     Case: 19-10813      Document: 00515349855         Page: 1    Date Filed: 03/18/2020




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

                                    No. 19-10813                                FILED
                                  Summary Calendar                        March 18, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TRESHUN DEVONTE BATES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:19-CR-24-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Treshun Devonte Bates appeals his 71-month, within-guidelines
sentence for being a convicted felon in possession of a firearm. Bates contends
that the district court’s application of the enhanced base offense level under
U.S.S.G. § 2K2.1(a)(4)(A) was erroneous because his Texas conviction for
assault of a public servant does not qualify as a crime of violence, given that
the statute of conviction criminalizes reckless conduct and therefore lacks force


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10813    Document: 00515349855     Page: 2   Date Filed: 03/18/2020


                                 No. 19-10813

as an element. The Government moves for summary affirmance, arguing that
Bates’s argument is foreclosed by United States v. Rocha Flores, 921 F.3d 1133
(5th Cir. 2019).
      Bates correctly concedes that his argument is foreclosed, and he raises it
only to preserve the issue for future review. See Rocha Flores, 921 F.3d at
1133; see also United States v. Reyes-Contreras, 910 F.3d 169, 183 (5th Cir.
2018) (en banc) (considering former U.S.S.G. § 2L1.2(b)(1)(A)(ii) and
recognizing that the use-of-force requirement may include knowing or reckless
conduct); United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011)
(interpreting guidelines provisions and statutes with similar language
interchangeably). 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.




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