IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50532

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BYRON KEITH MOORE,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 6:14-CR-102-1

Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Byron Keith Moore appeals his conviction of possession of a firearm by a 

convicted felon and his sentence of 210 months in prison. See 21 U.S.C § 924.

According to Moore, the evidence presented at trial was insufficient to 

support his conviction. Because Moore preserved this issue for appeal, we will 

uphold the jury’s verdict only if a reasonable trier of fact could conclude beyond 

a reasonable doubt that the evidence established that Moore was previously 

 

* 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

October 24, 2017

Lyle W. Cayce

Clerk

 Case: 16-50532 Document: 00514208962 Page: 1 Date Filed: 10/24/2017
No. 16-50532

2

convicted of a felony, that he knowingly possessed a firearm, and that the 

firearm traveled in or affected interstate commerce. See Jackson v. Virginia, 

443 U.S. 307, 319 (1979); United States v. Anderson, 559 F.3d 348, 353 (5th 

Cir. 2009); 18 U.S.C. §§ 922(g)(1), 924(a)(1)(B). Moore challenges only the

evidence of his knowing possession of the firearm.

The jury reasonably inferred that the presence of Moore’s wallet, his 

current prescription, and men’s clothing in the drawer with the gun, combined 

with the DNA evidence on the gun, established that Moore knew of and had 

access to, if not control over, the firearm. See Henderson v. United States, 135 

S. Ct. 1780, 1784 (2015); United States v. Ybarra, 70 F.3d 362, 365 (5th Cir.

1995). A reasonable trier of fact could have concluded from this evidence that 

Moore knowingly possessed the firearm. See United States v. De Leon, 170 

F.3d 494, 496 (5th Cir. 1999); United States v. Wright, 24 F.3d 732, 735 (5th 

Cir. 1994).

Moore additionally challenges the application of the armed career 

criminal provisions of § 924(e) and U.S.S.G. § 4B1.4, but presents argument to 

this court that differ from those he made in the district court and we, therefore, 

review only for plain error. See United States v. Dominguez-Alvarado, 695 F.3d 

324, 327 (5th Cir. 2012). To show plain error, Moore must show a forfeited 

error that is clear or obvious and that affects his substantial rights. See United 

States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir. 2009). If he makes such a 

showing, we may exercise our discretion to correct the error if, “it seriously 

affects the fairness, integrity, or public reputation of judicial proceedings and 

result[s] in a miscarriage of justice.” Id. at 802 (internal quotation marks and 

citations omitted).

Section 924(e)(1) imposes a 15-year mandatory minimum term in prison 

for a person possessing a firearm in violation of § 922(g) who has three prior 

convictions for violent felonies or serious drug offenses. § 924(e)(1). A violent 

 Case: 16-50532 Document: 00514208962 Page: 2 Date Filed: 10/24/2017
No. 16-50532

3

felony is one of a number of enumerated offenses or a felony that “has as an 

element the use, attempted use, or threatened use of physical force against the 

person of another” (the “use of force” clause). § 924(e)(2)(B). Although the 

statutory definition of a violent felony also includes conduct presenting a 

“serious potential risk of physical injury to another,” the Supreme Court has 

held this residual clause to be unconstitutional. Johnson v. United States, 135 

S. Ct. 2551, 2556 (2015). A serious drug offense is an offense prohibited by the 

Controlled Substances Act (21 U.S.C. § 801 et seq.), and other specific statutes, 

and for which the law imposes a maximum term of ten years or more in prison. 

§ 924(e)(2)(A). Section 4B1.4 defines a violent felony and a serious drug offense 

as those terms are defined in § 924(e). See § 4B1.4, cmt. (n.1).

To the extent that the district court may have relied on the presentence 

report (PSR) alone to determine that Moore had at least three prior violent 

felonies or serious drug offenses for the purposes of § 924(e) and § 4B1.4, such 

reliance would be error. See United States v. Garza-Lopez, 410 F.3d 268, 274 

(5th Cir. 2005). However, because Moore specifically indicated that he had no 

dispute with the facts in the PSR, and because the supplemented record on 

appeal confirms the PSR’s descriptions of the relevant offenses, Moore fails to 

show that the district clearly or obviously erred. See Henao-Melo, 591 F.3d at 

801; United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006); United 

States v. White, 465 F.3d 250, 254 (5th Cir. 2006).

Moore similarly fails to show reversible plain error in the district court’s 

characterization of his prior convictions as violent felonies or serious drug 

offenses for purposes of § 924(e) and § 4B1.4. See Henao-Melo, 591 F.3d at 801. 

As to his 1992 narcotics conviction, the supplemented record shows that Moore 

pleaded guilty to one count of violating 21 U.S.C. § 841(a)(1). Section 

841(b)(1)(C) provides a statutory maximum term in prison of 20 years for an 

amount of .64 grams of cocaine base, a schedule II substance. See 21 U.S.C. 

 Case: 16-50532 Document: 00514208962 Page: 3 Date Filed: 10/24/2017
No. 16-50532

4

§ 812(c). Because the offense was one prohibited by the Controlled Substances 

Act (21 U.S.C. § 801 et seq.) and the maximum prison term for the offense was 

more than 10 years, the district court did not err, much less clearly or 

obviously, in treating it as a serious drug offense under the Armed Career 

Criminal Act or § 4B1.4. See § 924(e)(2)(A); § 4B1.4, cmt. (n.1); Henao-Melo, 

591 F.3d at 801.

Turning to Moore’s aggravated assault convictions, assault is not an 

enumerated offense under § 924(e)(2)(B)(ii) or § 4B1.4 by reference. Therefore, 

in light of Johnson, these two convictions qualify as violent felonies under 

§ 924(e)(2)(B) only if Texas aggravated assault with a deadly weapon meets the 

“use of force” clause of § 924(e)(2)(B)(ii). Texas Penal Code § 22.02(a) defines 

aggravated assault as an assault as described in Texas Penal Code § 22.01 and 

the perpetrator, “(1) causes serious bodily injury to another, including the 

person’s spouse; or (2) uses or exhibits a deadly weapon during the commission 

of the assault.” TEX. PENAL CODE § 22.02(a). Section 22.01 states that that a 

person commits an assault by, “(1) intentionally, knowingly, or recklessly 

caus[ing] bodily injury to another, including the person’s spouse; (2) 

intentionally or knowingly threaten[ing] another with imminent bodily injury, 

including the person’s spouse; or (3) intentionally or knowingly caus[ing] 

physical contact with another when the person knows or should reasonably 

believe that the other will regard the contact as offensive or provocative.” TEX.

PENAL CODE § 22.01.

The records in this matter indicate that Moore violated each of the two 

subsections of the Texas aggravated assault statute, first by threatening 

imminent bodily injury by using or exhibiting a deadly weapon in a 2009 

conviction and then by causing a serious bodily injury by shooting an 

individual in a 2011 conviction. See TEX. PENAL CODE § 22.02(a)(1) and (2). 

Both of these convictions qualify as violent felonies under the use of force 

 Case: 16-50532 Document: 00514208962 Page: 4 Date Filed: 10/24/2017
No. 16-50532

5

clause only if, as relevant here and as would be the case under a categorical 

analysis of § 22.02(a), the elements of Texas aggravated assault, and not the

particular facts underlying Moore’s convictions, satisfy the force clause. 

United States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005).

Moore argues that an individual may make an idle threat which would 

not involve the use force and that the infliction of bodily injury may occur 

without the use of force, such as through poison or inviting an unwitting victim 

into traffic. Further, he contends that because bodily injuries may occur 

without the use of force, threatening such injuries similarly would not involve 

force. Moore’s analysis requires us to separate the assault offense from the 

conduct which makes the assault aggravated. We have rejected such an 

analysis asking whether each part of the offense, standing alone, involves

force. See United States v. Ceron, 775 F.3d 222, 229 (5th Cir. 2014); see also

United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015).

In considering aggravated assault as a single offense, subsection (a)(2) of 

the state statute involves the least culpable conduct. TEX.PENAL CODE § 22.02. 

Subsection (a)(2) requires only the use or display of the deadly weapon during 

the assault, whether by injury, threat, or contact, as opposed to actually 

causing serious bodily injury in one of those ways. See TEX. PENAL CODE 

§ 22.02(a). We have been increasingly skeptical of arguments, like Moore’s, 

that rely on theoretical possibilities rather than actual applications of state 

statutes. See Ceron, 775 F.3d at 229. 

Texas case law, read in conjunction with the Supreme Court’s instruction 

on physical force, supports the conclusion that § 22.02 constitutes a violent 

felony. The Supreme Court has explained that, “in the context of a statutory 

definition of ‘violent felony,’ the phrase “physical force” means violent force --

that is, force capable of causing physical pain or injury to another person.” 

Johnson v. United States, 559 U.S. 133, 140 (2010) (italics in original). The 

 Case: 16-50532 Document: 00514208962 Page: 5 Date Filed: 10/24/2017
No. 16-50532

6

Texas Court of Criminal Appeals has noted of the Texas aggravated assault 

statute that both subsections necessarily “involve[] the use of a deadly weapon 

. . . which is anything that in the manner of its use or intended use is capable 

of causing death or serious bodily injury.” Landrian v. State, 268 S.W.3d 532, 

538 (Tex. Crim. App. 2008) (internal quotation marks and citation omitted). 

Likewise, we have noted that, “a deadly weapon, in that it is capable of 

producing death, is an instrument of physical force.” United States v. Velasco, 

465 F.3d 633, 641 (5th Cir. 2006) (U.S.S.G. § 2L1.2(b)(1)(A) case).

In light of this case law and the absence of state case law supporting 

Moore’s hypothetical applications of the state’s aggravated assault statute, 

Moore fails to show that the district court clearly or obviously erred when it 

concluded that his 2009 and 2011 aggravated assault convictions qualify as 

violent felonies under § 924(e) and § 4B1.4. See Henao-Melo, 591 F.3d at 801; 

Guzman, 797 F.3d at 348.

The judgment of the district court is AFFIRMED.

 Case: 16-50532 Document: 00514208962 Page: 6 Date Filed: 10/24/2017