     Case: 17-10655      Document: 00515438858         Page: 1    Date Filed: 06/03/2020




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

                                                                           FILED
                                                                         June 3, 2020
                                    No. 17-10655                        Lyle W. Cayce
                                  Summary Calendar                           Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL DAVID LISTER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-172-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Michael David Lister appeals his conviction for being a felon in
possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(e), and his
sentence of 180 months in prison. The Government has moved for summary
affirmance or, in the alternative, an expansion of time in which to file a brief.
Lister argues that his three prior convictions for Texas burglary of a habitation
and aggravated assault do not qualify as violent felonies that trigger the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH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.
    Case: 17-10655     Document: 00515438858      Page: 2   Date Filed: 06/03/2020


                                  No. 17-10655

penalty provisions under § 924(e). See TEX. PENAL CODE §§ 22.02, 30.02. This
court sitting en banc in United States v. Herrold, 941 F.3d 173, 175, 177, 182
(5th Cir. 2019) (en banc), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-
7731), concluded that, although the Texas burglary statute consists of multiple
subsections, the statute creates one indivisible offense that constitutes generic
burglary, as Lister acknowledges. In reaching that conclusion, this court
considered and rejected the arguments which Lister presents. Id. at 178-82.
Therefore, the Government “is clearly right as a matter of law” and there
remains “no substantial question” as to the classification of his prior burglary
convictions as violent felonies under § 924(e). Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). Likewise, and as Lister concedes, this
court’s decision in United States v. Gracia-Cantu, 920 F.3d 252, 253-54 (5th
Cir.), cert. denied, 140 S. Ct. 157 (2019), forecloses Lister’s challenge to the
treatment of his Texas aggravated assault conviction as a violent felony under
§ 924(e). See Groendyke Transp., Inc., 406 F.2d at 1162. Lastly, and as Lister
admits, this court has rejected fair warning challenges to the classification of
prior convictions as violent felonies. See, e.g., United States v. Burris, 920 F.3d
942, 952-53 (5th Cir. 2019), petition for cert. filed (U.S. Oct. 3, 2019) (No. 19-
6186).
      The Government’s motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED.




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