     Case: 17-10516      Document: 00515465865         Page: 1    Date Filed: 06/25/2020




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

                                                                           FILED
                                                                        June 25, 2020
                                    No. 17-10516                        Lyle W. Cayce
                                  Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                          Plaintiff - Appellant Cross-Appellee

v.

DAVID LEE GARRETT,

                                          Defendant - Appellee Cross-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:16-CR-107-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Lee Garrett pleaded guilty to possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1) and was sentenced under 18 U.S.C. § 924(a)(2)
to 84 months of imprisonment and three years of supervised release. Although
the district court determined that Garrett’s two prior convictions for burglary
of a habitation under Texas Penal Code § 30.02(a) qualified as violent felonies
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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                                  No. 17-10516

agreed with Garrett that his prior conviction for robbery under Texas Penal
Code § 29.02 did not meet the statutory definition of “violent felony.”
      On appeal, the Government contends that Garrett’s sentence should be
vacated and the case remanded for resentencing because now-binding
precedent holds that Texas robbery is a violent felony under § 924(e). See
United States v. Burris, 920 F.3d 942, 945, 948 & n.31 (5th Cir. 2019), petition
for cert. filed (U.S. Oct. 3, 2019) (No. 19-6186). Garrett cross-appeals, arguing
that his conviction should be reversed because § 922(g)(1) is facially
unconstitutional and further that Texas robbery does not qualify as a violent
felony under the ACCA. Alternatively, Garrett argues that his non-ACCA
sentence should be affirmed because Texas burglary is not generic burglary
and thus does not qualify as a violent felony. See § 924(e)(2)(B)(ii). He concedes
that his first two arguments are foreclosed, and he raises those arguments to
preserve them for further review.       The Government, in turn, moves for
summary affirmance as to the judgment of conviction, and it moves for
summary disposition, or vacatur, as to the sentence imposed.
      Summary affirmance or disposition is proper where, among other
instances, “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).
Garrett’s argument that § 922(g)(1) is unconstitutional because it exceeds the
scope of Congress’s power under the Commerce Clause is foreclosed.            See
United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013); United States v.
De Leon, 170 F.3d 494, 499 (5th Cir. 1999). Accordingly, summary affirmance
of his conviction is proper. See Groendyke Transp., Inc., 406 F.2d at 1162.
      In addition, the sentencing issues presented on appeal and cross-appeal
are foreclosed by United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019)



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                                  No. 17-10516

(en banc), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-7731), and Burris,
920 F.3d at 945, 948 & n.31. In Burris, this court concluded that robbery-by-
threat and robbery-by-injury under Texas Penal Code § 29.02 both require the
“use, attempted use, or threatened use of physical force” and are violent
felonies under § 924(e)(2)(B)(i)’s force clause. Burris, 920 F.3d at 945, 948
& n.31 (quotation at 945) (internal quotation marks omitted). In Herrold, this
court held that Texas burglary is “generic burglary” and is a violent felony
under the ACCA. Herrold, 941 F.3d at 182. Thus, the argument that Garrett’s
Texas robbery and burglary convictions are not violent felonies is foreclosed by
current circuit precedent, and summary disposition, or vacatur, is appropriate.
See Groendyke Transp., Inc., 406 F.2d at 1162.
      In light of the foregoing, the Government’s motion for summary
affirmance and for summary disposition is GRANTED. The Government’s
alternative motion for an extension of time to file a brief is DENIED. Garrett’s
conviction is AFFIRMED, his sentence is VACATED, and the case is
REMANDED for resentencing.




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