IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20322

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL OERTHER,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CR-269-1

Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges

PER CURIAM:*

Michael Oerther pleaded guilty to being a felon in possession of a 

firearm, and he received a within-guidelines sentence of 57 months in prison. 

On appeal, he contends that the district court wrongly imposed a base offense 

level pursuant to U.S.S.G. § 2K2.1(a)(3) because his prior Texas felony robbery 

conviction does not qualify as a crime of violence. Oerther concedes that this 

court has previously held that Texas robbery satisfies the generic, 

 

* 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

March 22, 2019

Lyle W. Cayce

Clerk

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No. 17-20322

2

contemporary meaning of “robbery” and thus is an enumerated COV under 

§ 2K2.1(a)(3) & comment. (n.1) and U.S.S.G. § 4B1.2(a)(2). See United States 

v. Santiesteban-Hernandez, 469 F.3d 376, 381 (5th Cir. 2006), overruled in part 

on other grounds by United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) 

(en banc). He maintains, however, that since our decision in SantiestebanHernandez, the Texas Court of Criminal Appeals (TCCA) has broadened the 

scope of Texas robbery so that it no longer fits within the generic definition of 

robbery. In support of this contention, Oerther cites to Howard v. State, 333 

S.W.3d 137, 137-40 (Tex. Crim. App. 2011), in which the TCCA held that a 

defendant need not physically interact with the victim for the offense to qualify 

as robbery.

This contention is without merit. In Santiesteban-Hernandez, we 

repudiated the notion that generic robbery specifically requires the defendant 

to take the property from the person or presence of another, concluding instead 

that the Texas statute satisfied the common-law requirement that a victim be 

placed in “immediate danger” by requiring a defendant to cause or threaten 

bodily injury to the victim. See Santiesteban-Hernandez, 469 F.3d at 380-81. 

Even if Oerther is correct in his assertion that generic robbery requires the 

defendant to take property from the presence of the victim, Howard is 

consistent with such a conclusion. Although the victim in Howard was in a 

different room when the robbery occurred, the property was sufficiently within 

the victim’s control that he could have retained his possession of it if he had 

not been overcome by fear. See Howard, 333 S.W.3d at 137-38.

Nothing in Howard undermines our prior precedent that “the elements 

of the Texas statute substantially correspond to the basic elements of the 

generic offense.” Santiesteban-Hernandez, 469 F.3d at 381. Accordingly, 

under this court’s precedent, Texas robbery is no broader than generic robbery. 

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No. 17-20322

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See Bustos v. Martini Club Inc., 599 F.3d 458, 462-63 (5th Cir. 2010) (stating 

that this court applies precedential opinions interpreting state law unless a 

subsequent decision by the state courts or amendment to the relevant statutes 

makes the panel decision clearly incorrect). The judgment of the district court 

is therefore AFFIRMED. 

 Case: 17-20322 Document: 00514885184 Page: 3 Date Filed: 03/22/2019