United States Court of Appeals

for the Fifth Circuit

No. 20-11087

United States of America, 

Plaintiff—Appellee,

versus

Cyze Ajjan Rodgers, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CR-565

ON PETITION FOR REHEARING

Before Clement, Higginson, and Engelhardt, Circuit Judges.

Per Curiam:*

Cyze Ajjan Rodgers was sentenced to 116 months of imprisonment 

and three years of supervised release for possession of a firearm by a 

convicted felon. See 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Rodgers 

* 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opinion should not be published and is not precedent except under the limited 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

August 9, 2021

Lyle W. Cayce

Clerk

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appealed, arguing that the district erred in considering his two prior Texas 

assault offenses as “crimes of violence.” On June 4, 2021, the court held that 

Rodgers’ “crime of violence” argument was foreclosed. United States v. 

Rodgers, 849 F. App’x 139 (5th Cir. 2021) (mem.). Then, on June 10, 2021, 

the Supreme Court decided Borden v. United States, 141 S. Ct. 1817 (2021). 

In Borden, the Court held that the Armed Career Criminal Act’s “violent 

felony” elements clause—which requires a finding of the “use of physical 

force against the person of another”—does not include “offenses 

criminalizing reckless conduct.” Id. at 1825.

Following Borden, Rodgers petitioned for panel rehearing, claiming

that Borden’s holding necessarily applies to him. We agree that it is 

appropriate to grant Rodgers’ petition for rehearing and withdraw our prior 

opinion, United States v. Rodgers, 849 F. App’x 139 (5th Cir. 2021) (mem.), 

because our prior opinion was based solely on grounds that Borden now calls 

into question. In issuing this substitute opinion, however, we need not reach

Borden because: (1) Rodgers cannot establish the third prong of plain error 

review even if Borden applies; and (2) any guideline error is harmless.

1

“We take the district court at its clear and plain word.” United States

v. Castro-Alfonso, 841 F.3d 292, 298 (5th Cir. 2016). The district court 

explicitly stated, twice, that it would have imposed the same sentence even if 

it erred in its guideline calculations—a sentence near or equivalent to the 

1 See Fed. R. App. P. 40 (a)(4)(A) (“If a petition for panel rehearing is 

granted, the court may . . . make a final disposition of the case without 

reargument.”).

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statutory maximum. See ROA.144 (“[E]ven if I got the guidelines

calculations wrong, I would have imposed the same sentence, had I not made 

that mistake, and I would have done so for the same reasons that I articulated 

just previously.”); ROA.230 (“[E]ven if the correct guideline range was not 

considered, the Court would have imposed the same sentence had it not 

made the error, and it would have done so for the same reasons given during 

the sentencing hearing regardless of the applicable guideline range.”); see also 

ROA.141–42 (considering the § 3553(a) factors and noting that the court was 

particularly concerned with the defendant’s criminal history and the need to 

protect the public from the defendant); ROA.136 (“I was dead set on [the 

statutory maximum] when we came in today.”).

Notwithstanding the district court’s clarity, Rodgers contends that 

the district court intended to impose a within-guideline sentence. As we read 

the record, that is not the case. At sentencing, the government asked the 

district court to impose the statutory maximum sentence. The initial 

guideline range was 110 to 137 months, but the statutory maximum capped 

the range at 120 months. After defense counsel argued for a deviation, the 

court stated that it was “dead set on 120”—the statutory maximum—“when 

we came in today.” ROA.136. The court then referenced the “stat max” as 

its starting point and deviated from that maximum by four months after 

defense counsel argued that Rodgers was entitled to leniency for foregoing 

trial. While the court noted that the sentence imposed was within the 

guideline range, it further noted that it would have given the same sentence 

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regardless of the range because of Rodgers’ violent history. Thus, Rodgers’ 

argument is unavailing.

Given that the district court was “dead set” on issuing a maximum, 

or near-maximum,sentence, Rodgers cannot establish that any error affected 

his substantial rights. See United States v. White, 495 F. App’x 549, 551 (5th 

Cir. 2012) (per curiam) (holding that the defendant could not establish that 

an assumed error affected his substantial rights when he could not point to 

anything in the record “to show that the district court would have imposed a 

lower sentence” but for the error). Likewise, any guideline error was 

harmless. See United States v. Groce, 784 F.3d 291, 296 (5th Cir. 2015)

(“Whether the district court applied the maximum allowable sentence is 

likewise relevant to the harmless-error inquiry.” (collecting cases)), 

superseded by regulation as stated in United States v. Segura-Resendez, 812 F. 

App’x 283 (5th Cir. 2020) (mem); see also United States v. Jones, 435 F.3d 

541, 543 (5th Cir. 2006) (holding that any guideline calculation error was 

rendered harmless when the district court “would have imposed the 

maximum statutory sentence”), cert. denied, 547 U.S. 1029 (2006). 

Consequently, we re-affirm Rodgers’ sentence. 2

IT IS ORDERED that the petition for panel rehearing is 

GRANTED.

2 The court is aware that if Rodgers succeeded on his Borden claim, then his 

guideline range could be significantly reduced. Nonetheless, the district court 

emphasized that it was determined to impose the statutory maximum; thus, any 

change in the applicable guideline range would not change Rodgers’ sentence.

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IT IS FURTHER ORDERED that Rodgers’ sentence is 

AFFIRMED.

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