United States v. Carviel

Case: 20-11238 Document: 00516070263 Page: 1 Date Filed: 10/26/2021

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
October 26, 2021
No. 20-11238 Lyle W. Cayce
Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Desmond Deleon Carviel,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-98-4

Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Desmond Deleon Carviel appeals the 120-month, below-guidelines
sentence of imprisonment imposed following his guilty-plea conviction for
conspiracy to commit a violation of 18 U.S.C. § 924(c). Carviel asserts that
he was improperly classified as a career offender because his instant

*
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opinion should not be published and is not precedent except under the limited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: 20-11238 Document: 00516070263 Page: 2 Date Filed: 10/26/2021

No. 20-11238

conspiracy conviction does not satisfy the definition of a “controlled
substance offense” set forth in U.S.S.G. § 4B1.2(b).
He concedes that this argument is foreclosed by United States v.
Lightbourn, 115 F.3d 291, 292-93 (5th Cir. 1997), but seeks to preserve the
issue for further review. The Government agrees and has filed an unopposed
motion for summary affirmance and, in the alternative, a motion for an
extension of time to file a brief.
The parties are correct that the sole issue is foreclosed by Lightbourn.
See United States v. Kendrick, 980 F.3d 432, 444 (5th Cir. 2020), cert. denied,
2021 WL 2637919 (U.S. June 28, 2021) (No. 20-7667). Thus, 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 AS MOOT.