UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 96-20753

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY LEE WILLIAMS,

Defendant-Appellant.

____________________________________________

Appeal from the United States District Court

for the Southern District of Texas

____________________________________________

August 19, 1997

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this challenge to both a conviction based on a guilty plea

and the ensuing sentence enhanced under 18 U.S.C. § 924(e) (for

defendants convicted of certain offenses involving firearms who

have three prior qualifying felony convictions), the principal

issue is whether one of the enhancement felony convictions

(enticing and inviting child into house to commit sodomy) is a

requisite “violent felony”. We AFFIRM. 

I.

Johnny Lee Williams was arrested for violation of the

conditions of his state parole, namely contacting children at an

elementary school, after having been convicted of sex offenses with
- 2 -

children. At his arrest, officers searched his residence and found

two firearms. 

Williams pled guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and to being in

possession of a rifle of length less than 26 inches which was not

registered to him, in violation of 26 U.S.C. § 5861(d). During the

plea colloquy, the district court advised Williams that he faced a

maximum sentence of ten years for each of the two charges. The

court also advised him that, under § 924(e), if he were found to

have three prior violent felony convictions, he could receive a

mandatory minimum of 15 years. But, the court failed to advise him

that the applicable maximum would be life imprisonment. 

At sentencing, Williams contended that one of the prior felony

convictions relied on by the Government to trigger § 924(e) was not

a “violent felony”. That offense was a state conviction under

former 1925 TEX. CRIM. STAT. 535(b) for enticing and inviting, with

lascivious intent, a child under the age of 14 to enter a house for

the purpose of committing an act of sodomy. After supplemental

briefing, the court ruled that the felony was violent because,

pursuant to § 924(e)(2)(B)(ii), it involved “conduct that presents

a serious potential risk of physical injury to another”. (Emphasis

added.)

Williams was sentenced, inter alia, to 210 months imprisonment

on one count and 120 months on the other, with the sentences to run

concurrently, including with the state time he was serving. 
 

* At oral argument, Williams contended, for the first time

on appeal, that the district court’s statements as to a ten-year

maximum for each of the two charges potentially caused Williams to

understand that the maximum imprisonment he faced was only ten, not

20, years. No authority need be cited for our rule that,

generally, we do not consider issues presented at oral argument for

the first time. In any event, the record does not support this

contention. Moreover, in the light of the fact that Williams was

told he faced a possible minimum 15-year term if his sentence was

enhanced under § 924(e), he could hardly have thought he only faced

a ten-year maximum.

- 3 -

II.

A.

Williams’ contention that the district court committed

reversible error under FED. R. CRIM. P. 11 in not informing him of

the possibility of a life sentence is unavailing. The court told

him that he faced a 15-year mandatory minimum sentence, and he

received a sentence less than the potential 20-year maximum related

to him by the court (ten years for each of the two charges).*

The error was harmless. Rule 11 harmless error analysis

requires us to examine 

whether the defendant’s knowledge and

comprehension of the full and correct

information would have been likely to affect

his willingness to plead guilty. Stated

another way, we “examine the facts and

circumstances of the ... case to see if the

district court’s flawed compliance with ...

Rule 11 ... may reasonably be viewed as having

been a material factor affecting [defendant]’s

decision to plead guilty”.

United States v. Bond, 87 F.3d 695, 702 (5th Cir. 1996)(quoting,

United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993)(en

banc)(quoting, United States v. Bachynsky, 934 F.2d 1349, 1360 (5th

Cir.)(en banc) cert. denied, 502 U.S. 951 (1991)). For starters,
- 4 -

Williams does not claim that he would have pled differently had he

been informed of the applicable maximum. See Bond, 87 F.3d at 702.

Furthermore, the instance of a defendant being sentenced to

less than what he was informed was his maximum penalty is “a

prototypical case of harmless error”. United States v. Pierce, 5

F.3d 791, 793 (5th Cir. 1993). Pierce was informed that his

maximum prison term was 18 years, when in fact it was 38 years. He

was sentenced to six years, and therefore could not show that he

was harmed by not being informed of the possible 38-year maximum.

There are no meaningful distinctions between Pierce and this

case. Williams was told that the maximum he could receive was two

ten-year sentences. He was sentenced to 210 months, or 17.5 years,

less than the 20 year maximum of which he was informed. 

B.

Williams next raises, for the first time on appeal, a

constitutional challenge to § 922(g)(1) (felon in possession of

firearm). We review such belated challenges only for plain error.

E.g., United States v. Spires, 79 F.3d 464, 465-66 (5th Cir. 1996).

Williams acknowledged at oral argument that this point is

presented solely to preserve it for possible Supreme Court review.

In any event, there was no error; the challenged statute has been

upheld by the Supreme Court, and this court. See United States v.

Dickey, 102 F.3d 157, 163 (5th Cir. 1996)(“we are bound by the

Supreme Court’s decision in Scarborough v. United States, 431 U.S.

563, 575 (1977), that the felon in possession of a firearm statute

is constitutional under the Commerce Clause”).
- 5 -

C.

Finally, Williams contends that his above-referenced state

felony conviction for enticing a child for the purpose of sodomy

was not a “violent felony” in that, contrary to § 924(e)(2)(B)(ii),

it did not involve “conduct that present[ed] a serious potential

risk of physical injury to another”. We review such a contention

de novo. E.g., United States v. Martinez-Cortez, 988 F.2d 1408,

1410 (5th Cir.), cert. denied, 510 U.S. 1013 (1993). And, in doing

so, we generally do not look to the specific facts underlying the

conviction. Section “924(e)(2)(b)(ii) ..., like the rest of the

enhancement statute, ... generally requires the ... court to look

only to the fact of conviction and the statutory definition of the

prior offense.” Taylor v. United States, 495 U.S. 575, 602 (1990).

No actual force is required for the state statute to be

violated. Nevertheless, the conduct presents the type of threat

envisioned by § 924(e). That section includes as violent felonies

not just those which involve the actual use of force, but, as

quoted above, also those which involve “conduct that presents a

serious potential risk of physical injury to another”. 18 U.S.C.

§ 924(e)(2)(B)(ii) (emphasis added). This risk to another is

inherent in Williams’ prior felony conviction, regardless of the

fact that he never actually had to have contact with the child, or

even be alone with the child, to violate the state criminal

statute. 

The former 1925 TEX. CRIM. STAT. 535(b) made it a crime, inter

alia, “for any person with lascivious intent to entice, allure,
- 6 -

persuade, or invite, or attempt to entice, allure, persuade or

invite, any child under fourteen (14) years of age to enter any

vehicle, room, house, office or other place for the purpose of

proposing” sodomy or other specified sexual acts, “or for the

purpose of committing an aggravated assault on such child”. It

thus contemplated a situation in which, for example, an adult

attempts to lure the child into his home.

As noted, Williams’ conviction was under the for-purpose-ofsodomy element. As the district court stated, “[g]iven the tender

age of the victims described in the statute, given the nature and

probability that such a victim, if sodomy were attempted against

him, would attempt to avoid being sodomized, and given the fact

that many forms of sodomy by their nature are assaultive because

they constitute batteries, that is, physical contact without the

consent of another person, that is, offensive physical conduct”,

the offense proscribed by the Texas statute is “violent”. 

Furthermore, our court has noted that the sodomy need not be

in progress to put the child in danger: “when an older person

attempts to sexually touch a child under the age of fourteen, there

is always a substantial risk that physical force will be used to

ensure the child’s compliance”. United States v. Velazquez-Overa,

100 F.3d 418, 422 (5th Cir. 1996) (quoting United States v. ReyesCastro, 13 F.3d 377, 379 (10th Cir. 1993)(emphasis added, internal

quotation marks omitted)). Velazquez-Overa addressed attempted

sodomy; its language, however, is equally applicable where, as
- 7 -

here, the attempt is made through invitation or enticement, as

further discussed below.

In short, the Texas statute under which Williams was convicted

concerns potential, if not immediate, risk of physical injury to

children as a direct result of attempts to entice them to, inter

alia, sexual acts. In that respect, the dangers recognized in

Velazquez-Overa are present.

The cases cited by Williams are inapposite. He points in

particular to United States v. Martinez, 954 F.2d 1050 (5th Cir.

1992), and United States v. Dolt, 27 F.3d 235 (6th Cir. 1994).

In Martinez, our court held that a prior conviction for

attempted burglary did not constitute a violent felony. We stated

that attempted burglary differed from burglary (one of the violent

felonies listed in § 924(e)(2)(B)(ii)) in that, for the former, it

was possible that the felon never came close to perpetrating the

substantive crime. Because he never had to enter a building or

habitation, he would not come into contact with occupants, and the

potential for physical injury was therefore lessened. Martinez,

954 F.2d at 1053-54.

Unlike an attempted burglary, which may be committed miles

from the targeted premises and the persons in it, the former 1925

TEX. CRIM. STAT. 535(b) requires interaction with the victim

(“entice, allure, persuade, or invite”). In the light of the

intended victim’s youth, there is a significant likelihood that the

perpetrator would succeed in enticing the victim into a situation

that would produce violence. In other words, Williams’ state crime
- 8 -

is an actual, not an attempted, act — enticing, alluring,

persuading or inviting. Inviting and enticing a minor to a house,

or other place, to commit sodomy, or the other listed acts, falls

within the definition of a “violent felony”.

United States v. Dolt held that the state offense of

solicitation of a controlled substance offense does not constitute

an actual controlled substance offense for purposes of Sentencing

Guideline § 4B1.1. Dolt deals with the definition of a controlled

substance offense. Such a category is obviously different from

that at issue. Furthermore, controlled substance offenses are of

a particular type, involving very similar types of transactions.

“Violent felonies”, on the other hand, is a deliberately broad

classification of offenses, intended to encompass many different

types of actions which, inter alia, “ present[] a serious potential

risk of physical injury to another”. 18 U.S.C. § 924(e)(2)(B)(ii).

Under the Texas statute, the solicitation is a substantive

offense. In sum, as proscribed by former 1925 TEX. CRIM. STAT.

535(b), “for any person with lascivious intent to entice, allure,

persuade, or invite” a child under age 14 for the purpose of

committing sodomy, or the other listed acts, is a scenario that, as

described in 18 U.S.C. § 924(e)(2)(B)(11), “involves conduct that

presents a serious potential risk of physical injury to another”.

III.

For the foregoing reasons, the judgment is 

AFFIRMED.