United States v. McCarter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-11011
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DESHAWN MCCARTER,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-285-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Deshawn McCarter appeals his 37-month sentence imposed following his
guilty plea for being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Raising one issue on appeal, McCarter argues that the district court
erred in finding that his prior California robbery conviction is a “crime of
violence” sufficient to qualify him for a base offense level of 20 pursuant to

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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.
United States Court of Appeals
Fifth Circuit
FILED
May 19, 2020

Lyle W. Cayce
Clerk
Case: 19-11011 Document: 00515422048 Page: 1 Date Filed: 05/19/2020

No. 19-11011
2
U.S.S.G. § 2K2.1(a)(4)(A). According to McCarter, his California robbery
conviction does not qualify as a crime of violence because it criminalizes a
broader range of conduct than generic robbery or generic extortion. McCarter
acknowledges that this argument is foreclosed by United States v. Tellez-
Martinez ̧ 517 F.3d 813 (5th Cir. 2008), but raises the issue to preserve it for
further review. The Government filed an unopposed motion for summary
affirmance agreeing that the issue is foreclosed and, in the alternative, a
motion for an extension of time to file a brief.
As the Government argues, and McCarter concedes, the sole issue raised
on appeal is foreclosed by Tellez-Martinez, 517 F.3d at 814-15, wherein we held
that the relevant statute, California Penal Code § 211, fell within the “generic
or contemporary meaning of robbery as understood by this court” and thus
qualified as a crime of violence under the former U.S.S.G. § 2L1.2(b)(1)(A)(ii).
See United States v. Montiel-Cortez, 849 F.3d 221, 226-27 nn.10-20 (5th
Cir. 2017); see also United States v. Flores-Vasquez, 641 F.3d 667, 670 n.1 (5th
Cir. 2011) (noting that a prior conviction that qualifies as a “crime of violence”
under the former § 2L1.2, also qualifies as a crime of violence under § 4B1.2).
Because the issue is foreclosed, summary affirmance is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
Case: 19-11011 Document: 00515422048 Page: 2 Date Filed: 05/19/2020