United States v. Christopher Hornyak, 588 F. App'x 384

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney‘s Office, Houston, TX, for Plaintiff-Appellee.

Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant.

Miguel Angel Franco-Quintana, Oklahoma City, OK, pro se.

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:^*

The attorney appointed to represent Miguel Angel Franco-Quintana has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Franco-Quintana has not filed a response. We have reviewed counsel‘s brief and the relevant portions of the record reflected therein. We concur with counsel‘s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel‘s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.

William Jack Browning, Austin, TX, for Defendant-Appellant.

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:^*

Christopher Michael Hornyak appeals from his conviction of possession of a firearm by a convicted felon. He contends that his conviction of evading arrest or detention using a motor vehicle under section 38.04 of the Texas Penal Code did not qualify as a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He further contends that the residual clause of the ACCA, which provides that an offense qualifies as a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii), is unconstitutionally vague and should be found void for vagueness. Hornyak concedes that his arguments are foreclosed, but he raises them to preserve them for further review, and he requests reexamination of United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), in which we held that a conviction under § 38.04 qualifies as a violent felony, in light of Sykes v. United States, — U.S. —, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). The Government moves for summary affirmance of Hornyak‘s conviction, as all of his contentions are foreclosed.

In Harrimon, we held that a § 38.04(b)(1) offense is a violent felony under the ACCA because “fleeing by vehicle poses a serious risk of injury to others.” Harrimon, 568 F.3d at 532-33, 536 (considering substantively identical version of § 38.04 to that at issue in this case). We have held in several unpublished opinions that Sykes validated our decision in Harrimon. See United States v. Spann, 562 Fed.Appx. 237, 238 (5th Cir.), cert. denied, — U.S. —, 135 S.Ct. 220, 190 L.Ed.2d 168 (2014); United States v. Hoover, 548 Fed.Appx. 300, 301 (5th Cir. 2013), cert. denied, — U.S. —, 134 S.Ct. 1804, 188 L.Ed.2d 769 (2014); United States v. Standberry, 546 Fed.Appx. 381, 381, 382 (5th Cir. 2013); United States v. McCullough, 475 Fed.Appx. 983, 983 (5th Cir. 2012); United States v. Williams, 466 Fed.Appx. 390, 391 (5th Cir. 2012); United States v. Tubbs, 446 Fed.Appx. 705, 706 (5th Cir. 2011). We also have rejected the arguments that the Texas statute for evading arrest with a vehicle is not a violent felony because it can be committed by fleeing in any vehicle, not just a motor vehicle, and that Sykes overruled Harrimon because it emphasized the use of a motor vehicle. See Spann, 562 Fed.Appx. at 238; Standberry, 546 Fed.Appx. at 382. Moreover, we have rejected the argument that the Texas offense of evading arrest might not constitute a violent felony because Texas law imposes different penalties based on the degree of risk posed by a defendant‘s conduct. See United States v. Holston, 471 Fed.Appx. 308, 309 (5th Cir. 2012); United States v. Whitfield, 451 Fed.Appx. 415, 416 (5th Cir. 2011). Finally, the Supreme Court has rejected the argument that the residual clause of the ACCA is unconstitutionally vague. United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011) (citing James v. United States, 550 U.S. 192, 210 n. 6, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)).

“It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a prior panel‘s decision.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Hornyak‘s contentions thus are foreclosed.

AFFIRMED. Motion for summary affirmance GRANTED. Motion for extension of time to file a brief DENIED.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.

Jack R. Stern, Law Office of Jack R. Stern, Del Rio, TX, for Defendant-Appellant.

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:^*

Angel Leonel Guzman-Matias appeals the sentence imposed following his conviction for illegal reentry into the United States. He contends that the district court erred in applying the crime-of-violence (COV) enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his 2008 California conviction for infliction of corporal injury on a spouse or cohabitant. He first argues that the enhancement was erroneous because his presentence report (PSR) contained conflicting dates regarding when his California offense occurred and lacked information showing that he possessed the requisite mens rea for the offense. He also argues that his California offense does not categorically qualify as a COV because it could have been committed merely by minimal offensive touching.

In reviewing challenges to a COV enhancement that were preserved in the district court, we review the district court‘s factual findings for clear error and its interpretation and application of the Sentencing Guidelines de novo. United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014). “A factual finding is not clearly erroneous if it is plausible in light of the record as a whole.” United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Even assuming that Guzman-Matias‘s instant arguments were preserved, the arguments are unavailing.

The Government has filed an unopposed motion to supplement the record on appeal with a copy of the plea agreement from Guzman-Matias‘s California case. The motion to supplement the record is GRANTED. The plea agreement indicates that Guzman-Matias agreed to plead guilty to an amended third count for corporal injury to a spouse or cohabitant, an offense under CAL. PENAL CODE § 273.5(a). We conclude that the district court‘s finding that such conviction did in fact occur is not clearly erroneous. To the extent Guz-

Notes

*

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. 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. 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.

Case Details

Case Name: United States v. Christopher Hornyak

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 29, 2014

Citations: 588 F. App'x 384; 14-50299

Docket Number: 14-50299

Court Abbreviation: 5th Cir.