     Case: 18-10235      Document: 00515372059         Page: 1    Date Filed: 04/03/2020




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

                                                                                FILED
                                    No. 18-10235                             April 3, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID MATTHEWS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-121-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       David Matthews appeals his 265-month sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He
argues that his prior convictions for Texas robbery and Texas burglary of a
habitation are not categorically violent felonies under the Armed Career
Criminal Act (ACCA), but concedes that these issues are foreclosed by United
States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), petition for cert. filed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10235         Document: 00515372059   Page: 2   Date Filed: 04/03/2020


                                    No. 18-10235

(U.S. Feb. 18, 2020) (No.19-7731), and United States v. Burris, 920 F.3d 942
(5th Cir. 2019), petition for cert. filed (U.S. Oct. 3, 2019) (No. 19-6186). The
Government has moved for summary affirmance or, alternatively, an extension
of time to file a brief.
      Summary affirmance 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).           Matthews’s
arguments are foreclosed by Herrold, 941 F.3d at 182, and Burris, 920 F.3d at
945, 948. 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, 958 (quote at 945).
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 Matthews’s Texas robbery and burglary convictions are not violent
felonies is foreclosed, and summary affirmance is proper.          See Groendyke
Transp., Inc., 406 F.2d at 1162
      In light of the foregoing, the Government’s motion for summary
affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s
alternative motion for an extension of time to file a brief is DENIED.
Matthews’s motion to stay is DENIED.




                                          2
