United States v. Jeffery Deal

693 F. App'x 341

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 14, 2017
• Docket: 16-20133 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jeffery Arnold Deal pleaded guilty to an indictment charging him with two counts of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to concurrent terms of 63 months of imprisonment and three years of supervised release.

On appeal, Deal challenges the calculation of his guidelines range of imprisonment under U.S.S.G. § 2K2.1(a)(4)(A), which states that the base offense level is 20 if the offense occurred subsequent to a felony conviction for a crime of violence. He avers that his Texas conviction for robbery no longer qualifies as a crime of violence because the former residual clause and accompanying commentary of U.S.S.G. § 4B1.2(a)(2) are invalid in light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). That argument is unavailing, see Beckles v. United States, — U.S. -, 137 S.Ct. 886, 892, 197 L.Ed.2d 145 (2017), and Texas robbery qualifies as an enumerated crime of violence under the former commentary to § 4B1.2, see United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81 (5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir. 2013) (en banc); United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011); United States v. Velasco, 465 F.3d 633, 641 n.9 (5th Cir. 2006) (definitions of crime of violence set forth in U.S.S.G. §§ 4B1.2 and 2L1.2 are treated interchangeably). Because the offense qualifies as an enumerated crime of violence, we need not address Deal’s addi tional argument that Texas robbery does not constitute a crime of violence under § 4B1.2 because it lacks the element of use, threatened use, or attempted use of force. See United States v. Olalde-Hernandez, 630 F.3d 372, 376 (5th Cir. 2011).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.