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United States v. Antwaine Yarbrough ( 2019 )


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  •      Case: 18-11138      Document: 00514957125         Page: 1    Date Filed: 05/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-11138                            May 15, 2019
Summary Calendar                         Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTWAINE ENTA YARBROUGH,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-198-1
Before KING, SOUTHWICK, and DUNCAN, Circuit Judges.
PER CURIAM: *
Antwaine Enta Yarbrough appeals the 180-month statutory minimum
sentence imposed following his guilty plea to possession of a firearm by a
convicted felon. Yarbrough argues that: (1) his prior Texas convictions for
possession with intent to deliver a controlled substance and for delivery of a
controlled substance are not serious drug offenses for purposes of the Armed
Career Criminal Act enhancement, 18 U.S.C. § 924(e), and (2) his sentence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11138      Document: 00514957125     Page: 2      Date Filed: 05/15/2019
No. 18-11138
violates his due-process rights because his indictment did not specify the prior
convictions that formed the basis of his sentencing enhancement and he did
not admit to the convictions in the factual resume supporting his guilty plea.
The Government has filed an unopposed motion for summary affirmance and,
alternatively, seeks an extension of time to file its brief.
As the Government argues and Yarbrough concedes, his first issue is
foreclosed by United States v. Cain,
    877 F.3d 562
    , 562-63 (5th Cir. 2017) (per
curiam), and United States v. Vickers,
    540 F.3d 356
    , 363-66 (5th Cir. 2008), and
his second argument is foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    , 226-27 (1998).       Because the issues are foreclosed, summary
affirmance is appropriate. Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    ,
1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.
2