IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10516

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellant Cross-Appellee

v.

DAVID LEE GARRETT,

Defendant - Appellee Cross-Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-107-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

David Lee Garrett pleaded guilty to possession of a firearm by a felon in 

violation of 18 U.S.C. § 922(g)(1) and was sentenced under 18 U.S.C. § 924(a)(2) 

to 84 months of imprisonment and three years of supervised release. Although 

the district court determined that Garrett’s two prior convictions for burglary 

of a habitation under Texas Penal Code § 30.02(a) qualified as violent felonies

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the court 

* 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

June 25, 2020

Lyle W. Cayce

Clerk

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No. 17-10516

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agreed with Garrett that his prior conviction for robbery under Texas Penal 

Code § 29.02 did not meet the statutory definition of “violent felony.”

On appeal, the Government contends that Garrett’s sentence should be 

vacated and the case remanded for resentencing because now-binding 

precedent holds that Texas robbery is a violent felony under § 924(e). See 

United States v. Burris, 920 F.3d 942, 945, 948 & n.31 (5th Cir. 2019), petition 

for cert. filed (U.S. Oct. 3, 2019) (No. 19-6186). Garrett cross-appeals, arguing 

that his conviction should be reversed because § 922(g)(1) is facially 

unconstitutional and further that Texas robbery does not qualify as a violent 

felony under the ACCA. Alternatively, Garrett argues that his non-ACCA 

sentence should be affirmed because Texas burglary is not generic burglary 

and thus does not qualify as a violent felony. See § 924(e)(2)(B)(ii). He concedes 

that his first two arguments are foreclosed, and he raises those arguments to 

preserve them for further review. The Government, in turn, moves for 

summary affirmance as to the judgment of conviction, and it moves for 

summary disposition, or vacatur, as to the sentence imposed.

Summary affirmance or disposition is proper where, among other 

instances, “the position of one of the parties 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). 

Garrett’s argument that § 922(g)(1) is unconstitutional because it exceeds the 

scope of Congress’s power under the Commerce Clause is foreclosed. See 

United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013); United States v. 

De Leon, 170 F.3d 494, 499 (5th Cir. 1999). Accordingly, summary affirmance 

of his conviction is proper. See Groendyke Transp., Inc., 406 F.2d at 1162.

In addition, the sentencing issues presented on appeal and cross-appeal 

are foreclosed by United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019) 

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(en banc), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-7731), and Burris, 

920 F.3d at 945, 948 & n.31. In Burris, this court concluded that robbery-bythreat and robbery-by-injury under Texas Penal Code § 29.02 both require the 

“use, attempted use, or threatened use of physical force” and are violent 

felonies under § 924(e)(2)(B)(i)’s force clause. Burris, 920 F.3d at 945, 948

& n.31 (quotation at 945) (internal quotation marks omitted). In Herrold, this 

court held that Texas burglary is “generic burglary” and is a violent felony 

under the ACCA. Herrold, 941 F.3d at 182. Thus, the argument that Garrett’s 

Texas robbery and burglary convictions are not violent felonies is foreclosed by 

current circuit precedent, and summary disposition, or vacatur, is appropriate. 

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

In light of the foregoing, the Government’s motion for summary 

affirmance and for summary disposition is GRANTED. The Government’s 

alternative motion for an extension of time to file a brief is DENIED. Garrett’s 

conviction is AFFIRMED, his sentence is VACATED, and the case is 

REMANDED for resentencing.

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