United States v. Parker

Case: 20-11182 Document: 00516142153 Page: 1 Date Filed: 12/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 22, 2021
No. 20-11182
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Donnell Parker,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-192-1
Before Owen, Chief Judge, and Southwick and Wilson, Circuit
Judges.
Per Curiam:*
Donnell Parker appeals his conviction and sentence for possessing a
firearm after a felony conviction in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). As an initial matter, Parker contends that § 922(g)(1) is facially
unconstitutional and that the district court erred by categorizing his prior
*
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opinion should not be published and is not precedent except under the limited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: 20-11182 Document: 00516142153 Page: 2 Date Filed: 12/22/2021
No. 20-11182
Texas robbery conviction as a “crime of violence” under U.S.S.G. § 4B1.2
for purposes of determining his base offense level under U.S.S.G. § 2K2.1(a).
As he admits, these claims are foreclosed by this court’s precedent, and he
raises the claims to preserve them for further review. See United States v.
Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013) (holding that § 922(g)(1) does
not violate the Commerce Clause); United States v. Santiesteban-Hernandez,
469 F.3d 376, 378-82 (5th Cir. 2006) (concluding that Texas robbery qualifies
as generic robbery and is a crime of violence under U.S.S.G. § 2L1.2),
overruled on other grounds by United States v. Rodriguez, 711 F.3d 541, 552-57
(5th Cir. 2013) (en banc).
In addition, Parker argues that his above-guidelines sentence of 65
months’ imprisonment was substantively unreasonable because the
guidelines range already took into account his criminal history and because
the district court failed to consider his mitigating arguments fully. However,
he does not show that the district court failed to account for a sentencing
factor that should have received significant weight, gave significant weight to
an irrelevant or improper factor, or made a clear error in judgment when
balancing the sentencing factors. See United States v. Smith, 440 F.3d 704,
708 (5th Cir. 2006). Accordingly, he fails to show that the district court’s
above-guidelines sentence was an abuse of discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2