IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11106

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WAYLON MCDONALD,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CR-21-2

Before JOLLY, GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Waylon McDonald appeals the sentence imposed after he pleaded guilty

to bank robbery and conspiracy to commit bank robbery. He was sentenced as

a career offender to a total of 262 months in prison. He challenges his careeroffender status, the district court’s finding that he obstructed justice, and the

denial of credit for acceptance of responsibility.

First, McDonald contends that he was wrongly sentenced as a career

offender because his prior Texas conviction for evading arrest in a motor vehicle

United States Court of Appeals

Fifth Circuit

F I L E D

June 27, 2011

Lyle W. Cayce

Clerk

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.

Case: 10-11106 Document: 00511521795 Page: 1 Date Filed: 06/27/2011
No. 10-11106

was not a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). In United States v.

Harrimon, 568 F.3d 531, 534-37 (5th Cir. 2009), we held that the Texas crime of

evading arrest in a motor vehicle is a “violent felony” under 18 U.S.C.

§ 924(e)(2)(B)(ii). The relevant residual definitions of “violent felony” under

§ 924(e)(2)(B)(ii) and “crime of violence” under § 4B1.2(a)(2) are interchangeable. 

See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). Harrimon thus

forecloses McDonald’s contention that the prior crime was not a crime of

violence. 

In his second contention, McDonald argues that his offense level should

not have been increased for obstruction of justice. This contention is not

relevant to McDonald’s offense level, which was determined by his careeroffender status. See § 4B1.1(b). However, the finding of obstruction is relevant

to the denial of credit for acceptance of responsibility, so we address it. 

McDonald wrote several letters to his fellow conspirator, Inequa Rushing,

asking her to state falsely under oath that McDonald knew nothing about the

bank robbery until she came out of the bank with the money. This conduct falls

squarely within the ambit of obstruction of justice. See § 3C1.1, comment. (n.4). 

The district court did not commit any error, clear or other, by finding obstruction

of justice. See United States v. Pofahl, 990 F.2d 1456, 1481-82 (5th Cir. 1993). 

McDonald finally contends that he should have been awarded credit for

acceptance of responsibility despite his obstruction. Absent extraordinary

circumstances, obstruction of justice shows that a defendant has not accepted

responsibility, and the denial of credit for acceptance of responsibility will be

affirmed unless it is “without foundation.” United States v. Juarez-Duarte, 513

F.3d 204, 211 (5th Cir. 2008). The record soundly refutes McDonald’s assertion

that he abandoned his efforts to obstruct justice. He thus shows no

extraordinary circumstances warranting credit for acceptance of responsibility,

and there was a firm foundation for the denial of that credit. See id. The district

court’s judgment is AFFIRMED. 

2

Case: 10-11106 Document: 00511521795 Page: 2 Date Filed: 06/27/2011