention that, under Apprendi, the facts 

underlying his three prior convictions “should have been charged in the 

indictment, and either proved to a jury or admitted by him, before they could 

be used to raise the statutory maximum sentence applicable to him,” has been 

foreclosed. Apprendi, 530 U.S. at 489-90; Almendarez-Torres v. United States, 

523 U.S. 224, 235 (1998); United States v. Juarez-Duarte, 513 F.3d 204, 211 

(5th Cir. 2008); United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005).

AFFIRMED.

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