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Click here for the full text of this decision FACTS:Anthony Randall Jackson appeals his 24-month prison sentence for possession of a firearm by a person convicted of a felony. Dallas police officers, responding to the sound of a gun shot, observed Jackson near a vehicle parked in a housing complex. As the officers approached, a woman told them that Jackson had a gun. After detaining Jackson, the officers searched the vehicle and discovered a revolver loaded with five rounds of live ammunition and one spent round. According to federal and state law enforcement reports, the woman, identified as Jackson’s common-law wife or girlfriend, told the officers that the couple had argued and that Jackson had pushed her to the ground, brandished the revolver, and fired one round into the air. Jackson pleaded guilty in federal district court to possession of a firearm by a felon, in violation of 18 U.S.C. ��922(g)(1) and 924(a)(2). The court-ordered presentence report recommended a four-level increase in the base offense pursuant to U.S.S.G. �2K2.1(b)(5) based upon Jackson’s use of a firearm “in connection with another felony offense” – aggravated assault under �22.02 of the Texas Penal Code. Jackson filed an objection to this recommendation, asserting that his conduct on the day of his arrest qualified only as a misdemeanor under state law. The district court heard argument addressing Jackson’s objection. Defense counsel stressed that Jackson’s girlfriend had provided an affidavit recanting, in part, her statements to the police. Defense counsel then proffered Jackson’s version of the events. “[T]here was a brushing aside or pushing aside that happened ten minutes before and Mr. Jackson discharged his firearm 10 to 15 minutes after. I don’t believe that would constitute [aggravated assault].” The Government argued that Jackson’s conduct constituted aggravated assault under state law because Jackson “used or exhibited a dangerous weapon . . . essentially putting the victim in the apprehension of a battery.” The district court overruled Jackson’s objection, stating that, “based upon what is contained in the [PSR] and the sequence of events, the Court does believe that ample evidence exists in the record to establish that there was a felony assault.” The court also opined that “there is enough evidence [even under Jackson's version of the events] to establish a felonious assault under Texas law.” After argument, but before sentencing, the court gave Jackson the opportunity to allocute and offer reasons for mitigation of his sentence. Jackson objected to the more severe sentence. He asserted that he did not assault his girlfriend and stated that she was present in the courtroom and could establish that he merely “pushed her away from the door.” The court responded directly to Jackson stating: “I guess I need to know then if she is filing false reports with the Dallas police officers, then we need to explore that avenue. If she is calling the police and filing false reports, that in itself is a crime. It can’t be both ways. . . . [M]aybe the jig might be up for her if she is filing false reports. I am just making it clear that, you know, when you talk or you make reports or somebody takes an oath, I mean if somebody does not tell the truth, there are going to be consequences behind that. All I’m saying is that at some point in time, you know, there [were] police reports filed. . . . I understand that she has retracted th[ose] statement[s] or she is not willing to make those statements. You know, you ultimately have to decide, which is true. . . . Is she telling the truth now or was she telling the truth then or telling the truth later?” Although uncertain that such testimony was necessary and despite having already ruled on Jackson’s objection, the court asked defense counsel if he intended to call the witness to testify. Defense counsel acknowledged that he shared the court’s concerns regarding false statements and requested an admonishment from the court if she chose to testify. After inquiry, Jackson’s girlfriend chose not to testify. The court then reaffirmed its earlier determination that there was sufficient evidence supporting the enhancement and sentenced Jackson to 24 months in prison. HOLDING:Affirmed. Jackson argues that the district court violated his constitutional rights by “threatening” his girlfriend with criminal prosecution if she took the stand. Because defense counsel did not object to the district court’s comments during the sentencing hearing, the court reviews only for plain error. At sentencing, a defendant has a protected due process right to review and object to a PSR, but no absolute right to present witnesses. United States v. Henderson, 19 F.3d 917 (5th Cir. 1994). Here, Jackson had the opportunity to examine the PSR, make objections, and present affidavits to support his claim that he did not assault his girlfriend. Under the circumstances, Jackson’s due process rights were appropriately protected, and the district court was not required to receive additional witness testimony before sentencing. Even assuming that Jackson had the right to present his girlfriend as a witness at sentencing, he has failed to demonstrate that the district court’s allegedly threatening statements were clearly erroneous. The district court informed Jackson of the risks his girlfriend would face if he called her to testify and if she testified in a manner that differed from her statement to the police. “Although our decision should not be misconstrued as approbation of the district court’s admonishment, we hold that it did not commit plain error under these circumstances.” Jackson also failed to establish prejudice because he cannot show that his sentence would have been different if his girlfriend had testified. Jackson also argues that the court erroneously applied the four-level enhancement in U.S. Sentencing Guidelines �2K2.1(b)(5). Jackson contends that his use or exhibition of a deadly weapon was not “during the commission of the assault” under �22.02(a) because any assault under �22.01(a)(3) for pushing his girlfriend occurred 10-15 minutes earlier. This timing argument is not dispositive because assault in Texas does not require physical contact. “The district court applied the four-level enhancement in �2K2.1(b)(5) based, in part, upon the undisputed fact that Jackson fired his pistol after pushing his girlfriend during a heated argument. Jackson does not provide a reason for firing the gun during the argument, and we can discern no reason for doing so other than to threaten and intimidate.” OPINION:Garza, J.; Garwood, Davis and Garza, J.J.

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