United States v. Spann ( 2021 )

Case: 18-11324 Document: 00516107741 Page: 1 Date Filed: 11/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 24, 2021
No. 18-11324
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Lucian Lee Spann,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CR-126-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Lucian Lee Spann pleaded guilty to one count of being a felon in
possession of a firearm and was sentenced pursuant to the Armed Career
Criminal Act (ACCA) to 204 months of imprisonment, with credit for 20
months of time served, and two years of supervised release. Following the
*
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opinion should not be published and is not precedent except under the limited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: 18-11324 Document: 00516107741 Page: 2 Date Filed: 11/24/2021
No. 18-11324
Supreme Court’s decision in Johnson v. United States, 576 U.S. 591, 606
(2015), Spann filed a 28 U.S.C. § 2255 motion to vacate his conviction,
arguing that his Texas robbery, evading arrest, and aggravated assault
convictions no longer qualified as violent felonies. The district court granted
the motion, finding that Texas robbery no longer constituted a violent felony,
and resentenced Spann to 63 months of imprisonment, with credit for 20
months of time served, and three years of supervised release. The
Government filed this appeal.
The Government argues that Texas robbery is a violent felony under
the ACCA because it has the use, attempted use, or threatened use of
physical force as an element. Following the issuance of Borden v. United
States, 141 S. Ct. 1817 (2021), Spann filed an unopposed motion for summary
affirmance, arguing that Borden foreclosed the Government’s argument. In
the alternative, Spann requests an extension of time to file his brief.
Borden held that offenses with a mens rea of recklessness are not
encompassed within the elements clause of the “violent felony” definition in
the ACCA. 141 S. Ct. at 1825, 1834. Spann was convicted of violating Texas
Penal Code § 29.02(a)(1), which defines robbery as a theft committed with
intent to control or maintain the property where the offender “intentionally,
knowingly, or recklessly cause[d] bodily injury to another.” Therefore, as
Spann argues, Borden forecloses the Government’s argument that Spann’s
Texas robbery conviction is a violent felony pursuant to the ACCA. See
Borden, 141 S. Ct. at 1825; see also United States v. Ybarra, ___ F. App’x ___,
No. 20-10520, 2021 WL 3276471, at *1-2 (5th Cir. July 30, 2021)
(unpublished).
Because Spann’s position “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), his
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No. 18-11324
motion for summary affirmance is GRANTED, his alternative motion for
an extension of time to file a brief is DENIED, and the judgment of the
district court is AFFIRMED.
3