Filed: May 27, 2020
Latest Update: May 27, 2020
Summary: Case: 19-11348 Document: 00515429474 Page: 1 Date Filed: 05/27/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-11348 May 27, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DESMOND HOWARD GREER, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CR-30-1 Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM: * D
Summary: Case: 19-11348 Document: 00515429474 Page: 1 Date Filed: 05/27/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-11348 May 27, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DESMOND HOWARD GREER, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CR-30-1 Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM: * De..
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Case: 19-11348 Document: 00515429474 Page: 1 Date Filed: 05/27/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11348 May 27, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DESMOND HOWARD GREER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-30-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Desmond Howard Greer appeals his 120-month, within-guidelines
sentence for being a convicted felon in possession of a firearm. Greer contends
that the district court’s application of the enhanced base offense level under
U.S.S.G. § 2K2.1(a)(1) was erroneous because his Texas convictions for assault
family violence impeding breath or circulation and assault family violence with
prior convictions do not qualify as crimes of violence, given that the statute of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11348 Document: 00515429474 Page: 2 Date Filed: 05/27/2020
No. 19-11348
conviction criminalizes reckless conduct and therefore lacks force as an
element. The Government moves for summary affirmance, arguing that
Greer’s argument is foreclosed.
In his brief, Greer correctly concedes that his argument is foreclosed, and
he raises it only to preserve the issue for future review. See United States v.
Reyes-Contreras,
910 F.3d 169, 173-74, 183 (5th Cir. 2018) (en banc) (holding
that the term “use of physical force” does not require the use of force to be
intentional and thus applies to reckless conduct); United States v. Howell,
838
F.3d 489, 490-92, 501-03 (5th Cir. 2016) (holding that the Texas offense of
assault family violence by impeding breathing or circulation qualifies as a
crime of violence under § 2K2.1). The Government is “clearly right as a matter
of law” such 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).
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.
2