United States v. Moore

Case: 21-11240 Document: 00516476215 Page: 1 Date Filed: 09/19/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 19, 2022 No. 21-11240 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Derrick Tyrone Moore, Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-183-1

Before Davis, Smith, and Dennis, Circuit Judges.

Per Curiam:* Derrick Tyrone Moore pleaded guilty to possessing a firearm as a convicted felon and was sentenced to 180 months in prison pursuant to the Armed Career Criminal Act (ACCA). He timely appealed and challenges his ACCA-enhanced sentence on two grounds. The Government has filed an Case: 21-11240 Document: 00516476215 Page: 2 Date Filed: 09/19/2022

No. 21-11240 unopposed motion for summary affirmance or, in the alternative, for an extension of time to file a merits brief, asserting that Moore’s arguments are foreclosed by circuit precedent.

On appeal, Moore renews his argument that the district court erred by treating his prior Texas Penal Code § 30.02 convictions for burglary of a habitation as violent felonies for purposes of the ACCA. In United States v. Herrold, 941 F.3d 173, 182 (5th Cir. 2019) (en banc), this court held that Texas burglary is generic burglary and is a violent felony under the ACCA.

Moore concedes as much, but he raises the issue here to preserve it for further review.

Moore also contends that the district court erred under the Sixth Amendment by relying on Shepard-approved 1 documents to determine that each of his prior burglary convictions occurred on separate occasions for ACCA purposes. The Government correctly argues without opposition that this argument is foreclosed by our precedent. See United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).

In light of the foregoing, the Government’s unopposed motion for summary affirmance is GRANTED, 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, and the judgment of the district court is AFFIRMED.