Plain-Error Limits on Borden-Based Challenges:
Fifth Circuit Preserves Louisiana Armed Robbery as a “Crime of Violence” Absent Proven Reckless-Mens-Rea Applications

Introduction

United States v. King, No. 24-30323 (5th Cir. Aug. 15, 2025), is the Fifth Circuit’s most recent engagement with Borden v. United States, 593 U.S. 420 (2021), and its ripple effects on the definition of a “crime of violence” under the United States Sentencing Guidelines (U.S.S.G.). The appellant, Tyree King, pleaded guilty to federal firearms offenses but, for the first time on appeal, asserted that his prior Louisiana armed-robbery conviction could not serve as a “crime of violence” predicate because Louisiana classifies the offense as a general-intent crime that can allegedly be committed recklessly.

Three principal issues surfaced:

1. Whether the district court plainly erred by treating Louisiana armed robbery (La. Rev. Stat. §14:64) as a “crime of violence” under U.S.S.G. §§2K2.1(a)(3) & 4B1.2(a).
2. Whether the court’s oral promise of presentence custody credit required a sentence adjustment or clarification on remand.
3. Whether discrepancies between the oral pronouncement and written judgment regarding supervised-release conditions mandated conforming corrections.

Although the panel (Higginson, Ho & Wilson, JJ.) affirmed the Guidelines calculation, it remanded for (1) clarification of the presentence-credit issue and (2) correction of the written judgment. The opinion therefore creates an important precedent on the evidentiary showing required to establish “obvious error” when a defendant, for the first time on appeal, challenges a predicate offense in light of Borden.

Summary of the Judgment

• Guidelines Issue: No “clear or obvious” error in labeling Louisiana armed robbery a crime of violence; base offense level 22 (rather than 20) stands.
• Presentence Credit: Record ambiguity about the district court’s intent warrants remand to clarify—court may adjust the sentence or explain why no change is needed.
• Written-Judgment Conflict: Two special supervised-release conditions appear only in writing; they must be removed or orally re-pronounced on remand.

Analysis

1. Precedents Cited

1. Borden v. United States, 593 U.S. 420 (2021) — narrowed ACCA’s “violent felony” definition to require at least knowing or purposeful conduct; reckless conduct insufficient.
2. Molina-Martinez v. United States, 578 U.S. 189 (2016) — set plain-error review framework for Guidelines errors.
3. Puckett v. United States, 556 U.S. 129 (2009) — articulated the four-prong plain-error test.
4. United States v. Garner, 28 F.4th 678 (5th Cir. 2022) — applied Borden to hold Louisiana aggravated assault with a firearm not a crime of violence because the statute allowed reckless conduct.
5. United States v. Porterie, 2025 WL 457999 (5th Cir. Feb. 11, 2025) & United States v. Forbito, 2023 WL 8274528 (5th Cir. Nov. 30, 2023) — limited Garner to its specific statute when reviewing other Louisiana general-intent crimes on plain-error review.
6. United States v. James, 950 F.3d 289 (5th Cir. 2020) & United States v. Brown, 437 F.3d 450 (5th Cir. 2006) — pre-Borden cases deeming Louisiana armed robbery a crime of violence, though without mens-rea analysis.
7. Sentencing-credit and written-judgment authorities: United States v. Taylor, 973 F.3d 414 (5th Cir. 2020); United States v. Hankton, 875 F.3d 786 (5th Cir. 2017); United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc).

2. Legal Reasoning

a. Plain-Error Framework

Because King never objected below, the panel applied the four-step Puckett test. Only the second prong—whether any error was “clear or obvious”—proved decisive. If precedent leaves the legal question reasonably debatable, an appellant loses under prong two.

b. Categorical-Approach Inquiry

Under §4B1.2(a) a predicate conviction must match either the “force clause” (elements clause) or an enumerated offense (“robbery”). Using the categorical approach, the court looked solely at the elements of La. Rev. Stat. §14:64:

“the taking of anything of value … by use of force or intimidation, while armed with a dangerous weapon.”

The defense relied on Louisiana’s general-intent doctrine—arguing that because Garner proved aggravated assault could be committed recklessly, armed robbery must be equally broad.

c. Cabining Garner

The panel rejected a wholesale extension of Garner. Two rationales emerge:

• Statutory-Element Specificity — Garner analyzed La. Rev. Stat. §14:37.4, not §14:64. The Fifth Circuit has “been cautious” about extrapolating.
• Absence of On-Point Louisiana Caselaw — On plain-error review, a defendant must show Louisiana courts have actually sustained an armed-robbery conviction where the defendant acted only recklessly or negligently. King cited State v. Smith, 23 So. 3d 291 (La. 2009), but the opinion did not specify a reckless mens rea; thus, it failed to demonstrate obvious error.

d. Practical Application of Prong Two

Because no controlling Supreme Court or Fifth-Circuit precedent explicitly invalidated armed robbery as a crime of violence post-Borden, any potential error was at most “subject to reasonable dispute.” Therefore it was not “clear or obvious,” halting the plain-error inquiry.

e. Sentencing-Credit & Judgment-Mismatch Issues

The court acknowledged it cannot itself compute Bureau of Prisons (BOP) credit but recognized a sentencing court’s ability to adjust the term under U.S.S.G. §§5G1.3(b) or 5K2.23 when credit would otherwise be lost. Uncertainty over the judge’s true intention led to a limited remand for clarification and for conforming the written judgment to the oral sentence, consistent with Mireles and Diggles.

3. Impact of the Decision

• Practical Burden on Defendants: On plain-error review, defendants must now produce Louisiana caselaw showing their specific statute is applied with only a reckless mens rea before the Fifth Circuit will deem any error “obvious.”
• Scope of Garner Limited: The court again signal-boosts that Garner is not a universal solvent for Louisiana general-intent offenses.
• District-Court Guidance: Judges sentencing defendants with Louisiana-crime predicates may continue to treat armed robbery as a crime of violence unless and until binding authority says otherwise. But clear oral pronouncements remain essential where credit or supervised-release conditions are involved.
• Future Litigation: Defendants may attempt to locate or manufacture Louisiana precedent unequivocally upholding an armed-robbery conviction on reckless facts. Absent such authority, challenges will likely fail, at least when reviewed for plain error.

Complex Concepts Simplified

• Plain Error Review: A four-part test applied when an issue wasn’t raised in the lower court. The error must be clear, affect substantial rights, and seriously affect the fairness of proceedings.
• Categorical Approach: Courts compare elements of past statutes to generic definitions in federal law; they do not re-examine the defendant’s actual conduct.
• General-Intent vs. Specific-Intent: A general-intent statute often requires only a voluntary act; it may be satisfied by reckless or negligent conduct. Specific intent demands an actual purpose to achieve a certain result.
• BOP Credit vs. Court Adjustment: Only the BOP administratively credits time already served. A district judge who wants to ensure a defendant gets that benefit must shorten the sentence (e.g., via §5G1.3) rather than ordering the BOP to apply credit.
• Oral Pronouncement Rule: Discretionary conditions of supervised release stated aloud in court control over any conflicting written judgment later entered by the clerk.

Conclusion

United States v. King reinforces the Fifth Circuit’s cautious, statute-specific application of Borden. Unless a defendant can demonstrate that Louisiana’s armed-robbery statute has, in fact, been applied to reckless conduct, the court will continue to regard the offense as a qualifying crime of violence—especially on plain-error review. Simultaneously, the decision reiterates procedural safeguards: sentencing courts must articulate how presentence custody is treated and must align written judgments with their oral pronouncements. In the broader context, King preserves the stability of Guidelines calculations in the Fifth Circuit while providing a roadmap for litigants seeking to test the outer boundaries of Borden in future cases.