Case: 16-11354      Document: 00514492169         Page: 1    Date Filed: 05/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 16-11354                            May 30, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

COLBY JONES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-58-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Colby Jones appeals the 151-month within-guidelines sentence imposed
following his conviction for conspiracy to possess with the intent to distribute
50 grams or more of methamphetamine. Jones contends that the district court
erred in calculating his criminal history score. Citing to U.S.S.G. § 4A1.2(c),
he asserts that the one criminal history point for his 2011 five-day sentence for
the Texas offense evading arrest was erroneously assessed.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11354     Document: 00514492169       Page: 2   Date Filed: 05/30/2018


                                  No. 16-11354

      Because Jones did not object in the district court to his criminal history
score, we review for plain error. See United States v. Mondragon-Santiago, 

, 361 (5th Cir. 2009). In calculating criminal history, sentences for
misdemeanor and petty offenses are counted, except as provided in
§ 4A1.2(c)(1) and (2).     § 4A1.2(c).       Sentences for offenses listed under
§ 4A1.2(c)(1) and “offenses similar to them, by whatever name they are known”
are counted only when the sentence imposed “was a term of probation of more
than one year or a term of imprisonment of at least [30] days” or when “the
prior offense was similar to an instant offense.” § 4A1.2(c)(1)(A), (B). One of
the offenses listed in § 4A1.2(c)(1) is resisting arrest. § 4A1.2(c)(1).
      Jones received one criminal history point for the five-day sentence
imposed for his 2011 conviction of the Texas misdemeanor offense of evading
arrest. The Texas offense of evading arrest is similar to the crime of resisting
arrest as set forth in § 4A1.2(c), and the district court committed clear or
obvious error by assessing the criminal history point. See United States v.
Moore, 

, 34-35 (5th Cir. 1993). Without that criminal history point,
Jones would have had seven criminal history points, and his Category IV
criminal history score and guidelines range would have remained unchanged.
Because he was sentenced within the correct guidelines range and because the
district court indicated that a sentence at the top of that range was
appropriate, Jones fails to make a showing that the error affected his
substantial rights. See United States v. Davis, 

, 647 (5th Cir.
2010).
      The judgment of the district court is AFFIRMED.




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