     Case: 19-11348      Document: 00515429474         Page: 1    Date Filed: 05/27/2020




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

                                                                                FILED
                                    No. 19-11348                            May 27, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DESMOND HOWARD GREER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:19-CR-30-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Desmond Howard Greer appeals his 120-month, within-guidelines
sentence for being a convicted felon in possession of a firearm. Greer contends
that the district court’s application of the enhanced base offense level under
U.S.S.G. § 2K2.1(a)(1) was erroneous because his Texas convictions for assault
family violence impeding breath or circulation and assault family violence with
prior convictions do not qualify as crimes of violence, given that the statute of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11348    Document: 00515429474      Page: 2   Date Filed: 05/27/2020


                                  No. 19-11348

conviction criminalizes reckless conduct and therefore lacks force as an
element.   The Government moves for summary affirmance, arguing that
Greer’s argument is foreclosed.
      In his brief, Greer correctly concedes that his argument is foreclosed, and
he raises it only to preserve the issue for future review. See United States v.
Reyes-Contreras, 910 F.3d 169, 173-74, 183 (5th Cir. 2018) (en banc) (holding
that the term “use of physical force” does not require the use of force to be
intentional and thus applies to reckless conduct); United States v. Howell, 838
F.3d 489, 490-92, 501-03 (5th Cir. 2016) (holding that the Texas offense of
assault family violence by impeding breathing or circulation qualifies as a
crime of violence under § 2K2.1). The Government is “clearly right as a matter
of law” such 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).
      Accordingly, 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 to file a brief is
DENIED.




                                       2
