Case: 21-50767 Document: 00516203920 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 15, 2022
No. 21-50767 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ruben Aguilera,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-62-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Ruben Aguilera was sentenced to 180 months of imprisonment
following his guilty plea conviction for being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On appeal, he contends
that his three Texas Penal Code § 30.02(a) convictions for burglary do not
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50767 Document: 00516203920 Page: 2 Date Filed: 02/15/2022
No. 21-50767
qualify as violent felonies under the Armed Career Criminal Act (ACCA) and
that two of the convictions should have counted as one conviction for
purposes of determining whether he was an armed career criminal. The
Government has filed a motion for summary affirmance or, in the alternative,
for an extension of time to file a merits brief, asserting that Aguilera’s
arguments are foreclosed by circuit precedent. Aguilera opposes the motion
for summary affirmance and does not concede foreclosure.
As acknowledged by Aguilera, we have held that Texas burglary is a
generic burglary and is therefore a violent felony under the ACCA. United
States v. Herrold, 941 F.3d 173, 176-82 (5th Cir. 2019) (en banc). Although
he claims that Herrold was wrongly decided, “‘in the absence of an
intervening contrary or superseding decision by this court sitting en banc or
by the United States Supreme Court,’” we are bound by our precedent.
United States v. Montgomery, 974 F.3d 587, 590 n.4 (5th Cir. 2020) (quoting
United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010)), cert. denied, 141 S.
Ct. 2823 (2021).
Moreover, Aguilera’s three prior burglary convictions were for
offenses that were committed sequentially, not simultaneously, and therefore
were offenses that occurred on “‘occasions different from one another.’”
United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006) (quoting United
States v. Ressler, 54 F.3d 257, 260 (5th Cir. 1995)). The mere fact that
Aguilera was sentenced to two of these offenses on the same day does not
change this conclusion. See United States v. White, 465 F.3d 250, 253 (5th
Cir. 2006).
In light of the foregoing, the Government’s opposed motion for
summary affirmance is DENIED, see Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), the alternative motion for an extension of
2
Case: 21-50767 Document: 00516203920 Page: 3 Date Filed: 02/15/2022
No. 21-50767
time in which to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.
3