Case: 16-10219      Document: 00513848750         Page: 1    Date Filed: 01/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-10219                                 FILED
                                  Summary Calendar                        January 25, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WALTER EARL NIXON, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-137-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Walter Earl Nixon, Jr., appeals the 120-month sentence imposed after
he pleaded guilty to being a felon in possession of a firearm. Nixon argues that
in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the district court
erred in applying the enhanced base offense level under U.S.S.G. § 2K2.1(a)(3)
based on his prior Texas conviction for burglary of a habitation because




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10219     Document: 00513848750      Page: 2   Date Filed: 01/25/2017


                                  No. 16-10219

(1) Texas Penal Code § 30.02(a) is not a divisible statute and (2) not every
violation of § 30.02(a) qualifies as a crime of violence.
      Because Nixon did not object in the district court to the calculation of his
offense level, we review for plain error. Under plain error review, Nixon has
the burden of showing a forfeited error that is clear or obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he does so, we have the discretion to correct the error if it seriously affects
the integrity, fairness, or public reputation of the judicial proceedings. See id.
      Even if Nixon could establish that the district court committed clear or
obvious error in determining that his prior Texas conviction was a crime of
violence for purposes of § 2K2.1, he cannot show “a reasonable probability that,
but for the error, the outcome of the proceeding would have been different,”
and, as such, he cannot show an effect on his substantial rights. See Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). In particular, the
district court initially announced a sentence of 160 months in prison based on
the seriousness of the offense, Nixon’s extensive criminal history, and
additional 18 U.S.C. § 3553(a) factors. After Nixon’s counsel reminded the
court that the statutory maximum sentence was 120 months, the district court
imposed that sentence and repeatedly expressed its disappointment that it
could not impose the much higher sentence, which, in its opinion, was the
appropriate sentence. Thus, the record reflects that the sentence was based
“on factors independent of the Guidelines.” See Molina-Martinez, 136 S. Ct. at
1347. Because Nixon cannot satisfy all elements of plain error review, the
judgment of the district court is AFFIRMED.




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