# United States Court of Appeals **for the Fifth Circuit**

No. 20-10803 Summary Calendar

United States of America,

Plaintiff—Appellee ,

versus
D'Arde Lee Williams,

Defendant—Appellant

.

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:20-CR-18-1

Before Haynes, Willett, and Wilson, Circuit Judges

. Per Curiam: * D’Arde Lee Williams appeals the 30-m onth prison term and one-year term of supervised release imposed on hi s guilty plea convic tion for escaping from federal custody. See 18 U.S.C. § 751(a). We affirm.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 18, 2021 Lyle W. Cayce Clerk Case: 20-10803 Document: 00515905394 Page: 1 Date Filed: 06/18/2021No. 20-10803

2 Reviewing for plain error, 1 we reject the contention that Williams was entitled to a reduction of his base offens e level under U.S.S.G. § 2P1.1(b)(3), which establishes a four-level reductio n for a defendant who is under arrest on a felony charge or in custody for any conviction and who escapes from the nonsecure custody of a community corrections center, a community treatment center, a halfway house, or a like facility without returning voluntarily within 96 hours, provided he commits no other felony while escaped. United States v. Rodriguez , 602 F.3d 346, 351 (5th Cir. 2010); United States v. Fernandez-Cusco , 447 F.3d 382, 384 (5th Cir. 2006). Under the plain error standard’s first three prongs, the defendant must show (1) a forfeited error (2) that is clear or obvious, i.e. , not “subject to reasonable dispute,” and (3) that affects his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009); see United States v. Ellis , 564 F.3d 370, 377-78 (5th Cir. 2009). Thereafter, remedying the erro r is a matter of judicial discretion. Puckett , 556 U.S. at 135. Williams fails in his attempt to show that he was in the custody of a halfway house when he escaped and is thus entitled to the offense level reduction. At best, the record shows th at the claim is subject to reasonable dispute. See Puckett , 556 U.S. at 135; Ellis , 564 F.3d at 377-78. The factual resume states variously that at th e moment of his escape, Williams was confined in a halfway house in Houston, was in custody at a federal prison in Colorado, was assigned to but not ye t at the Houston halfway house, and

1 The Government argues that the proper standard is “invited error” due to the fact that Williams’s counsel affirmatively stated to the court that the § 2P1.1(b)(3) reduction at issue here was not in play. See United States v. Baytank (Houston), Inc. , 934 F.2d 599, 606 (5th Cir. 1991) (“A party gene rally may not invite error and then complain thereof.”). However, because Williams fails ev en under plain error, out of an “abundance of caution,” we will examine under plain error review. United States v. Fernandez-Cusco , 447 F.3d 382, 384 (5th Cir. 2006) Case: 20-10803 Document: 00515905394 Page: 2 Date Filed: 06/18/2021No. 20-10803

3 escaped from neither the prison nor th e halfway house but from a bus station in Lubbock. These ambiguities alone ar e a basis for reasonable debate about whether he was in nonsecure custody an d thus entitled to the § 2P1.1(b)(3) reduction. The reasonableness of the de bate is not diminished by the novel notions Williams advances that he co uld not be adjudged guilty unless his escape was from the halfway house and that the grand jury’s choice of words in the indictment dictates the sentencing determination. See United States v. Trejo , 610 F.3d 308, 319 (5th Cir. 2010); United States v Gluck , 143 F.3d 174, 178 (5th Cir. 1998); United States v. Taylor , 933 F.2d 307, 309 (5th Cir. 1991).
Further, even if we reached the th ird prong of plain error review, we would conclude any error did not affe ct his substantial rights given the district court’s statement that the sa me sentence would have been entered even if the guidelines calculation was incorrect for the same reasons stated. See United States v. Richardson , 676 F.3d 491, 511 (5th Cir. 2012)(even where harmless error review applies, such a statement that the district court would have imposed the same sentence for the same reason can support a finding of harmless error).

AFFIRMED. Case: 20-10803 Document: 00515905394 Page: 3 Date Filed: 06/18/2021