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UNPUBLISHED OPINION FILED.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]
Date Filed: 07/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
July 27, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
ALEXIS RASHAAD FAVORS,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 07/27/2017
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.”
regarding § 4B1.2(a)(2)’s residual clause and Application Note One are thus
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).
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