     Case: 19-40330   Document: 00515330195     Page: 1   Date Filed: 03/03/2020




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

                                                                       FILED
                                 No. 19-40330                      March 3, 2020
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


                                           Plaintiff-Appellee

v.

RAMON MARTIN ARAMBULA,

                                           Defendant-Appellant


                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
      Ramon Martin Arambula appeals the 120-month sentence imposed
following his guilty plea conviction for possession with intent to distribute 28
grams or more of a mixture and substance containing cocaine base. He argues
that his 1994 conviction for robbery, in violation of Texas Penal Code § 29.02,
does not qualify as a crime of violence in light of the commentary to U.S.S.G.
§ 4B1.2(a), which defines the offenses that qualify as crimes of violence under
U.S.S.G. § 4B1.1. The Government moves for summary affirmance on the
ground that this court’s decisions in cases construing crimes of violence under
U.S.S.G. § 2L1.2 and 18 U.S.C. § 924(e) have held that a conviction under
§ 29.02 qualifies as generic robbery and also has as an element the use,
attempted use, or threatened use of physical force.         Alternatively, the
    Case: 19-40330    Document: 00515330195     Page: 2   Date Filed: 03/03/2020


                                 No. 19-40330

Government moves for a 30-day extension of time to file its brief. Arambula
opposes the Government’s motion for summary affirmance.
      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). We have held that the commentary to § 4B1.2 must be
construed in a manner so as not to be rendered superfluous. See United States
v. Lipscomb, 619 F.3d 474, 477-78 (5th Cir. 2010); § 4B1.2 & comment. (n.2).
However, the Government has not addressed whether the holdings in the cases
upon which it relies are equally applicable to cases involving § 4B1.2(a),
notwithstanding the commentary to that guideline, an issue on which we
express no opinion.    Accordingly, the Government has not satisfied the
standard for summary affirmance, and IT IS ORDERED that its motion for
summary affirmance is DENIED. The Government’s motion for an extension
of time to file its brief is GRANTED, and the clerk is directed to resume the
briefing schedule.




                                       2
