     Case: 09-40737      Document: 00511170864           Page: 1     Date Filed: 07/13/2010




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

                                                  FILED
                                                                                July 13, 2010
                                       No. 09-40737
                                     Summary Calendar                          Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee

v.

JERELY LEE BIRDOW, also known as Jerbly Lee Birdow,

                                                     Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:06-CR-282-1


Before GARWOOD, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Jerely Lee Birdow appeals from the 405-month sentence imposed following
his conviction for being a felon in possession of a firearm. Birdow argues that
the district court erred by (1) applying 18 U.S.C. § 924(e) because his prior
conviction for assault on a public servant did not constitute a violent felony 1 and



        *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
        This was a single prior judgment which convicted Birdow for two separate assaults on
a public servant, each committed on a separate occasion from the other. Birdow also had
(among other prior convictions) a prior conviction for burglary of a habitation (a violent felony).
   Case: 09-40737       Document: 00511170864 Page: 2              Date Filed: 07/13/2010
                                    No. 09-40737

(2) cross-referencing to U.S.S.G. § 2A3.1 because he did not possess the firearm
in connection with the commission of an aggravated sexual assault.                         The
Government counters that Birdow’s claims are barred by the waiver provision
contained in his plea agreement providing, inter alia, that Birdow waives his
right to appeal his sentence unless it exceeds the statutory maximum or results
from his having received ineffective assistance of counsel (he makes no claim of
the latter).
       Birdow characterizes both of his arguments on appeal as one challenging
his sentence as one that exceeds the statutory maximum. E.g., Blue Brief at 6.
 However, both of Birdow’s issues on appeal contest the district court’s
calculation of the sentencing guidelines. The Supreme Court has decided that
the guidelines are not mandatory. See United States v. Booker, 125 S. Ct. 738,
764–68 (2005).       Because the guidelines are advisory, they do not create a
statutory maximum that Birdow can appeal.
       In any event, we need not decide whether this appellate briefing bars
Birdow’s § 924(e) claim because it is meritless. See United States v. Story, 439
F.3d 226, 230 (5th Cir. 2006) (holding that waivers are not jurisdictional). We
review the legal conclusions underlying a district court's application of § 924(e)
de novo. See United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). A
conviction for assault on a public servant pursuant to T EX. P EN. C ODE § 22.01(b)
constitutes a crime of violence pursuant to U.S.S.G. § 4B1.2(a). See United
States v. Anderson, 559 F.3d 348, 355-56 (5th Cir.),2 cert. denied, 129 S.Ct. 2814



       2
         Birdow also argues in his brief that United States v. Fierro-Reyna, 466 F.3d 324 (5th
Cir. 2006), suggests that the rule in Anderson is not a per se rule holding that all convictions
under § 22.01 are crimes of violence. Unlike Fierro-Reyna, but like Anderson, the instant case
involves a § 22.01(b) conviction as a crime of violence pursuant to U.S. SENTENCIN G
GUIDELINES § 4B1.2(a). Fierro-Reyna involved a question of whether an assault was a crime
of violence under U.S. SENTENCING GUIDELINES § 2L1.2. Fierro-Reyna, 466 F.3d at 326. The
Anderson court specifically addressed the differences between guidelines section 4B1.2 and
2L1.2 in deciding that a § 22.01(b) conviction would be a crime of violence purusant to
guidelines section 4B1.2.

                                               2
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                                     No. 09-40737

(2009); United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir.), cert. denied, 130
S. Ct. 56 (2009) (noting that this court has applied case law under the residual
clause of § 924(e) to analyze the definition of crime of violence under § 4B1.2,
and vice versa).3 Although Birdow argues that Anderson was wrongly decided,
we may not overrule it without en banc reconsideration or a superseding
contrary Supreme Court decision. See Martinez-Lopez v. Gonzales, 454 F.3d 500,
502 n. 1 (5th Cir. 2006). Applying the Anderson definition, we hold that Birdow’s
conviction for assault on a public servant contrary to T EX. P EN. C ODE §
22.01(b)(1) was a violent felony for purposes of section 924(e). Because Birdow’s
statutory maximum sentence was life in prison pursuant to § 924(e), his
argument regarding the cross-reference to §2A3.1 is barred by the plea
agreement waiver, as his sentence does not exceed the statutory maximum. See
United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005); United States v.
Melancon, 972 F.2d 566, 567–68 (5th Cir. 1992). We AFFIRM.
                                          AFFIRMED




       3
         As we also noted in Mohr, ‘[t]he definition of violent felony [in § 924(3)] is identical to
that of ‘crime of violence’ in the Guidelines context.” Id. at 609.

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