USA v. Donielle Ross


UNPUBLISHED OPINION FILED. [16-11443 Affirmed ] Judge: EGJ , Judge: JES , Judge: JEG Mandate pull date is 05/23/2017 for Appellant Donielle Rashi Ross; granting motion for summary affirmance filed by Appellee USA [8420045-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8420045-3] [16-11443]

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Case: 16-11443 Document: 00513976184 Page: 1 Date Filed: 05/02/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11443 Summary Calendar United States Court of Appeals Fifth Circuit FILED May 2, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DONIELLE RASHI ROSS, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CR-192-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Donielle Rashi Ross appeals the sentence imposed pursuant to his convictions for being a felon in possession of a firearm, possession with intent to distribute a controlled substance, and possession of a firearm in furtherance of a drug trafficking offense. Ross argues that the district court erred in classifying his prior assault conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)(B) as a “crime of violence” for purposes of a U.S.S.G. § 2K2.1(a)(4)(A) 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11443 Document: 00513976184 Page: 2 Date Filed: 05/02/2017 No. 16-11443 enhancement; however, he concedes that the issue is foreclosed by United States v. Howell, 838 F.3d 489, 501-03 (5th Cir. 2016), cert. denied, 137 S. Ct. 1108 (2017), and raises it solely to preserve its further review. Howell held that the offense of assault under Texas Penal Code § 22.01(a)(1) and (b)(2)(B) is a crime of violence under the Sentencing Guidelines. 838 F.3d at 501-03. The Government has moved unopposed and pursuant to Howell for summary affirmance or, in the alternative, for an extension of time in which to file a responsive brief. The Government’s motion for summary affirmance is GRANTED, and its alternative motion is DENIED. AFFIRMED. 2

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