United States v. Noah Lester , 707 F. App'x 241 ( 2017 )

Case: 16-11705 Document: 00514280504 Page: 1 Date Filed: 12/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11705
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 20, 2017
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
BURL BAILEY BLAYLOCK, IV,
Defendant-Appellant
CONSOLIDATED WITH No. 17-10205
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NOAH BRADLEY LESTER,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-323-1
USDC No. 3:15-CR-196-1
Case: 16-11705 Document: 00514280504 Page: 2 Date Filed: 12/20/2017
No. 16-11705
c/w No. 17-10205
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Burl Bailey Blaylock, IV, appeals his sentence of 60 months of
imprisonment and two years of supervised release imposed in connection with
his conviction for possession of a firearm by a felon. Blaylock’s guidelines range
was calculated based on an offense level set by U.S.S.G. § 2K2.1 because he
had prior convictions for crimes of violence. Section 2K2.1 uses the definition
of crime of violence set forth in U.S.S.G. § 4B1.2. § 2K2.1, comment. (n.1).
Noah Bradley Lester appeals his concurrent sentences of 240 months
and 262 months, followed by three years of supervised release, imposed in
connection with his conviction for two counts of bank robbery. Lester was
sentenced as a career offender under the provisions of § 4B1.1 and § 4B1.2.
Both Blaylock and Lester argue that their prior convictions for the Texas
offense of robbery do not qualify as a crime of violence under the definition in
§ 4B1.2. Blaylock argues that his prior conviction for the Texas offense of
assault family violence impeding breath/circulation does not qualify as a crime
of violence because it does not have as an element the use of force. Lester
argues that his prior conviction for the offense of federal bank robbery does not
qualify as a crime of violence because it does not have as an element the use of
force.
The Government has filed an unopposed motion for summary
affirmance, asserting that the arguments are foreclosed. Blaylock and Lester
correctly concede that their arguments are foreclosed by United States v.
Santiesteban-Hernandez, 469 F.3d 376, 380-81 (5th Cir. 2006), overruled on
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.
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Case: 16-11705 Document: 00514280504 Page: 3 Date Filed: 12/20/2017
No. 16-11705
c/w No. 17-10205
other grounds by United States v. Rodriguez, 711 F.3d 541, 547-63 (5th Cir.
2013) (en banc), United States v. Brewer, 848 F.3d 711, 716 (5th Cir. 2017), and
United States v. Howell, 838 F.3d 489, 492 (5th Cir. 2016), cert. denied,
137 S. Ct. 1108 (2017). They raise the issues only to preserve them for further
review; thus, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED. The judgments are AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.
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