     Case: 14-11012      Document: 00513182460         Page: 1    Date Filed: 09/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-11012
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 4, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff–Appellee,

versus

DARNELL CHRISTOPHER BRYANT,

                                                 Defendant–Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-235-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Darnell Bryant appeals his sentence for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). For the first time on appeal, he
claims that his Texas conviction of burglary of a habitation was not a crime of
violence (“COV”) for purposes of U.S.S.G. § 2K2.1(a)(4)(A). He urges that this


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-11012    Document: 00513182460       Page: 2   Date Filed: 09/04/2015


                                 No. 14-11012

is so because the Texas statute is not divisible and includes conduct that does
not constitute the generic offense of burglary.

      Because Bryant did not raise this issue in the district court, review is
limited to plain error, see United States v. Chavez-Hernandez, 671 F.3d 494,
497 (5th Cir. 2012), so he must show clear or obvious error that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
will do so only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.

      The government has moved for summary affirmance on the ground that
Bryant’s argument is foreclosed by United States v. Conde-Castaneda, 753 F.3d
172, 176–77 (5th Cir.), cert. denied, 135 S. Ct. 311 (2014), holding that the
Texas burglary-of-a-habitation statute is divisible, that the modified categori-
cal approach applies, and that courts can consult Shepard-approved docu-
ments, see Shepard v. United States, 544 U.S. 13, 16 (2005), to determine which
of the three alternatives of Section 30.02(a) of the Texas Penal Code forms the
basis of the conviction. In Conde-Castaneda we further held that, where, as
here, a defendant was indicted under both Section 30.02(a)(1) and (3), and the
written judicial confession showed that he was convicted of violating “each and
every act” in the indictment, he therefore was convicted under both subsec-
tions, meaning that the burglary conviction qualified as a COV. Id. at 178–79;
See United States v. Garcia, 420 F.3d 454, 456–57 (5th Cir. 2005).

      Bryant concedes that his argument is foreclosed. The motion for sum-
mary affirmance is GRANTED. The government’s alternative motion for an
extension of time to file its brief is DENIED as unnecessary. The judgment of
sentence is AFFIRMED.



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