United States Court of Appeals

for the Fifth Circuit

No. 18-11324

Summary Calendar

United States of America, 

Plaintiff—Appellant,

versus

Lucian Lee Spann, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CR-126-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Lucian Lee Spann pleaded guilty to one count of being a felon in 

possession of a firearm and was sentenced pursuant to the Armed Career 

Criminal Act (ACCA) to 204 months of imprisonment, with credit for 20 

months of time served, and two years of supervised release. Following the 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 24, 2021

Lyle W. Cayce

Clerk

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No. 18-11324

2

Supreme Court’s decision in Johnson v. United States, 576 U.S. 591, 606

(2015), Spann filed a 28 U.S.C. § 2255 motion to vacate his conviction, 

arguing that his Texas robbery, evading arrest, and aggravated assault 

convictions no longer qualified as violent felonies. The district court granted 

the motion, finding that Texas robbery no longer constituted a violent felony, 

and resentenced Spann to 63 months of imprisonment, with credit for 20 

months of time served, and three years of supervised release. The 

Government filed this appeal.

The Government argues that Texas robbery is a violent felony under 

the ACCA because it has the use, attempted use, or threatened use of 

physical force as an element. Following the issuance of Borden v. United 

States, 141 S. Ct. 1817 (2021), Spann filed an unopposed motion for summary 

affirmance, arguing that Borden foreclosed the Government’s argument. In 

the alternative, Spann requests an extension of time to file his brief. 

Borden held that offenses with a mens rea of recklessness are not 

encompassed within the elements clause of the “violent felony” definition in 

the ACCA. 141 S. Ct. at 1825, 1834. Spann was convicted of violating Texas 

Penal Code § 29.02(a)(1), which defines robbery as a theft committed with 

intent to control or maintain the property where the offender “intentionally, 

knowingly, or recklessly cause[d] bodily injury to another.” Therefore, as 

Spann argues, Borden forecloses the Government’s argument that Spann’s

Texas robbery conviction is a violent felony pursuant to the ACCA. See 

Borden, 141 S. Ct. at 1825; see also United States v. Ybarra, ___ F. App’x ___, 

No. 20-10520, 2021 WL 3276471, at *1-2 (5th Cir. July 30, 2021) 

(unpublished).

Because Spann’s position “is clearly right as a matter of law so 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), his 

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No. 18-11324

3

motion for summary affirmance is GRANTED, his alternative motion for 

an extension of time to file a brief is DENIED, and the judgment of the 

district court is AFFIRMED.

Case: 18-11324 Document: 00516107741 Page: 3 Date Filed: 11/24/2021