USA v. Frank Kriegbaum

Filing

UNPUBLISHED OPINION FILED. [16-51196 Affirmed] Judge: WED, Judge: LHS, Judge: SAH. Mandate pull date is 08/09/2017 for Appellant Frank Kriegbaum; granting motion for summary affirmance filed by Appellee USA [8444779-2]; denying as moot motion to extend time to file appellee's brief filed by Appellee USA [8444779-3] [16-51196]

Case: 16-51196

Document: 00514080505

Page: 1

Date Filed: 07/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-51196
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
July 19, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANK KRIEGBAUM,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-1400-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Frank Kriegbaum pleaded guilty to receiving and possessing an
unregistered firearm and was sentenced to 96 months’ imprisonment. On
appeal, Kriegbaum argued that the district court erroneously calculated both
his criminal history score and his offense level, which was based on an
allegedly erroneous determination that Kriegbaum’s Texas robbery conviction
qualified as a crime of violence under the United States Sentencing Guidelines.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51196

Document: 00514080505

Page: 2

Date Filed: 07/19/2017

No. 16-51196
Upon the Government’s concession that Kriegbaum’s criminal history score
was incorrect, this court vacated his sentence and remanded for resentencing.
On remand, the district court imposed a sentence of 96 months’ imprisonment.
Kriegbaum again appeals, arguing that the district court incorrectly
calculated his base offense level under U.S.S.G. § 2K2.1 because his Texas
robbery conviction is not a crime of violence. For purposes of § 2K2.1, the term
“crime of violence” has the same meaning as in U.S.S.G. § 4B1.2(a) (2015) and
Application Note 1 of the Commentary to § 4B1.2. § 2K2.1, comment. (n.1)
(2015). Kriegbaum contends that Texas robbery is a crime of violence only
under the residual clause of former § 4B1.2(a)(2), which is unconstitutionally
vague because it contains the same language as the provision of the Armed
Career Criminal Act invalidated for vagueness in Johnson v. United States,
135 S. Ct. 2551 (2015).
In Beckles v. United States, 137 S. Ct. 886, 897 (2017), the Supreme
Court held that “the Sentencing Guidelines are not subject to a due process
vagueness challenge” and that therefore, “[former] § 4B1.2(a)’s residual clause
is not void for vagueness.” Beckles forecloses Kriegbaum’s only argument on
appeal.

Accordingly, we GRANT the Government’s motion for summary

affirmance. AFFIRM the judgment of the district court, and DENY as moot the
Government’s alternative motion for an extension of time to file its brief.

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