United States v. Herrold

• Citation: 883 F.3d 517
• Decision Date: 20 February 2018
• Docket Number: No. 14-11317,14-11317
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Michael HERROLD, Defendant–Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

883 F.3d 517

UNITED STATES of America, Plaintiff–Appellee

v.Michael HERROLD, Defendant–Appellant

No. 14-11317

United States Court of Appeals, Fifth Circuit.

FILED February 20, 2018

Brian W. McKay, Esq., Assistant U.S. Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, Lauren Anita Woods, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.

Before STEWART, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.^*

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences.

But this discretion was not so wide in practice as in appearance—the judge’s sentence gave way when the prisoner left the court for prison. The total time served by the prisoner was on his arrival determined in the main by a parole commission. The commission determined release dates, and in a rough and crude way—relative to the work of the Sentencing Commission—anticipated the system now in place by using a scoring system that looked in part to a defendant’s criminal history. In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant’s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other. With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility. Yet its relatively calibrated system of adjustments struggles with rifle-shot statutory efforts deploying an indeterminate calculus for identification of repetitive, sentence-enhancing conduct that add on to the sentence produced by the guidelines, such as the Armed Career Criminal Act. In setting a federal criminal sentence the district judge looks, in part, to both the number and type of a defendant’s prior convictions, a task complicated by the statute’s effort to draw on criminal conduct bearing differing labels and boundaries set by the various states. Today, we continue to refine our efforts.

In this case, we consider questions posed by the use of Texas’s burglary statute, Texas Penal Code § 30.02, to enhance a federal sentence. First, we confront whether two provisions of the statute, Texas Penal Code §§ 30.02(a)(1) and (3), are indivisible for the purposes of categorical analysis. Second, we consider whether either of these two provisions is broader than the federal generic definition of burglary encoded in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). We answer each of these questions in the affirmative, and VACATE the appellant’s sentence and REMAND for resentencing consistent with this decision.

On November 5, 2012, Dallas police officers stopped Michael Herrold for failing to signal a right turn. An officer approaching his car saw a handgun on the floor and arrested him. Herrold pled guilty to possession of a firearm by a former felon.¹ This latest conviction came on top of a series of past felonies, including three convictions for Texas offenses that his PSR listed as making him eligible for the sentence enhancement imposed by the Armed Career Criminal Act ("ACCA")² : (1) unlawful possession of LSD with intent to distribute; (2) burglary of a building; and (3) burglary of a habitation. Herrold argued that none of these offenses qualified as ACCA-predicate offenses, such that a sentence enhancement was therefore improper. The trial judge disagreed; he adopted the recommendation of the PSR and sentenced Herrold to 211 months in prison, including the ACCA enhancement. The judge observed, however, that Herrold had made "forceful arguments" that the enhancement should not apply, and he requested guidance from our court on the question. Without the enhancement, Herrold faces a statutory maximum of ten years³ —the enhancement added at least 91 months to his sentence and subjected him to a statutory minimum of fifteen years.⁴

We considered Herrold’s arguments on direct appeal and affirmed his sentence on the basis of circuit precedent.⁵ The Supreme Court vacated our judgment and remanded for renewed consideration in light of Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).⁶ On remand, Herrold argued that Mathis forecloses the possibility that his two Texas burglary convictions can serve as ACCA predicates.⁷ We affirmed his sentence once again, this time on the basis of an earlier post- Mathis decision, United States v. Uribe , 838 F.3d 667 (5th Cir. 2016).⁸ We now reconsider this argument en banc and, in doing so, revisit Uribe and its progeny as well.

I.

The ACCA enhances the sentences of defendants with at least three previous convictions for certain crimes. Not all convictions trigger the enhancement—the ACCA specifies that a previous conviction must be for a "violent felony" or a "serious drug offense" for it to count as an ACCA predicate.⁹ "Violent felony," the sole category under which Herrold’s burglary convictions could plausibly fall, is defined in part by reference to other crimes, and the ACCA tells us that "burglary, arson, [and] extortion" fit the bill.¹⁰

That said, "burglary" is confined to a federal definition of "generic burglary" unbound by a state’s decision to label criminal conduct by that term.¹¹ The fact that two of Herrold’s convictions arose under a provision of Texas’s burglary statute, Texas Penal Code § 30.02(a)(1), is therefore not dispositive. Labels aside, we must determine whether Texas’s burglary statute sweeps more broadly in its application than the generic form of burglary encoded in the ACCA. Only then may we decide whether Herrold’s convictions qualify as "violent felonies" that trigger an accompanying federal sentence enhancement.

II.

Texas’s burglary statute, Texas Penal Code § 30.02(a), reads:

A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.¹²

As is evident, Texas’s burglary statute is alternatively phrased, comprised of a list of several disjunctive subsections. Statutes taking this form pose a preliminary question—and its answer switches us to the appropriate analytical track. We must determine whether the statute sets forth alternative means of committing a single substantive crime, or separate elements, effectively defining distinct offenses.¹³ We refer to the former sort of statutes as "indivisible," and we call the latter "divisible."¹⁴ If a statute describes alternative means of committing one offense (i.e., if a statute is indivisible), we compare the whole thing to its federal generic counterpart and determine whether any part falls outside the federal template. In other words, we perform the classic categorical approach.¹⁵ If the alternative terms of a statute outline elements of distinct offenses (i.e., if a statute is divisible), we isolate the alternative under which the defendant was convicted and apply the federal template to only that alternative. This second analytical track has come to be known as the modified categorical approach.¹⁶

After the first time we upheld Herrold’s sentence, Mathis v. United States provided a more fine-grained trace between statutory means and elements.¹⁷ In doing so, it also offered a typology of the authorities that federal courts may look to in determining whether a statute is divisible or indivisible.

Our first task is to determine whether state law sources resolve the question.¹⁸ If state court decisions dictate that a jury need not unanimously agree on the applicable alternative of the statute, the statute is indivisible and its alternative terms specify different means of committing a single offense.¹⁹ And if state courts have decided a jury must unanimously agree on the alternative, the alternatives describe separate offenses comprised of distinct elements.²⁰ We may also look to the text of the statute. If the statute lists different punishments for each of its alternatives, they must be elements of distinct offenses.²¹ And the statute may also simply tell us "which things must be charged (and so are elements) and which need not be (and so are means)."²²

If one of these authorities resolves the question, our inquiry ends. If state law fails to answer the question, we may look at the record of the defendant’s prior convictions "for the sole and limited purpose of determining whether [the listed items are] element[s] of the offense."²³ The record is relevant because if all statutory alternatives are charged in a single count of an indictment or lumped together in a jury instruction, this is evidence "that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt."²⁴ And if an indictment or jury instruction contains only one of the statute’s alternatives, this is evidence that the statute lists elements and is therefore divisible.²⁵

Should our dual forays into state law and the record leave...