     Case: 17-11118      Document: 00514631151         Page: 1    Date Filed: 09/06/2018




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

                                    No. 17-11118                                 FILED
                                  Summary Calendar                       September 6, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee Cross-Appellant


v.

TYMAINE AKEEN LEWIS,

                                          Defendant - Appellant Cross-Appellee


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:16-CR-514-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Tymaine Akeen Lewis pleaded guilty to being a felon in possession of a
firearm (count one), in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and
possession with intent to distribute cocaine (count two), in violation of 21
U.S.C. § 841(a)(1), (b)(1)(C).         Lewis was sentenced to 156 months of
imprisonment on count two and a concurrent 120 months of imprisonment on



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11118    Document: 00514631151     Page: 2   Date Filed: 09/06/2018


                                 No. 17-11118

count one.   On appeal, Lewis argues that his Texas aggravated robbery
convictions are not crimes of violence pursuant to U.S.S.G. § 4B1.2. The
Government cross-appealed, arguing that the district court erred by holding
that Lewis’s Texas aggravated robbery convictions were not violent felonies
under the Armed Career Criminal Act (ACCA). De novo review applies to both
issues. United States v. Baker, 742 F.3d 618, 620 (5th Cir. 2014); United States
v. McGee, 460 F.3d 667, 668 (5th Cir. 2006). Because, as Lewis acknowledges,
his argument is foreclosed by 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), the district court
correctly determined that Lewis’s convictions for Texas aggravated robbery
constitute crimes of violence under § 4B1.2.
      In its cross-appeal, the Government argues that the district court erred
in holding that Texas aggravated robbery is not a violent felony because (1) the
state court records established that Lewis was convicted of aggravated robbery
with a deadly weapon, which is a violent felony pursuant to United States v.
Lerma, 877 F.3d 628 (5th Cir. 2017), cert. denied, 2018 WL 1912585 (May 29,
2018) (No. 17-8588), or, alternatively, (2) the Texas robbery statute is
categorically a violent felony because it has the use, attempted use, or
threatened use of physical force as an element. Because the Texas aggravated
robbery statute is divisible, Lerma, 877 F.3d at 633-34, the modified categorical
approach may be used to determine under which portion of the statute Lewis
was convicted, see Descamps v. United States, 570 U.S. 254, 260-63 (2013). The
state court records reveal that Lewis’s prior convictions involved the
commission of a robbery and using and exhibiting a deadly weapon. Those
elements correspond with the elements of aggravated robbery under Texas
law. See TEX. PENAL CODE ANN. § 29.03(a)(2); see also Lerma, 877 F.3d at 635.



                                       2
    Case: 17-11118    Document: 00514631151     Page: 3   Date Filed: 09/06/2018


                                 No. 17-11118

      In light of our decision in Lerma that a Texas conviction for aggravated
robbery has as an element the threatened use of force and is therefore a violent
felony under the ACCA, see Lerma, 877 F.3d at 636, the district court erred by
holding that Lewis’s aggravated robberies were not violent felonies, see McGee,
460 F.3d at 668. Accordingly, we VACATE Lewis’s sentence and REMAND for
resentencing in accordance with Lerma and the ACCA.




                                       3
