U.S. v. Burris

• Decision Date: 10 April 2019
• Docket Number: No. 17-10478,17-10478
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Latroy Leon BURRIS, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

920 F.3d 942

UNITED STATES of America, Plaintiff - Appellee

v.Latroy Leon BURRIS, Defendant - Appellant

No. 17-10478

United States Court of Appeals, Fifth Circuit.

FILED April 10, 2019

Gail A. Hayworth, 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, Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant.

Before WIENER, GRAVES, and HO, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Latroy Leon Burris pleaded guilty to being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA), which provides for an increased sentence if the defendant has been convicted of three prior violent felonies. Burris contends that he was not eligible for the increase because his prior Texas conviction for robbery was not a violent felony.

By a divided vote, we previously held that Texas robbery does not have as an element the "use, attempted use, or threatened use of physical force."¹ The government moved for rehearing en banc, and we withdrew our opinion pending the en banc court’s decision in United States v. Reyes-Contreras .² After the en banc court decided Reyes-Contreras , the Supreme Court decided Stokeling v. United States , which held that Florida robbery qualified as a crime of violence under the ACCA.³ The parties filed supplemental briefs addressing Reyes-Contreras and Stokeling .

Those cases apply to Burris’s sentence and govern the outcome of this case. We hold that robbery under Texas Penal Code § 29.02(a) requires the "use, attempted use, or threatened use of physical force" and affirm Burris’s increased sentence under the ACCA.

I. FACTS AND PROCEEDINGS

In July 2016, Burris pleaded guilty to (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and (2) possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1) & (b)(1)(C).⁴ The presentence investigation report (PSR) determined that Burris was an armed career criminal under 18 U.S.C. § 924(e), viz. , the ACCA. A defendant is an armed career criminal if he (1) is convicted of violating § 922(g), as Burris was by virtue of his guilty plea, and (2) has three prior convictions for violent felonies or serious drug offenses.⁵ If a defendant meets these criteria, he is subject to a minimum sentence of fifteen years imprisonment.⁶

The PSR states that Burris had three prior convictions qualifying him for the ACCA: (1) a 1993 Texas conviction for robbery, (2) a 1993 Texas conviction for aggravated robbery, and (3) a 2012 Texas conviction for manufacturing/delivering a controlled substance. When he pleaded guilty, Burris disputed that he qualified for the enhanced penalties of the ACCA. After the probation office issued the PSR, Burris objected, insisting that his convictions for robbery and aggravated robbery do not qualify for the ACCA.⁷ The district court adopted the findings of the PSR, concluding that Burris’s prior convictions for robbery and aggravated robbery qualified him for the ACCA’s enhancement. The court then sentenced him to 188 months in custody, a sentence at the low end of the applicable guidelines range.

Burris timely appealed, challenging the district court’s ruling that his Texas convictions for robbery and aggravated robbery were "violent felonies." After Burris filed his opening brief, another panel of this court held that the version of aggravated robbery for which Burris was convicted is a violent felony under the ACCA.⁸ Burris conceded that his aggravated robbery conviction qualified as a violent felony,⁹ so this appeal concerns only whether Burris’s conviction for simple robbery also qualifies as a violent felony.

The panel majority previously held that Burris’s conviction for simple robbery was not a violent felony under the ACCA.¹⁰ The government moved for rehearing en banc, and we withdrew our opinion pending the en banc court’s decision in Reyes-Contreras .¹¹ After that, the Supreme Court decided Stokeling v. United States , which considered a similar issue to the one presented here. The parties filed supplemental briefing addressing those cases.

II. STANDARD OF REVIEW

The government acknowledges that Burris preserved his objection in the district court. We therefore review de novo the district court’s conclusion that his simple robbery conviction was a violent felony under the ACCA.¹²

III. ANALYSIS

A. The Relevant Statutes

The ACCA defines a "violent felony," in relevant part, as:

[A]ny crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]¹³

Before the Supreme Court’s decision in Samuel Johnson v. United States ,¹⁴ Texas robbery was considered a violent felony under the second part of clause (ii), known as the "residual clause," because it "involve[d] conduct that presents a serious potential risk of physical injury to another."¹⁵ In Samuel Johnson , however, the Court struck down the residual clause as unconstitutionally vague.¹⁶ Consequently, robbery is a violent felony under the ACCA if it has as an element the use, attempted use, or threatened use of "physical force."

B. Divisibility

Texas robbery is defined in § 29.02(a) of the Texas Penal Code as follows:

A person commits an offense if, in the course of committing theft ... and with intent to obtain or maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.¹⁷

We refer to the alternatives delineated by subparts (1) and (2) as "robbery-by-injury" and "robbery-by-threat." This court has never addressed whether § 29.02(a) is divisible or indivisible¹⁸ —that is, whether robbery-by-injury and robbery-by-threat are (a) different crimes or (b) a single crime that can be committed by two different means.¹⁹

If § 29.02(a) is indivisible, we "focus solely on whether the elements of the crime of conviction" include the use of force.²⁰ This focus on the elements of the offense of conviction is known as the "categorical approach."²¹ Under that approach, if the least culpable conduct covered by either robbery-by-injury or robbery-by-threat requires the use, attempted use, or threatened use of physical force, Texas robbery is a violent felony.²²

To determine what a state statute covers, "federal courts look to, and are constrained by, state courts’ interpretations of state law."²³ "[T]he focus on the minimum contact criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a theoretical possibility, that the state would apply its statute to conduct that falls outside [the use-of-force clause.]’ "²⁴ "Without supporting state case law, interpreting a state statute’s text alone is simply not enough to establish the necessary ‘realistic probability.’ "²⁵

On the other hand, if § 29.02(a) is divisible, we use the " ‘modified categorical approach,’ and look to a ‘limited class of documents,’ such as the indictment, jury instructions, and plea agreements and colloquies to determine the crime of conviction."²⁶ "Those sources may be used not to locate facts supporting a [crime-of-violence] enhancement, but only ‘as a tool to identify the elements of the crime of conviction.’ "²⁷ Under that approach, we first determine the specific subsection under which Burris was convicted and then consider whether that offense "has as an element the use ... of ... force."²⁸

Burris’s conviction documents do not specify whether he was convicted of robbery-by-injury or robbery-by-threat. His indictment states that he caused injury, but it charges him with aggravated robbery. We cannot look to the indictment to narrow the subsection of conviction if it indicts Burris for a crime other than the one to which he pleaded guilty.²⁹

Reyes-Contreras confirmed, however, that we may "make reasonable use of the indictment, together with the judgment, to identify the crime of conviction."³⁰ The judgment and indictment state that Burris caused "serious bodily injury." Based on those documents, it appears that Burris pleaded guilty to robbery-by-injury under § 29.02(a)(1) rather than robbery-by-threat under 29.02(a)(2).

We need not decide whether § 29.02(a) is divisible here, however, because our conclusion under either approach would be the same. As we explain in greater detail below, we hold that § 29.02(a)(1), robbery-by-injury, categorically requires the use of physical force. Section 29.02(a)(2), robbery-by-threat, requires "threaten[ing] or plac[ing] another in fear of" imminent bodily injury or death. Causing bodily injury requires the use of physical force, so threatening or placing another in fear of imminent bodily injury likewise requires the "attempted use, or threatened use of physical force."³¹

C. Robbery-by-Injury

We first address robbery-by-injury. Section 29.02(a)(1) requires that a defendant "cause[ ] bodily injury." Texas defines "bodily injury" as "physical pain, illness, or any impairment of physical condition."³² We must determine whether "caus[ing] bodily injury" under Texas law requires the use of physical force under federal law. This involves two issues: (1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA’s elements clause. The en banc court resolved the first issue in Reyes-Contrera...