IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40200

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TIMOTHY WAYNE HARRIS, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:12-CV-47-1

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Timothy Wayne Harris, Jr., appeals his conviction on five counts of a 

superseding indictment and his within–guidelines sentence totaling 522 

months. A jury found him guilty of conspiracy to carjack, two counts of 

carjacking, and two counts of using or carrying a firearm during and in relation 

to the carjacking offenses.

 

* 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 23, 2015

Lyle W. Cayce

Clerk

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No. 15-40200

2

Harris argues that the district court failed to arraign him on the 

superseding indictment. Because Harris did not raise this objection until after 

the trial was completed, we review for plain error. See FED. R. CRIM. P. 52(b);

Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain error, a 

defendant must show (1) an error; (2) that is clear or obvious; and that (3) 

affects his substantial rights. Puckett, 556 U.S. at 135. If he makes such a 

showing, we have the discretion to correct the error only if it seriously affects 

the fairness, integrity, or public reputation of judicial proceedings. Id.

Both parties note that after the jury was sworn, the district court read 

the indictment in open court. Harris, who was present, then pleaded not guilty 

to each count of the superseding indictment. This arguably satisfies the notice 

requirements of the Sixth Amendment and Federal Rule of Criminal Procedure 

10(a)(2) and the presence requirement of Rule 43(a)(1). Harris therefore has 

not shown clear or obvious error that affected his substantial rights. See 

Puckett, 556 U.S. at 135.

Harris also challenges the sufficiency of the evidence to support his 

convictions on the firearms counts. Because Harris did not raise this issue in 

the district court, we again review for plain error. See United States v. 

Delgado, 672 F.3d 320, 330-32 (5th Cir. 2012) (en banc). Harris argues that in 

light of the definition of a firearm, 18 U.S.C. § 921(a)(3), the Government was 

required to prove that the firearm was not an antique. Although this court has 

not addressed the issue, every circuit to consider the question has held that the 

antique weapons exception is “an affirmative defense that must initially be 

raised by sufficient evidence to justify shifting a burden of proof to the 

government.” United States v. Lawrence, 349 F.3d 109, 122-23 (3rd Cir. 2003) 

(citing cases). Given these numerous circuits that have rejected Harris’s 

position, and the fact that this Circuit has not yet addressed the issue, any 

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error cannot be clear or obvious. See United States v. Evans, 587 F.3d 667, 671 

(5th Cir. 2009).

As to his sentence, Harris argues that the district court procedurally 

erred by applying the two-level enhancement for obstruction of justice 

pursuant to U.S.S.G. § 3C1.1 (Nov. 2014). Because Harris raised it in the 

district court, we review de novo his argument that the district court must

make a finding of malingering related to a competency hearing before the 

sentencing. See United States v. Claiborne, 676 F.3d 434, 437 (5th Cir. 2012). 

His argument is not supported by United States v. Aldawsari, 740 F.3d 1015, 

1021 (5th Cir.), cert. denied, 135 S. Ct. 160 (2014). It is contradicted by United 

States v. Greer, 158 F.3d 228, 238 (5th Cir. 1998), which indicates that a finding 

that a defendant malingered in order to avoid trial may be made at sentencing.

And, of course, the normal course is to address Sentencing Guidelines issues 

during the sentencing hearing. We therefore find no error in the stage of the 

proceeding at which the district court made this finding of obstruction.

For the first time on appeal, Harris argues that the district court’s 

finding is unsupported by any evidence that he had a specific intent to 

malinger or that he was malingering in order to avoid the judicial system. 

“When a defendant object[ed] to his sentence on grounds different from those 

raised on appeal, we review the new arguments raised on appeal for plain error 

only.” United States v. Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) (internal 

quotation marks and footnoted citation omitted). The district court adopted 

the unrebutted findings of the presentence report. See United States v. OchoaGomez, 777 F.3d 278, 282 (5th Cir. 2015); United States v. Alaniz, 726 F.3d 

586, 619 (5th Cir. 2013). The court’s determination that Harris obstructed 

justice by malingering to avoid trial is a factual finding that can never 

constitute plain error. See Claiborne, 676 F.3d at 438; see also United States 

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v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Even aside from the plain error 

posture, we do not find that the district court clearly erred in finding that 

Harris was malingering.

AFFIRMED.

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