United States v. Jeffery Deal

Case: 16-20133 Document: 00514074227 Page: 1 Date Filed: 07/14/2017

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

No. 16-20133 FILED
Summary Calendar July 14, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

JEFFERY ARNOLD DEAL,

Defendant–Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-336-1

Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Jeffery Arnold Deal pleaded guilty to an indictment charging him with
two counts of being a convicted felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The district court sentenced him to concurrent terms of
63 months of imprisonment and three years of supervised release.
On appeal, Deal challenges the calculation of his guidelines range of
imprisonment under U.S.S.G. § 2K2.1(a)(4)(A), which states that the base

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20133 Document: 00514074227 Page: 2 Date Filed: 07/14/2017

No. 16-20133

offense level is 20 if the offense occurred subsequent to a felony conviction for
a crime of violence. He avers that his Texas conviction for robbery no longer
qualifies as a crime of violence because the former residual clause and
accompanying commentary of U.S.S.G. § 4B1.2(a)(2) are invalid in light of
Johnson v. United States, 135 S. Ct. 2551 (2015). That argument is unavailing,
see Beckles v. United States, 137 S. Ct. 886, 892 (2017), and Texas robbery
qualifies as an enumerated crime of violence under the former commentary to
§ 4B1.2, see United States v. Santiesteban-Hernandez, 469 F.3d 376, 380-81
(5th Cir. 2006), overruled on other grounds by United States v. Rodriguez, 711
F.3d 541, 547-63 (5th Cir. 2013) (en banc); United States v. Moore, 635 F.3d
774, 776 (5th Cir. 2011); United States v. Velasco, 465 F.3d 633, 641 n.9 (5th
Cir. 2006) (definitions of crime of violence set forth in U.S.S.G. §§ 4B1.2 and
2L1.2 are treated interchangeably). Because the offense qualifies as an
enumerated crime of violence, we need not address Deal’s additional argument
that Texas robbery does not constitute a crime of violence under § 4B1.2
because it lacks the element of use, threatened use, or attempted use of force.
See United States v. Olalde-Hernandez, 630 F.3d 372, 376 (5th Cir. 2011).
AFFIRMED.

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