United States Court of Appeals

for the Fifth Circuit

No. 20-60148

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

David Steve Fields, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:18-CR-159-1

Before Higginbotham, Jones, and Costa, Circuit Judges.

Per Curiam:*

David Steve Fields appeals his conviction of possession of a firearm 

by a convicted felon and his 199-month sentence under the Armed Career 

Criminal Act (ACCA). He first challenges the denial of a motion to withdraw 

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opinion should not be published and is not precedent except under the limited 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

December 9, 2020

Lyle W. Cayce

Clerk

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2

his guilty plea, which we review for abuse of discretion. United States v. 

McKnight, 570 F.3d 641, 645 (5th Cir. 2009).

According to Fields, several factors listed in United States v. Carr, 740 

F.2d 339 (5th Cir. 1984), supported his motion. While we may agree that he 

promptly filed the motion, we reject the contentions that he lacked close 

assistance of counsel and that the plea was involuntary and unknowing.

1

 See 

Missouri v. Frye, 566 U.S. 134, 142 (2012); Blackledge v. Allison, 431 U.S. 63, 

74 (1977); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998). Fields’s 

own testimony and signature on the plea agreement establish that, prior to 

his guilty plea, counsel reviewed with him and answered his questions about

the indictment and the elements of the offense, the Government’s evidence, 

the statutory maximum and mandatory minimum 15-year sentence, the terms 

of the plea agreement and supplement, and the appeal waiver. Additionally, 

as the district court noted in finding that Fields had the close assistance of 

able counsel, the attorney negotiated a second plea deal and filed several 

motions on Fields’s behalf. The plea colloquy shows that Fields understood 

the sentencing range he faced, was fully satisfied with counsel’s 

representation, and pleaded guilty of his own free will because he was guilty. 

We find no abuse of discretion in the denial of the motion to withdraw his 

guilty plea. See McKnight, 570 F.3d at 645; United States v. Bounds, 943 F.2d 

541, 543 (5th Cir. 1991).

Next, Fields contends that the district court improperly relied on the 

presentence report (PSR) to apply the ACCA and erroneously determined 

that his prior Florida aggravated assault convictions qualified as predicates 

for the enhancement. The Government contends that the broad appeal 

1 We do not consider arguments challenging the voluntariness of the plea raised for 

the first time in Fields’sreply brief. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th 

Cir. 2005).

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waiver bars consideration of these arguments. Fields replies that he can 

challenge the ACCA enhancement notwithstanding the appeal waiver 

because the resulting sentence exceeded the statutory maximum of 10 years

under 18 U.S.C. § 924(a)(2). We agree. See United States v. Leal, 933 F.3d

426, 430-31 (5th Cir.), cert. denied, 140 S. Ct. 628 (2019); United States v. 

Barnes, 953 F.3d 383, 388-89 & n.10 (5th Cir.), cert. denied, 2020 WL 5883752

(U.S. Oct. 5, 2020); United States v. Harris, 434 F.3d 767, 770 (5th Cir. 2005).

With respect to his objection to the district court’s reliance on the 

PSR to find that his prior offenses were ACCA predicates, Fields does not 

dispute the existence of the convictions but their characterization as violent 

felonies. We review the preserved objection de novo. See United States v. 

Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005). Fields does not 

assert that it was necessary to apply the modified categorical approach to 

narrow the offense of conviction before determining that any of his prior 

offenses were violent felonies. In other words, he does not contend that the 

statutes of conviction were divisible with alternative elements that made it 

necessary to consult the documents approved in Shepard v. United States, 544 

U.S. 13, 16 (2005). See Descamps v. United States, 570 U.S. 254, 257 (2013); 

United States v. Rosa, 507 F.3d 142, 151 (5th Cir. 2007). He thus fails to show 

error by the district court, which can determine whether a prior offense is a 

violent felony under the categorical approach based on the fact of the prior 

convictions and the statutory definitions of the offenses. See Rosa, 507 F.3d 

at 151.

According to Fields, Florida aggravated assault is not a violent felony 

under the ACCA’s force clause, 18 U.S.C. § 924(e)(2)(B)(i), because a 

conviction can be obtained upon proof of recklessness or culpable negligence

and the force clause requires an intentional act. Plain error review applies to 

this issue as no objection on these grounds was lodged in the district court. 

See United States v. Davis, 487 F.3d 282, 284 (5th Cir. 2007). We find no 

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error, plain or otherwise, because the use of force requirement in 

§ 924(e)(2)(B)(i) is satisfied by a mens rea of recklessness, United States v. 

Vickers, 967 F.3d 480, 485-86 (5th Cir. 2020), and culpable negligence under 

Florida law is “a mental state equivalent to at least recklessness,” United 

States v. Chan-Gutierrez, 368 F. App’x 536, 538 (5th Cir. 2010) (citing

Charlton v. Wainwright, 588 F.2d 162, 164 (5th Cir. 1979)). We do not 

consider the argument raised for the first time in Fields’s reply brief that the 

threat of violence punishable under the Florida statute includes conduct that 

does not involve physical force. See Jackson, 426 F.3d at 304 n.2.

To the extent Fields also contends that his prior aggravated battery 

offense is not a violent felony, he offers no authority for the contention. “It 

is not enough to merely mention or allude to a legal theory.” United States v. 

Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (internal quotation marks and 

citation omitted). “A party that asserts an argument on appeal, but fails to 

adequately brief it, is deemed to have waived it.” Id. (internal quotation 

marks and citation omitted).

Finally, to the extent Fields attempts to assert a freestanding claim 

that his trial counsel was ineffective for advising him to accept the plea 

agreement (separate from his arguments about the denial of the motion to 

withdraw his plea), we decline to consider the issue without prejudice to 

Fields raising it on collateral review. See United States v. Isgar, 739 F.3d 829, 

841 (5th Cir. 2014).

AFFIRMED.

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