USA v. Noah Lester, No. 17-10205 (5th Cir. 2017)
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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, 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 Lyle W. Cayce Clerk 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. * 2 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. 3
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