     Case: 16-11278      Document: 00514490590         Page: 1    Date Filed: 05/29/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 16-11278
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          May 29, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

REGINALD MCGEE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-57-1


Before WIENER, DENNIS and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Reginald McGee pled guilty to possession of a firearm by a convicted
felon. He was sentenced to the statutory minimum prison sentence of 180
months under the provisions of the Armed Career Criminal Act (“ACCA”). 18
U.S.C. § 924(e). On appeal, he argues that his prior convictions did not qualify
under the terms of the ACCA to establish that statutory minimum.                                We
disagree and AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11278    Document: 00514490590     Page: 2   Date Filed: 05/29/2018


                                 No. 16-11278

      McGee’s prior convictions were in Texas. They included a Dallas County
conviction for the offense of murder with a deadly weapon, a Dallas County
conviction for the offense of aggravated robbery with a deadly weapon, and a
Tarrant County conviction also for aggravated robbery with a deadly weapon.
He argues that the district court erred in sentencing him under the provisions
of the ACCA based on his convictions for aggravated robbery with a deadly
weapon and murder with a deadly weapon. He asserts that, in light of the
holding in Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), his
convictions can qualify as violent felonies under the ACCA only if they are
enumerated offenses or have the use of force as an element of the offense. He
contends that the offenses fail to meet either requirement.
      Because McGee did not object to the finding that he was subject to the
sentencing provisions of the ACCA based on these convictions, we review for
plain error. See United States v. Peltier, 505 F.3d 389, 391–92 (5th Cir. 2007).
To show plain error, McGee must show a forfeited error that is clear or obvious
and that affects his substantial rights. See Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes such a showing, we have the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
      We have held that the offense of aggravated robbery, as set forth in Texas
Penal Code § 29.03, is divisible. United States v. Lerma, 877 F.3d 628, 633–34
(5th Cir. 2017), petition for cert. filed (U.S. Apr. 18, 2018) (No. 17-8588). A
conviction under Texas Penal Code § 29.03(a)(2) is a violent felony under the
force clause of the ACCA. Id. at 636. Because the Texas aggravated robbery
statute is divisible, the modified categorical approach may be used to
determine under which portion of the statute McGee was convicted.            See
Descamps v. United States, 570 U.S. 254, 260–63 (2013). As in Lerma, the



                                       2
    Case: 16-11278    Document: 00514490590    Page: 3   Date Filed: 05/29/2018


                                No. 16-11278

relevant state court records show that McGee’s prior convictions involved the
commission of a robbery and using and exhibiting a deadly weapon. Those
elements correspond with the elements of aggravated robbery under Texas
Penal Code § 29.03(a)(2). See Lerma, 877 F.3d at 635. Because a conviction
for aggravated robbery under that section of the Texas statute has as an
element the threatened use of force, see id. at 636, the district court did not
plainly err in determining that it was a violent felony for purposes of the
ACCA, see Puckett, 556 U.S. at 135.
      McGee also argues that the Texas aggravated robbery statute does not
have force as an element because it can be committed with a mens rea of
recklessness and that the statute does not require actual use of a deadly
weapon and requires only mere possession.        These arguments fail.     The
Supreme Court has held that “misdemeanor assault convictions for reckless
(as contrasted to knowing or intentional) conduct” necessarily involve the use
of physical force, thus constituting a misdemeanor crime of domestic violence
under 18 U.S.C. § 922(g)(9). Voisine v. United States, 136 S. Ct. 2272, 2276
(2016). We have applied Voisine in the context of a U.S.S.G. § 2L1.2
enhancement and concluded that a recklessness mens rea does not preclude a
finding that an offense is a crime of violence under the use-of-force prong.
United States v. Mendez-Henriquez, 847 F.3d 214, 218–22 (5th Cir.), cert.
denied, 137 S. Ct. 2177 (2017). We also have applied cases interpreting the
use-of-force prongs in § 2L1.2 and § 924(e) interchangeably. United States v.
Moore, 635 F.3d 774, 776 (5th Cir. 2011). Additionally, the Texas Court of
Criminal Appeals has stated that use of a deadly weapon requires a showing
that the weapon was employed in a manner facilitating the offense and that
mere possession was not to be equated with the terms “use or exhibit” as set
forth in Texas Penal Code § 29.03(a)(2). McCain v. State, 22 S.W.3d 497, 503



                                      3
    Case: 16-11278     Document: 00514490590     Page: 4   Date Filed: 05/29/2018


                                  No. 16-11278

(Tex. Crim. App. 2000). Moreover, we held that use of a deadly weapon and
exhibition of a deadly weapon are separate elements of and not merely
alternative means of satisfying a single element. Lerma, 877 F.3d at 633–34.
Because McGee was charged and convicted of committing a robbery while
using and exhibiting a deadly weapon, the offenses are violent felonies under
the force clause of the ACCA. See id. at 635–36.
      As to his prior Texas conviction for murder, McGee presents no
meaningful argument challenging its classification as a violent felony under
the ACCA. McGee therefore fails to show that the district court committed
clear or obvious error in determining that his Texas murder conviction was a
violent felony under the provisions of the ACCA. See Puckett, 556 U.S. at 135.
      McGee also argues that Section 922(g) is facially unconstitutional and as
applied to him because it regulates conduct that falls outside the Government’s
power to regulate commerce. He correctly acknowledges that this issue is
foreclosed by United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). He
raises the issue to preserve for further review. McGee further asserts that
there is an insufficient factual basis for the element that he possessed a firearm
that was in or affected interstate commerce.        This argument is likewise
foreclosed. See United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
      Finally, McGee argues that the Government failed to establish that he
knew the firearm traveled in interstate commerce, citing McFadden v. United
States, 135 S. Ct. 2298 (2015). This argument is also foreclosed. See United
States v. Schmidt, 487 F.3d 253, 254–55 (5th Cir. 2007).
      The judgment of the district court is AFFIRMED.




                                        4
