Case: 16-40273      Document: 00513798522         Page: 1    Date Filed: 12/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-40273
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 15, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JASON WAYNE MCDONNEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-803-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Jason Wayne McDonnel appeals the 180-month sentence imposed
following his guilty plea conviction of being a felon in possession of a firearm
under 18 U.S.C. § 922(g). McDonnel claims that the district court erred in
sentencing him as an armed career criminal under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e).             He contends that the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 16-40273

committed error in enhancing his sentence under the ACCA because the
Government did not satisfy its burden in establishing that his three predicate
offenses occurred on occasions different from one another. McDonnel further
contends that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), the district
court reversibly erred by enhancing his sentence under the ACCA, because his
indictment did not charge, a jury did not find, and he did not admit, the
predicate facts necessary for an ACCA enhancement.
      Because McDonnel’s claims concerning the district court’s application of
the ACCA were not presented in district court, review is only for plain error.
See United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003) (“When
a defendant objects to his sentence on grounds different from those raised on
appeal, we review the new arguments raised on appeal for plain error only.”).
To show plain error, McDonnel must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009); United States v. Henao-Melo, 591 F.3d 798, 801 (5th Cir.
2009). “Even then, this court does not exercise its discretion to correct the error
unless it seriously affects the fairness, integrity, or public reputation of judicial
proceedings and result[s] in a miscarriage of justice.” Henao-Melo, 591 F.3d at
802 (internal quotation marks and citations omitted).
      Under § 924(e)(1), a defendant convicted of being a felon in possession of
a firearm is subject to a minimum sentence of 15 years if he has three prior
convictions for “a violent felony or a serious drug offense, or both, committed
on occasions different from one another.” McDonnel’s sentence was enhanced
due to his two prior Texas convictions for delivery of a controlled substance and
attempted taking of a weapon from a peace officer, and his prior Wisconsin
offense for burglary. The Government established those convictions were for
violent felonies and/or serious drug offenses that occurred on separate



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                                 No. 16-40273

occasions, by providing (i) as concerns the Wisconsin burglary conviction, the
criminal complaint, information, and judgment and (ii) as concerns the two
Texas convictions, the indictments and judgments. See United States v. Fuller,
453 F.3d 274, 279 (5th Cir. 2006); United States v. Barlow, 17 F.3d 85, 89 (5th
Cir. 1994). “Once the Government establishes the fact of a prior conviction
based upon a guilty plea, the defendant must prove the invalidity of the
conviction by a preponderance of the evidence.” Barlow, 17 F.3d at 89.
      McDonnel did not meet this burden. McDonnel neither denied that the
offenses underlying the three convictions at issue occurred on different
occasions nor introduced any evidence, much less a preponderance, that they
occurred on the same occasion. Additionally, as concerns the convictions at
issue on this appeal—the Texas drug and weapon convictions—McDonnel (i)
did not dispute the existence of those convictions; (ii) did not dispute that the
Texas drug conviction constituted a “serious drug offense;” (iii) recognized that
any argument that his Texas weapon conviction was not a “violent felony” was
foreclosed by this court’s precedent, see United States v. Avalos-Martinez, 700
F.3d 148 (5th Cir. 2012); and (iv) did not dispute that his guilty pleas
concerning those convictions were entered with adequate procedural
safeguards. Based on the evidence presented, the district court consulted only
Shepard-approved sources, see Shepard v. United States, 544 U.S. 13, 26
(2005), concluded from those sources that McDonnel’s offenses occurred on
different occasions, and applied the ACCA enhancement. Given McDonnel’s
failure to offer evidence to the contrary, the district court’s findings did not
constitute clear or obvious error.
      Citing Fuller, 453 F.3d 274, and United States v. Constante, 544 F.3d
584, 587 (5th Cir. 2006), McDonnel argues that the burden always remained
with the Government to prove that the subject offense occurred on different



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                                   No. 16-40273

occasions.   However, in each of those cases, the defendant had raised an
objection in the district court to the ACCA enhancement, and, after the district
court overruled the objections, appealed to this court raising the same issues.
Fuller, 453 F.3d at 278; Constante, 544 F.3d at 584-85. Applying a de novo
standard of review in each case, this court disagreed with the district court and
implicitly found that the defendant in each case had carried his burden of proof
in the district court through some combination of evidence and argument.
Fuller, 453 F.3d 278-79; Constante, 544 F.3d at 585, 586-87. In contrast,
because McDonnel failed to offer any evidence or object to the ACCA
enhancement on the grounds raised on appeal, the record is simply insufficient
to establish that the district court, in finding that the subject offenses were
committed on different occasions, committed any error that is clear or obvious.
See Puckett, 129 S. Ct. at 1429.
      McDonnel’s further contention that, under Apprendi, the facts
underlying his three prior convictions “should have been charged in the
indictment, and either proved to a jury or admitted by him, before they could
be used to raise the statutory maximum sentence applicable to him,” has been
foreclosed. Apprendi, 530 U.S. at 489-90; Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998); United States v. Juarez-Duarte, 513 F.3d 204, 211
(5th Cir. 2008); United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005).
      AFFIRMED.




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