Case: 17-20322      Document: 00514885184         Page: 1    Date Filed: 03/22/2019




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

                                    No. 17-20322                             FILED
                                  Summary Calendar                     March 22, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL OERTHER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CR-269-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges
PER CURIAM: *
       Michael Oerther pleaded guilty to being a felon in possession of a
firearm, and he received a within-guidelines sentence of 57 months in prison.
On appeal, he contends that the district court wrongly imposed a base offense
level pursuant to U.S.S.G. § 2K2.1(a)(3) because his prior Texas felony robbery
conviction does not qualify as a crime of violence. Oerther concedes that this
court has previously held that Texas robbery satisfies the generic,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-20322     Document: 00514885184    Page: 2   Date Filed: 03/22/2019


                                 No. 17-20322

contemporary meaning of “robbery” and thus is an enumerated COV under
§ 2K2.1(a)(3) & comment. (n.1) and U.S.S.G. § 4B1.2(a)(2). See United States
v. Santiesteban-Hernandez, 

, 381 (5th Cir. 2006), overruled in part
on other grounds by United States v. Rodriguez, 

(5th Cir. 2013)
(en banc). He maintains, however, that since our decision in Santiesteban-
Hernandez, the Texas Court of Criminal Appeals (TCCA) has broadened the
scope of Texas robbery so that it no longer fits within the generic definition of
robbery. In support of this contention, Oerther cites to Howard v. State, 

, 137-40 (Tex. Crim. App. 2011), in which the TCCA held that a
defendant need not physically interact with the victim for the offense to qualify
as robbery.
      This contention is without merit.        In Santiesteban-Hernandez, we
repudiated the notion that generic robbery specifically requires the defendant
to take the property from the person or presence of another, concluding instead
that the Texas statute satisfied the common-law requirement that a victim be
placed in “immediate danger” by requiring a defendant to cause or threaten
bodily injury to the victim. See 

.
Even if Oerther is correct in his assertion that generic robbery requires the
defendant to take property from the presence of the victim, Howard is
consistent with such a conclusion. Although the victim in Howard was in a
different room when the robbery occurred, the property was sufficiently within
the victim’s control that he could have retained his possession of it if he had
not been overcome by fear. See 

.
      Nothing in Howard undermines our prior precedent that “the elements
of the Texas statute substantially correspond to the basic elements of the
generic offense.”    

.       Accordingly,
under this court’s precedent, Texas robbery is no broader than generic robbery.



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    Case: 17-20322    Document: 00514885184    Page: 3   Date Filed: 03/22/2019


                                No. 17-20322

See Bustos v. Martini Club Inc., 

, 462-63 (5th Cir. 2010) (stating
that this court applies precedential opinions interpreting state law unless a
subsequent decision by the state courts or amendment to the relevant statutes
makes the panel decision clearly incorrect). The judgment of the district court
is therefore AFFIRMED.




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