United States v. Rodgers ( 2021 )

Case: 20-11087 Document: 00515888012 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 20-11087
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Cyze Ajjan Rodgers,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-565-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Cyze Ajjan Rodgers pleaded guilty to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he
was sentenced to 116 months of imprisonment and three years of supervised
release. Rodgers argues on appeal that the district court committed plain
*
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opinion should not be published and is not precedent except under the limited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: 20-11087 Document: 00515888012 Page: 2 Date Filed: 06/04/2021
No. 20-11087
error because the two prior Texas assault offenses that were used to calculate
his base offense level include the reckless causation of injury, and thus they
did not have “as an element the use, attempted use, or threatened use of
physical force against the person of another,” which would qualify them as
crimes of violence. U.S.S.G. § 4B1.2(a)(1); see U.S.S.G. § 2K2.1, cmt. (n.1).
He concedes that this argument is foreclosed. See United States v. Gracia-
Cantu, 920 F.3d 252, 254 (5th Cir. 2019), and United States v. Burris, 920
F.3d 942, 952 (5th Cir. 2019), petition for cert. filed (U.S. Oct. 3, 2019) (No.
19-6186). However, he seeks to preserve the issue for further review.
Agreeing that the issue is foreclosed, the Government has filed an unopposed
motion for summary affirmance or, in the alternative, a motion for an
extension of time to file a brief.
The parties are correct that Rodgers’s argument is foreclosed. See
Burris, 920 F.3d at 952; Gracia-Cantu, 920 F.3d at 254. Accordingly, the
Government’s motion for summary affirmance is GRANTED, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the
Government’s alternative motion for an extension of time to file a brief is
DENIED as moot, and the judgment is AFFIRMED.
2