United States v. Balderas ( 2021 )

Case: 20-10992 Document: 00515862475 Page: 1 Date Filed: 05/14/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-10992 May 14, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Modesto Balderas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-66-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Modesto Balderas appeals his guilty plea conviction and sentence for
being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and for
possessing a firearm with an obliterated serial number, 18 U.S.C. § 922(k).
According to Balderas, the district court erred in treating two of three prior
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10992 Document: 00515862475 Page: 2 Date Filed: 05/14/2021
No. 20-10992
Texas convictions, one for robbery and one for aggravated assault, as
predicate violent felonies under 18 U.S.C. § 924(e)(2)(B) and subjecting him
to enhanced penalties.
With respect to the robbery conviction, Balderas argues that the
offense is not a violent felony because it may be based on reckless conduct or
forceless injury and does not conform to the elements of common law
robbery. As Balderas concedes, his arguments are foreclosed. See United
States v. Reyes-Contreras, 910 F.3d 169, 183 (5th Cir. 2018) (en banc); United
States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019), petition for cert. filed (U.S.
Oct. 3, 2019) (No. 19-6186); and United States v. Griffin, 946 F.3d 759, 761-
62 (5th Cir.), cert. denied, 141 S. Ct. 306 (2020). Balderas’s challenge to the
treatment of his Texas aggravated assault conviction as a violent felony under
§ 924(e)(2)(B) based on the same forceless-injury argument is likewise
foreclosed, as he also concedes. See Griffin, 946 F.3d at 761; Reyes-Contreras,
910 F.3d at 183; see also United States v. Torres, 923 F.3d 420, 426 (5th Cir.
2019).
The Government has filed an unopposed motion for summary
affirmance, which is proper if “the position of one of the parties is clearly
right as a matter of law so that there can be no substantial question as to the
outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969). Because Balderas correctly concedes that his claims are
foreclosed by Reyes-Contreras, 910 F.3d 169; Burris, 920 F.3d 942; and
Griffin, 946 F.3d 759, the motion for summary affirmance is GRANTED
and the Government’s alternative motion for an extension of time to file a
brief is DENIED as moot. The judgment of the district court is
AFFIRMED.
2