United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10093

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

James Henry Kelley, III, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC Nos. 4:20-CR-243-1, 4:22-CV-81

______________________________

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

James Henry Kelley, III, pled guilty, without a plea agreement, to 

possession of 50 grams or more of a mixture and substance containing a 

detectable amount of methamphetamine with the intent to distribute it, in 

violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B). The district court granted 

Kelley’s motion for a downward variance based on a policy disagreement

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

November 7, 2023

Lyle W. Cayce

Clerk

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No. 23-10093

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with the methamphetamine guidelines. Relevant here, the district court 

overruled the Government’s objection to the probation officer’s 

recommendation not to apply a two-level reckless endangerment 

enhancement under U.S.S.G. § 3C1.2; the district court agreed that an 

enhancement was not warranted based on Kelley’s conduct. The district 

court sentenced Kelley to 180 months of imprisonment and imposed a fouryear term of supervised release.

Kelley now challenges his guilty plea and sentence, arguing that both 

were based on erroneous material information or assumptions. He also filed 

an opposed motion requesting that this court take judicial notice of the docket 

sheet and documents filed in a personal injury lawsuit that he filed against the 

City of Fort Worth—documents that were not before the district court but

which he contends show that his conduct was not reckless, contrary to the 

Government’s arguments at sentencing. His opposed motion to modify the 

record on appeal by supplementing the record with those same documents 

was previously denied by this court.

Contrary to Kelley’s assertion, the documents filed in Kelley’s 

personal injury lawsuit are not necessary to resolve the appeal. Nevertheless, 

we take judicial notice of the fact that Kelley filed a personal injury lawsuit 

against the City of Fort Worth in Tarrant County, Texas, on August 24, 

2022, seeking damages for the injuries he sustained during an August 24, 

2020 vehicular collision. In all other respects, the motion is denied.

With respect to his guilty plea, Kelley raises no argument that his 

guilty plea was induced by threats, improper coercion, or false promises. 

Thus, his guilty-plea challenge does not implicate the voluntary nature of his 

plea but only whether his plea was knowing, which requires a full 

understanding of the essential components and consequences of a guilty plea. 

See United States v. Hernandez, 234 F.3d 252, 254–55 & n.3 (5th Cir. 2000). 

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As an initial matter, the Government correctly argues that, insofar as Kelley 

raised a “thinly-veiled” claim under Brady v. Maryland, 3737 U.S. 83 (1963), 

Kelley’s unconditional guilty plea waived any such claim, see United States v. 

Conroy, 567 F.3d 174, 178–79 (5th Cir. 2009) (citations omitted).

As for whether Kelley’s plea was knowing, the record reflects that the 

magistrate judge complied with the requirements of Federal Rule of Criminal 

Procedure 11, and that Kelley understood the nature of the charges, i.e., the 

elements of the offense, as well asthe consequences of his guilty plea, and the 

nature of the constitutional protections he was waiving. See Boykin v. 

Alabama, 395 U.S. 238, 244 (1969); United States v. Urias-Marrufo, 744 F.3d 

361, 366 (5th Cir. 2014). Kelley has not identified any error by the magistrate 

judge, much less shown a reasonable probability that, but for the error, he 

would not have entered a guilty plea. See United States v. Dominguez Benitez, 

542 U.S. 74, 83 (2004). Moreover, Kelley has not shown that his guilty plea 

was based on an erroneous fact that was material to whether he knowingly 

possessed a controlled substance containing 50 grams or more of a detectable 

amount of methamphetamine with the intent to distribute it. Accordingly, 

we find that Kelley’s guilty plea was knowing.

With respect to his sentence, Kelley argues that the district court 

committed a procedural error by basing the sentence on erroneous material 

information or assumptions regarding the collision. We find that Kelley 

preserved this issue on appeal by arguing in the district court that the 

presentence report’s description of the collision between his motorcycle and 

the patrol car was not accurate—specifically, by arguing that it was the fault 

of the police officer, who did not pull away from the curb “to clear a path” 

for the pursuit of Kelley but instead positioned the patrol car directly in the 

path of Kelley’s motorcycle. See United States v. Neal, 578 F.3d 270, 272 (5th 

Cir. 2009).

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We review a sentencing challenge under a deferential abuse-ofdiscretion standard regardless of whether the sentence is inside or outside 

the Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007). We 

“must first ensure that the district court committed no significant procedural 

error.” Id. Procedural errors include “selecting a sentence based on clearly 

erroneous facts.” Id. “Sentences based upon erroneous and material 

information or assumptions violate due process.” United States v. Gentry, 

941 F.3d 767, 788 (5th Cir. 2019) (internal quotation marks and citation 

omitted).

Kelley has not satisfied his burden of establishing that the district 

court relied on erroneous information in choosing his sentence. See United 

States v. Warren, 720 F.3d 321, 331 (5th Cir. 2013). True enough, the district 

court stated—in response to Kelley’s argument that the collision was not 

caused by his reckless conduct but by the officer’s reckless conduct—that it 

could not “hold it in [Kelley’s] favor that he didn’t yield. I mean, he ran, so 

he’s put in motion what happened.” But Kelley has not shown on appeal 

that the statements that he failed to yield and that he ran from officers were 

based on clearly erroneous facts. And though the Government urged the 

district court to impose a 188-month sentence based in part on Kelley’s 

reckless conduct, the district court gave no indication that it agreed with the 

Government’s assertion that Kelley was reckless and put others in danger. 

Indeed, the court rejected that argument in overruling the Government’s 

objection to the decision not to apply an enhancement or upward departure 

or variance based on Kelley’s conduct.

Finally, it is plausible from the record as a whole that the district court 

did not rely on erroneous facts regarding the collision in imposing the 180-

month sentence, which though higher than the 151-month sentence Kelley 

requested was lower than the sentence recommended by the Government. 

In imposing the sentence, the district court made no mention of Kelley’s 

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conduct as characterized by the Government. Rather, the court stated that it 

considered all of the sentencing factors set forth in 18 U.S.C. § 3553(a), as 

well as the conduct that Kelley admitted in his factual resume. Kelley has not 

shown that the district court relied on any erroneous material facts in 

imposing the sentence or otherwise committed a procedural error at 

sentencing.

The judgment of the district court is AFFIRMED. The motion for 

judicial notice is GRANTED in part and DENIED in part.

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