United States v. Palmer

United States Court of Appeals
for the Fifth Circuit

No. 19-11246
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Anthony Dean Palmer,

Defendant—Appellant.

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-261-1

Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Anthony Dean Palmer was convicted of possession of a firearm by a
convicted felon and possession with intent to distribute a controlled
substance. He was sentenced to concurrent terms of 180 months of
imprisonment on the firearm count and 120 months of imprisonment on the

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
September 2, 2020

Lyle W. Cayce
Clerk
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No. 19-11246
2
drug count. Palmer asserts that his Texas conviction for burglary of a
building, Texas conviction for burglary of a habitation, Texas conviction for
robbery by threats, Texas convictions for aggravated assault with a deadly
weapon, and Oklahoma conviction for assault with a dangerous weapon do
not qualify as violent felonies under the Armed Career Criminal Act
(ACCA). The Government has moved for summary affirmance or,
alternatively, an extension of time to file a brief.
As Palmer acknowledges, all his Texas convictions currently qualify
as violent felonies under this court’s case law. See United States v. Herrold,
941 F.3d 173, 182 (5th Cir. 2019) (en banc) (holding that Texas burglary is a
violent felony), petition for cert. filed (U.S. Feb. 18, 2020) (No. 19-7731);
United States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019) (holding that Texas
robbery is a violent felony), petition for cert. filed (U.S. Oct. 3, 2019) (No. 19-
6186); United States v. Torres, 923 F.3d 420, 426 (5th Cir. 2019) (holding that
Texas aggravated assault with a deadly weapon is a crime of violence under
the elements clause of 18 U.S.C. § 16(a)); see also United States v. Griffin, 946
F.3d 759, 762 n.2 (5th Cir. 2020) (noting that § 16(a) and the elements clause
of the ACCA, which are almost identical, should be construed congruently),
petition for cert. filed (U.S. June 4, 2020) (No. 19-8646). Because Palmer has
at least three convictions that qualify as violent felonies, we need not consider
whether his Oklahoma conviction also qualifies as a violent felony. See 18
U.S.C. § 924(e)(1).
The record reveals clerical errors in the judgment. The written
judgment provides that the statute of conviction is 18 U.S.C. § 922(a)(1) and
the penalty provision is 18 U.S.C. § 924(a)(2) for the firearm count.
However, Palmer was convicted under § 922(g)(1) and sentenced under
§ 924(e)(1). Thus, the judgment should be corrected to properly identify the
statute of conviction and penalty provision for the firearm count. See United
States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003).
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No. 19-11246
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Summary affirmance is not appropriate, and the Government’s
motion is DENIED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). The Government’s alternative motion for an extension
of time to file a brief is DENIED as unnecessary. The judgment of the
district court is AFFIRMED. This matter is REMANDED for correction
of the clerical errors in the judgment pursuant to Federal Rule of Criminal
Procedure 36.
Case: 19-11246 Document: 00515550939 Page: 3 Date Filed: 09/02/2020