     Case: 18-11356      Document: 00515061342         Page: 1    Date Filed: 08/02/2019




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

                                                                                FILED
                                    No. 18-11356                           August 2, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLIFFORD GENE WALLACE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-572-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Clifford Gene Wallace appeals the sentence imposed following his guilty
plea to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) and
possession with intent to distribute a controlled substance in violation of 21
U.S.C. § 841. He argues that the district court erred in assigning him a higher
base offense level under U.S.S.G. § 2K2.1(a) and U.S.S.G. § 4B1.2 based in part
on its finding that his prior Texas conviction of aggravated assault of a public


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-11356

servant with a deadly weapon is a crime of violence. He asserts that the Texas
aggravated assault statute does not have the use, attempted use, or threatened
use of force as an element of the offense.
      The Government has filed an unopposed motion for summary
affirmance, correctly asserting that the issue raised on appeal is foreclosed.
See United States v. Guillen-Alvarez, 489 F.3d 197, 200-01 (5th Cir. 2007)
(holding that a Texas aggravated assault conviction under Texas Penal Code
§ 22.02 is a crime of violence under U.S.S.G. § 2L1.2); see also United States v.
Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017) (reaffirming Guillen-Alvarez
after Mathis v. United States, 136 S. Ct. 2243 (2016), and holding that Texas
aggravated assault is a crime of violence under § 2K2.1(a)(2) and § 4B1.2).
Wallace concedes that this issue is foreclosed, but he seeks to preserve it for
further review. Therefore, summary affirmance is appropriate. See Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      In addition, Wallace contends that the district court erred in assigning
him a higher base offense level under § 2K2.1(a) and § 4B1.2 based in part on
its finding that his prior Texas conviction of aggravated robbery with a deadly
weapon is a crime of violence. He asserts that the Texas robbery offense is
broader than the generic definition of robbery and does not have the use of
force as an element of the offense.
      In its motion for summary affirmance, the Government correctly asserts
that this argument is foreclosed by United States v. Lerma, 877 F.3d 628, 630,
634-36 (5th Cir. 2017) (28 U.S.C. § 2255 case), cert. denied, 138 S. Ct. 2585
(2018), and United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81
(5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711
F.3d 541, 547-63 (5th Cir. 2013) (en banc), abrogated on other grounds by
Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017). Wallace concedes



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                                 No. 18-11356

that this argument is foreclosed and states that he is raising it to preserve it
for further review.    Therefore, summary judgment is appropriate.           See
Groendyke Transp., Inc., 406 F.2d at 1162.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time to
file a brief is DENIED, and the judgment of the district court is AFFIRMED.




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