IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11356

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLIFFORD GENE WALLACE,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CR-572-1

Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Clifford Gene Wallace appeals the sentence imposed following his guilty 

plea to possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) and 

possession with intent to distribute a controlled substance in violation of 21 

U.S.C. § 841. He argues that the district court erred in assigning him a higher 

base offense level under U.S.S.G. § 2K2.1(a) and U.S.S.G. § 4B1.2 based in part 

on its finding that his prior Texas conviction of aggravated assault of a public 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 2, 2019

Lyle W. Cayce

Clerk

 Case: 18-11356 Document: 00515061342 Page: 1 Date Filed: 08/02/2019
No. 18-11356

2

servant with a deadly weapon is a crime of violence. He asserts that the Texas 

aggravated assault statute does not have the use, attempted use, or threatened 

use of force as an element of the offense.

The Government has filed an unopposed motion for summary 

affirmance, correctly asserting that the issue raised on appeal is foreclosed. 

See United States v. Guillen-Alvarez, 489 F.3d 197, 200-01 (5th Cir. 2007) 

(holding that a Texas aggravated assault conviction under Texas Penal Code 

§ 22.02 is a crime of violence under U.S.S.G. § 2L1.2); see also United States v. 

Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017) (reaffirming Guillen-Alvarez

after Mathis v. United States, 136 S. Ct. 2243 (2016), and holding that Texas 

aggravated assault is a crime of violence under § 2K2.1(a)(2) and § 4B1.2). 

Wallace concedes that this issue is foreclosed, but he seeks to preserve it for 

further review. Therefore, summary affirmance is appropriate. See Groendyke 

Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

In addition, Wallace contends that the district court erred in assigning 

him a higher base offense level under § 2K2.1(a) and § 4B1.2 based in part on 

its finding that his prior Texas conviction of aggravated robbery with a deadly 

weapon is a crime of violence. He asserts that the Texas robbery offense is 

broader than the generic definition of robbery and does not have the use of 

force as an element of the offense.

In its motion for summary affirmance, the Government correctly asserts 

that this argument is foreclosed by United States v. Lerma, 877 F.3d 628, 630, 

634-36 (5th Cir. 2017) (28 U.S.C. § 2255 case), cert. denied, 138 S. Ct. 2585 

(2018), and 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), abrogated on other grounds by 

Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017). Wallace concedes 

 Case: 18-11356 Document: 00515061342 Page: 2 Date Filed: 08/02/2019
No. 18-11356

3

that this argument is foreclosed and states that he is raising it to preserve it 

for further review. Therefore, summary judgment is appropriate. See

Groendyke Transp., Inc., 406 F.2d at 1162.

Accordingly, the Government’s motion for summary affirmance is 

GRANTED, the Government’s alternative motion for an extension of time to

file a brief is DENIED, and the judgment of the district court is AFFIRMED.

 Case: 18-11356 Document: 00515061342 Page: 3 Date Filed: 08/02/2019