USA v. Kevin Petit

Filing

UNPUBLISHED OPINION FILED. [16-51382 Affirmed] Judge: CDK, Judge: JWE, Judge: SAH. Mandate issue date is 11/29/2017 for Appellant Kevin David Petit; granting motion for summary affirmance filed by Appellee USA [8527976-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8527976-3] [16-51382]

Case: 16-51382

Document: 00514229002

Page: 1

Date Filed: 11/07/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-51382
Summary Calendar

FILED
November 7, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KEVIN DAVID PETIT,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:16-CR-144-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Kevin David Petit pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced
to 71 months of imprisonment and three years of supervised release. He argues
that the district court plainly erred in determining that his Texas robbery
conviction is a crime of violence for purposes of imposing the base offense level
in U.S.S.G. § 2K2.1(a)(4)(A). He argues that Texas robbery is not a crime of

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51382

Document: 00514229002

Page: 2

Date Filed: 11/07/2017

No. 16-51382
violence because it lacks the requisite element of the use of force. He concedes,
however, that this court has already held that Texas robbery is a crime of
violence because it meets the generic definition of the enumerated crime-ofviolence offense of robbery. Compare U.S.S.G. § 4B1.2(a)(1) (force clause), with
§ 4B1.2(a)(2) (enumerated offense clause). Petit therefore raises his argument
to preserve it for further review.
The request for relief is foreclosed by United States v. SantiestebanHernandez, 469 F.3d 376, 380–81 (5th Cir. 2006), overruled on other grounds
by United States v. Rodriguez, 711 F.3d 541, 547–58 (5th Cir. 2013) (en banc),
in which we held that robbery in violation of Texas Penal Code § 29.02 meets
the generic definition of the enumerated crime-of-violence offense of robbery.
Accordingly, the Government’s motion for summary affirmance is GRANTED,
the Government’s alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.

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