Case: 21-50206 Document: 00516321453 Page: 1 Date Filed: 05/17/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 17, 2022 No. 21-50206 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Adrian Jimmy Stoglin, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 7:20-CR-319-DC Before Higginbotham, Dennis, and Graves, Circuit Judges. James L. Dennis, Circuit Judge: Adrian Jimmy Stoglin pleaded guilty to drug trafficking and firearms offenses. The district court applied a recidivist enhancement based on Stoglin’s prior conviction in Texas state court for aggravated assault. Stoglin argues on appeal, in light of Borden v. United States, 141 S. Ct. 1817 (2021), that the district court plainly erred by applying the enhancement because his prior offense could be committed recklessly, taking it outside of the definition of prior offenses that qualify for the enhancement. We agree. We therefore VACATE Stoglin’s sentence and REMAND for resentencing consistent with this opinion. 1 Case: 21-50206 Document: 00516321453 Page: 2 Date Filed: 05/17/2022 No. 21-50206 I. Adrian Jimmy Stoglin was charged by indictment with one count of conspiracy to distribute and to possess with intent to distribute twenty-eight grams or more of cocaine base and one count of knowingly possessing a firearm in furtherance of the drug trafficking offense. In addition, the indictment alleged that Stoglin had a prior serious violent felony conviction based on his Texas conviction for aggravated assault with a deadly weapon, for which he served more than twelve months in prison. In light of that prior conviction, the magistrate judge advised Stoglin that his statutory sentencing range for the drug offense was ten years to life in prison and the mandatory minimum supervised release term was eight years. See 21 U.S.C. § 841(b)(1)(B). Stoglin pleaded guilty to both of the charges against him. The probation officer preparing the presentence report (PSR) determined that Stoglin had a total offense level of twenty-one for the drug offense and a criminal history category of IV, resulting in an advisory guidelines range of 57–71 months. However, because Stoglin faced a statutory minimum sentence of 120 months, this became the applicable guidelines range for the cocaine base conspiracy. Stoglin did not object to the PSR. The district court sentenced Stoglin to 120 months in prison for the conspiracy and 60 months for the firearm offense, to run consecutively and to be followed by concurrent eight-year and five-year terms of supervised release. Stoglin filed a timely notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i). II. Because Stoglin did not object in the district court, we review for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). To prevail on plain error review, an appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Id. at 135. If he makes such a showing, this court has the discretion to correct the error but only if it “‘seriously 2 Case: 21-50206 Document: …
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