# United States Court **of Appeals**  **f or 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 year s of supervised release. Following the

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 24, 2021
Lyle W. C ayce Clerk Case: 18-11324 Document: 00516107741 Page: 1 Date Filed: 11/24/2021No. 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, an d 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 iss uance 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 ro bbery 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 182 5; 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 positio n “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 Case: 18-11324 Document: 00516107741 Page: 2 Date Filed: 11/24/2021No. 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