### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 senten c e 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 pri s o n . H e c hallenges his careeroffender status , th e district court’s finding that he obstructed justice, and the denial of credit for acceptance of responsibility. First, McDonald conte n d s th a t he was wrongly sentenced as a career offender because his prior Texas conviction for evading arrest in a motor vehicle U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June27 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-11106 Document: 00511521795 Page: 1 Date Filed: 06/27/2011No. 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 “viole nt f e lony” 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 Ci r . 2 0 1 1 )

. Harrimon thus forecloses McDonald’s c o n t e n t i o n that the prior crime was not a crime of violence. In his second c o n t e nt i on, McDonald argues that his offense level should not have been increased for obstruction of justice. This contention is not relevant to McDonald’s offense lev e l, 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 McDonal d k n e w n o thing 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 c o n t ends that he should have been awarded credit for acceptance of r e s p onsibility despite his obstruction. Absent extraordinary

c i r cumstances, obstruction of justice shows that a defendant has not accep t e d

r e s p o nsibility, 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 eff o rts 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