     Case: 16-11453      Document: 00514282071         Page: 1    Date Filed: 12/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-11453                                    FILED
                                  Summary Calendar                          December 21, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TRACY NEIL TRUELOVE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:14-CR-121-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Tracy Neil Truelove appeals the 77-month sentence he received following
his guilty plea conviction for being a felon in possession of a firearm. He
contends that the district court erred in assessing a base offense level of 24,
pursuant to U.S.S.G. § 2K1.2(a)(2), based on the determination that he
committed the instant offense after two felony convictions for crimes of
violence, as defined by U.S.S.G. § 4B1.2(a) (2014). Truelove asserts that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11453       Document: 00514282071         Page: 2    Date Filed: 12/21/2017


                                      No. 16-11453

prior Texas convictions for robbery and aggravated robbery are crimes of
violence only under the residual clause of former § 4B1.2(a) and accompanying
commentary, which is invalid and void for vagueness following Johnson v.
United States, 135 S. Ct. 2551 (2015).
       The Government has filed an unopposed motion for summary affirmance
in light of Beckles v. United States, 137 S. Ct. 886, 892 (2017). Summary
affirmance is proper where, among other things, “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). In Beckles, 137 S. Ct. at 892, the Supreme
Court declined to extend Johnson and held that “the Guidelines are not subject
to a vagueness challenge under the Due Process Clause.” Texas robbery and
aggravated robbery qualify as enumerated crimes of violence under the former
commentary to § 4B1.2. See United States v. Flores-Vasquez, 641 F.3d 667, 670
n.1 (5th Cir. 2011); 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); United States v.
Sanchez-Lopez, 493 F. App’x 557, 558 (5th Cir. 2012).                   Thus, Truelove’s
appellate argument is foreclosed.
       The motion for summary affirmance is GRANTED, and the district
court’s judgment is AFFIRMED. 1 The Government’s alternative motion for an
extension of time to file a brief is DENIED.




       1Because summary affirmance is appropriate, this court pretermits the question
whether the appeal is barred by the waiver-of-appeal provision in the written plea agreement.
See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006)


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