United States v. Donielle Ross

Opinion

Case: 18-11318 Document: 00514978064 Page: 1 Date Filed: 05/31/2019

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

FILED No. 18-11318 May 31, 2019 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONIELLE RASHI ROSS,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CR-192-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * Donielle Rashi Ross appeals the sentence imposed upon resentencing for his convictions for being a felon in possession of a firearm, possession with intent to distribute methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime. Ross argues, as he did in his initial appeal, that the district court erred in classifying his prior assault conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)(B) as a crime of violence for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-11318 Document: 00514978064 Page: 2 Date Filed: 05/31/2019

No. 18-11318

purposes of an enhancement under U.S.S.G. § 2K2.1; however, he concedes that the issue is foreclosed by United States v. Howell, 838 F.3d 489 (5th Cir. 2016), as well as the law of the case doctrine, and raises it solely to preserve it for further review. Howell held that such an assault offense is a crime of violence under the Sentencing Guidelines. Howell, 838 F.3d at 501-03. The Government has moved unopposed for summary affirmance pursuant to Howell or, in the alternative, for an extension of time in which to file a responsive brief. The judgment of the district court is AFFIRMED, the Government’s motion for summary affirmance is GRANTED, and its alternative motion is DENIED.