     Case: 18-10305      Document: 00514851134         Page: 1    Date Filed: 02/26/2019




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

                                                                         FILED
                                    No. 18-10305                  February 26, 2019
                                  Summary Calendar
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PAULITO GOVEA-SAN ROMAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:17-CR-48-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Paulito Govea-San Roman pleaded guilty of illegal reentry after
deportation, and he was sentenced to a 57-month term of imprisonment and to
a three-year period of supervised release. Govea-San Roman contends that use
of the 2016 Guidelines Manual in determining his sentence violated his rights
under the Ex Post Facto Clause and that he should have been sentenced under
the 2015 Guidelines Manual.           He posits that, under the 2015 Guidelines


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10305     Document: 00514851134     Page: 2   Date Filed: 02/26/2019


                                  No. 18-10305

Manual, the 46- to 57-month guidelines range would only apply to him if the
court imposed the 16-level crime-of-violence enhancement because of his
robbery conviction.    The 16-level enhancement would apply if the court
determined that the offense was an enumerated offense of robbery or had as
an element the use, attempted use, or threatened use of physical force against
the person of another. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) & U.S.S.G.
§ 2L1.2, comment. (n.(1)(B)(iii)) (2015).
      This court has previously held that the Texas robbery statute lacks force
as an element but that it is equivalent to the generic definition of robbery. See
United States v. Santiesteban-Hernandez, 469 F.3d 376, 379-82 (5th Cir. 2006),
overruled on other grounds, United States v. Rodriguez, 711 F.3d 541, 547-63
(5th Cir. 2013) (en banc)). Although he concedes that the issue he has raised
is foreclosed under current law, Govea-San Roman contends that Santiesteban-
Hernandez was wrongly decided, and he wishes to preserve the issue for
possible further review. The Government has moved for summary affirmance
or, in the alternative, an extension of time within which to file a brief on the
merits.
      Summary affirmance is appropriate if “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question
as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Because the only argument raised on appeal is foreclosed
by precedent from this court, the Government’s motion for summary
affirmance is GRANTED and the judgment of the district court is AFFIRMED.
The Government’s alternative motion for an extension of time is DENIED as
unnecessary.




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