     Case: 15-10780      Document: 00513563268         Page: 1    Date Filed: 06/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-10780                                    FILED
                                  Summary Calendar                              June 23, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RONNIE FLANAGAN, also known as Tommy Jenkins,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-59-1


Before HIGGINBOTHAM, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ronnie Flanagan pleaded guilty to an indictment charging him with
possession of a firearm by a convicted felon. The district court upwardly varied
from the guidelines range and sentenced Flanagan to 84 months of
imprisonment. On appeal, Flanagan challenges his conviction and sentence.
Flanagan argues that the district court erred in determining his base offense
level under U.S.S.G. § 2K2.1(a)(4)(A) based on a finding that his prior Texas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10780     Document: 00513563268      Page: 2   Date Filed: 06/23/2016


                                  No. 15-10780

conviction for aggravated assault on a public servant qualified as a crime of
violence. Specifically, Flanagan asserts, as he did in the district court, that the
Texas aggravated assault statute does not have the use, attempted use, or
threatened use of force as an element of the offense.
      We review a district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008.             Under
§ 2K2.1(a)(4)(A), the base offense level is 20 if “the defendant committed any
part of the instant offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense.” The term “crime
of violence” in § 2K2.1 “has the meaning given that term in [U.S.S.G.]
§ 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” § 2K2.1,
comment. (n.1).
      Section 4B1.2(a) provides that an offense qualifies as a crime of violence
if it “(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or (2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves conduct that
presents a serious risk of physical injury to another.” § 4B1.2. Application
Note 1 of the Commentary to § 4B1.2 provides that “crime of violence” includes
certain enumerated offenses and specifically lists aggravated assault as one
such offense. § 4B1.2, comment. (n.1). Enumerated offenses listed in the
commentary are treated as crimes of violence. United States v. Rayo-Valdez,
302 F.3d 314, 317 (5th Cir. 2002).
      In United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir.
2007), this court held that aggravated assault under Texas Penal Code
§ 22.02(a), the statute under which Flanagan was convicted of aggravated
assault, qualified as a conviction for an enumerated offense of aggravated



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                                No. 15-10780

assault and a crime of violence under U.S.S.G § 2L1.2(b)(1)(A)(ii). Because the
crime of violence analysis applies consistently for guidelines calculations
involving § 4B1.2 and § 2L1.2, see Rayo-Valdez, 302 F.3d at 318, Flanagan’s
prior Texas conviction for aggravated assault was properly treated as a crime
of violence. See Guillen-Alvarez, 489 F.3d at 199-201. The district court did
not err in determining the base offense level under § 2K2.1(a)(4)(A).
      Flanagan also argues that the district court erred by denying his motion
to dismiss the indictment, contending that § 922(g) is unconstitutional because
“it regulates conduct that falls outside the government’s power to regulate
commerce” and that the indictment failed to allege that he knew the firearm
had traveled in interstate commerce. As Flanagan correctly concedes, these
arguments are foreclosed by this court’s precedent.      See United States v.
Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); United States v. Rose, 587 F.3d
695, 705-06 (5th Cir. 2009).
      The Government has moved for summary affirmance.                  Summary
affirmance is not appropriate, and the motion is DENIED. See United States
v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006). The
Government’s alternative motion for an extension of time to file a responsive
brief is also DENIED. The judgment of the district court is AFFIRMED.




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