     Case: 18-10393      Document: 00514835624         Page: 1    Date Filed: 02/14/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 18-10393                     United States Court of Appeals

                                   c/w No. 18-10394
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                    February 14, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

EDWARD RAY CROSBY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:12-CR-338-1
                            USDC No. 3:16-CR-405-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Edward Ray Crosby pleaded guilty to being a felon in possession of a
firearm and possession with intent to distribute a controlled substance. Based
on these new law violations and others, the district court revoked Crosby’s
supervised release. The court sentenced Crosby to 120 months on the firearms
count and 168 months on the drug count, to run concurrently, and to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10393       Document: 00514835624         Page: 2    Date Filed: 02/14/2019


                                      No. 18-10393
                                    c/w No. 18-10394
concurrent three-year terms of supervised release. Regarding the revocation,
the court sentenced Crosby to 24 months in prison, with 12 months to run
concurrently with the sentence on the new law counts and 12 months to run
consecutively; the court did not impose an additional term of supervision.
       Crosby argues that the district court plainly erred in determining that
his Texas aggravated robbery convictions are crimes of violence as defined in
U.S.S.G. § 4B1.2 for purposes of determining his base offense level under
U.S.S.G. § 2K2.1(a)(2). He asserts that the offense of Texas robbery is broader
than the generic definition of robbery and does not have the use of force as an
element of the offense. 1
       The Government has filed an unopposed motion for summary
affirmance, asserting that the argument is foreclosed.                  Crosby correctly
concedes that 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).
He raises the issue only to preserve it for further review; thus, summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
       Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time to
file a brief is DENIED, and the judgment of the district court is AFFIRMED.




       1Crosbydoes not raise any challenge to the revocation of his supervised release or the
sentence imposed.


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