Summary Calendar UNITED STATES OF AMERICA v. Danny Daniels

We have jurisdiction to address only the issue specified in the COA. To1
the extent that Daniels raises other issues, we do not address them. See Lackey
v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-30558
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DANNY DANIELS,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Danny Daniels, federal prisoner # 29395-179, seeks relief under 28 U.S.C.
§ 2255. The district court denied Daniels’s collateral attack, but this court
granted a certificate of appealability (COA) on the limited issue “whether he
should be resentenced because one of the offenses upon which his career offender
status was based has been invalidated.” We now affirm, holding that Daniels1
should not be resentenced.
United States Court of Appeals
Fifth Circuit
F I L E D
November 16, 2009
Charles R. Fulbruge III
Clerk

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No. 08-30558
See United States v. Washington, 480 F.3d 309, 314-15 (5th Cir. 2007)2
(describing Daniels’s case in the context of his direct appeal).
U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a). Daniels was sentenced3
under the 2003 version of the guidelines.
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 cmt. n.1 (emphasis added).4
See United States v. Joshua, 305 F.3d 352, 352-53 (5th Cir. 2002).5
2
I. Background
In 2004, Daniels pleaded guilty to conspiring to possess with intent to
distribute more than 100 kilograms of marijuana. At sentencing, the district
court found Daniels to be a career offender, which enhanced Daniels’s sentence
by about a decade. All told, the district court sentenced Daniels to 235 months
in prison.2
Under the sentencing guidelines, the defendant is a career offender if he
“has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” A prior felony conviction “means a prior adult3
federal or state conviction for an offense punishable by death or imprisonment
for a term exceeding one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence imposed.” This4
court has held that guilty pleas resulting in deferred adjudications and other
diversionary dispositions count toward the career-offender total. Our rule5
derives from the plain text of the sentencing guidelines, which states: “A
diversionary disposition resulting from a finding or admission of guilt, or a plea
of nolo contendere, in a judicial proceeding is counted . . . even if a conviction is

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No. 08-30558
U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(f); see U.S. SENTENCING
6
GUIDELINES MANUAL § 4B1.2 cmt. n.3 (“The provisions of § 4A1.2 (Definitions
and Instructions for Computing Criminal History) are applicable to the counting
of convictions under § 4B1.1.”).
U.S. SENTENCING GUIDELINES MANUAL § 4A1.2 cmt. n.9.7
United States v. Nichols, 30 F.3d 35, 36 (5th Cir. 1994).8
3
not formally entered . . . .” The deferred adjudication must “involve[] a judicial6
determination of guilt or an admission of guilt in open court,” thus reflecting “a
policy that defendants who receive the benefit of a rehabilitative sentence and
continue to commit crimes should not be treated with further leniency.”7
As one of his two prior convictions, the district court counted Daniels’s
deferred adjudication from Texas in 2003 for aggravated assault with a deadly
weapon. Daniels pleaded guilty to the charge but received community
supervision. There is no question that at the time it imposed sentence in 2005
that the district court lawfully included this diversionary disposition in its
career-offender calculation.
In 2006, though, the Texas court dismissed the aggravated assault charge
at the conclusion of Daniels’s three-year term of community supervision.
Daniels now claims that he is entitled to resentencing on the federal conviction,
because one of the two crimes underlying his career-offender status has been
dismissed. Because § 2255 relief may be “appropriate when a state conviction
that formed the basis of career offender status is invalidated after the federal
sentencing,” we proceed to the merits. “In the context of 28 U.S.C. § 2255, this8

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No. 08-30558
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).9
United States v. Santana, 220 F. App’x 283, 286 (5th Cir. 2007)10
(unpublished).
U.S. SENTENCING GUIDELINES MANUAL § 4A1.2 cmt. n.6.11
4
court reviews a district court’s factual findings for clear error and its legal
conclusions de novo.”9
II. Analysis
Although we have never decided the precise issue presented in this case,
we have in a different case foreshadowed the outcome here, noting: “[A case] in
which a defendant received a diversionary disposition, such as deferred
adjudication or assignment to a substance abuse program, and after the
defendant completed the diversionary disposition the underlying offense was
dismissed . . . [remains] a valid basis for a career offender designation.” That10
persuasive authority guides us here.
The rule, of course, is not unequivocal. Indeed, “[s]entences resulting from
convictions that . . . have been reversed or vacated because of errors of law or
because of subsequently discovered evidence exonerating the defendant, or . . .
have been ruled constitutionally invalid in a prior case are not to be counted.”11
Daniels, however, has not shown that the Texas court dismissed his assault
charge for an error of law or for newly found exonerating evidence. To the
contrary, and as the district court noted, the Texas court seems to have
dismissed the charge because Daniels’s term of community supervision came to
a close and Texas law requires judges in those situations to dismiss the

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No. 08-30558
T EX. CODE CRIM. PROC. art. 42.12.5(c). We further note that under Texas12
law, “upon conviction of a subsequent offense, the fact that the defendant had
previously received community supervision with a deferred adjudication of guilt
shall be admissible before the court or jury to be considered on the issue of
penalty.” TEX. CODE CRIM. PROC. art. 42.12.5(c)(1).
See U.S. SENTENCING GUIDELINES MANUAL § 4A1.2 cmt. n.10 (“A number13
of jurisdictions have various procedures pursuant to which previous convictions
may be set aside or the defendant may be pardoned for reasons unrelated to
innocence or errors of law, e.g., in order to restore civil rights or to remove the
stigma associated with a criminal conviction. Sentences resulting from such
convictions are to be counted.”).
5
indictment underlying the deferred adjudication: “On expiration of a community
supervision period . . . if the judge has not proceeded to adjudication of guilt, the
judge shall dismiss the proceedings against the defendant and discharge him.”12
Ultimately, Daniels pleaded guilty in Texas court to aggravated assault
with a deadly weapon, for which he received deferred adjudication. This
deferred adjudication was dismissed almost as a matter of course – and for
reasons having nothing to do with “innocence or errors of law.” Daniels13
presents no evidence to the contrary. The law thus requires that Daniels – a
recidivist offender – may not doubly benefit from the fortune of a lenient
disposition in the Texas courts – a disposition subsequent to which he committed
a serious federal crime. Notwithstanding its procedural dismissal, his Texas
guilty plea may count toward Daniels’s status as a career offender under the
sentencing guidelines.
AFFIRMED.

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