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United States v. Womack ( 2022 )


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  • Case: 21-10942      Document: 00516274900         Page: 1    Date Filed: 04/11/2022
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
April 11, 2022
No. 21-10942
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Shamar Cortez Womack,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-50-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Shamar Cortez Womack was sentenced to 210 months of
imprisonment after pleading guilty to being a felon in possession of a firearm,
in violation of
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2). On appeal, he contends
that his Arkansas drug offense does not qualify as a serious drug felony under
the Armed Career Criminal Act. The Government has filed a motion for
*
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opinion should not be published and is not precedent except under the limited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: 21-10942      Document: 00516274900           Page: 2    Date Filed: 04/11/2022
No. 21-10942
summary affirmance or, in the alternative, for an extension of time to file a
merits brief. It asserts that Womack’s argument is foreclosed by circuit
precedent.
For a state statute to be broader than its federal counterpart, there
must be “a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition of
a crime.” Moncrieffe v. Holder,
    569 U.S. 184
    , 191 (2013) (quoting Gonzales v.
Duenas-Alvarez,
    549 U.S. 183
    , 193 (2007)). As acknowledged by Womack, he
cannot make such a showing because he is unable to point to an actual case in
which Arkansas courts applied the relevant offense in a nongeneric manner.
See United States v. Castillo-Rivera,
    853 F.3d 218
    , 222 (5th Cir. 2017) (en
banc). Although he claims that this court’s application of the realistic
probability test is wrong and unfair, “in the absence of an intervening
contrary or superseding decision by this court sitting en banc or by the United
States Supreme Court,” we are bound by our precedent. United States v.
Montgomery,
    974 F.3d 587
    , 590 n.4 (5th Cir. 2020) (quoting United States v.
Setser,
    607 F.3d 128
    , 131 (5th Cir. 2010)), cert. denied,
    141 S. Ct. 2823
     (2021).
In light of the foregoing, the Government’s motion for summary
affirmance is DENIED, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    ,
1162 (5th Cir. 1969), the alternative motion for an extension of time in which
to file a brief is DENIED as moot, and the judgment of the district court is
AFFIRMED.
2