USA v. Alexis Favor


UNPUBLISHED OPINION FILED. [16-10389 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate pull date is 08/17/2017 for Appellant Alexis Rashaad Favors [16-10389]

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Case: 16-10389 Document: 00514091100 Page: 1 Date Filed: 07/27/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10389 Summary Calendar United States Court of Appeals Fifth Circuit FILED July 27, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALEXIS RASHAAD FAVORS, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15-CR-251-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Defendant-Appellant Alexis Rashaad Favors pleaded guilty, without a plea agreement, to one count of possession of a firearm by a felon. He now challenges his sentence, contending that the district court plainly erred in characterizing his prior conviction for aggravated assault with a deadly weapon under Texas Penal Code § 22.02 as a crime of violence for purposes of U.S.S.G. § 2K2.1(a)(3) (2015) and U.S.S.G. § 4B1.2 (2015). Favors insists that, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-10389 Document: 00514091100 Page: 2 Date Filed: 07/27/2017 No. 16-10389 even though aggravated assault is enumerated as a crime of violence in Application Note One in the commentary of § 4B1.2, the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated both the residual clause of § 4B1.2(a)(2) and the note. He further maintains that his prior Texas offense does not qualify as a crime of violence under § 4B1.2(a)(2) because aggravated assault is not one of the four offenses it enumerates. Finally, Favors claims that his prior offense does not satisfy the force-as-an-element clause of § 4B1.2(a)(1). After Favors submitted his appellate brief, the Supreme Court held, in Beckles v. United States, 137 S. Ct. 886, 892 (2017), that § 4B1.2(a)(2)’s residual clause “is not void for vagueness” because “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.” Favors’s arguments regarding § 4B1.2(a)(2)’s residual clause and Application Note One are thus unavailing. We have previously held that a Texas aggravated assault conviction constitutes the enumerated “aggravated assault” offense. United States v. Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007); United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002). Furthermore, we have recently confirmed that Texas’s crime of aggravated assault satisfies § 4B1.2(a)(1)’s force-as-an-element clause. See United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir. 2017). The district court did not plainly err. See United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015). AFFIRMED. 2

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