U.S. v. Davis

• Decision Date: 17 May 2007
• Docket Number: No. 05-40758.,05-40758.
• Citation: 487 F.3d 282
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andre DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.3d 282

UNITED STATES of America, Plaintiff-Appellee, v. Andre DAVIS, Defendant-Appellant.

No. 05-40758.

United States Court of Appeals, Fifth Circuit.

May 17, 2007.

[487 F.3d 283]

Reynaldo Padillo Morin, John Malcolm Bales, Asst. U.S. Atty., Lufkin, TX, for U.S.

John Wesley Tunnell, Tunnell & Cox, Lufkin, TX, for Davis.

Appeal from the United States District Court for the Eastern District of Texas.

Before KING, DAVIS and BARKSDALE, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Andre Davis appeals his enhanced sentence, arguing that (1) his prior convictions for robbery under Texas Penal Code § 29.02 do not qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and (2) the district court violated the Sixth Amendment by determining certain sentencing facts. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-appellant Andre Davis pleaded guilty to one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). This possession conviction arose out of robberies committed on October 3 and October 4, 2004. The district court sentenced Davis under the 2004 version of the United States Sentencing Guidelines (the "Sentencing Guidelines") on May 6, 2005. The district court adopted the recommendations from the presentence investigation report ("PSR").

The district court classified Davis's three prior robbery convictions under Texas Penal Code § 29.02 as violent felonies and subjected him to an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1).¹ Because the instant firearm possession offense was in connection with a robbery, Davis's offense level was thirty-four. U.S. SENTENCING GUIDELINES MANUAL § 4B1.4(b)(3)(A). After factoring in a three-level reduction for acceptance of responsibility, his total offense level was thirty-one. In contrast, if Davis's sentence had not been enhanced under the ACCA, his total offense level would have been twenty-five.

Davis's offense level of thirty-one, combined with his criminal history category of VI, resulted in a guideline imprisonment range of 188 to 235 months. The district court sentenced Davis to 188 months of imprisonment (slightly more than the fifteen year minimum required by the ACCA) and three years of supervised release and imposed a $100 special assessment. Davis filed a timely notice of appeal.

II. VIOLENT FELONY ENHANCEMENT

Davis first argues that the district court erred in enhancing his sentence because his prior robbery convictions do not constitute violent felonies under the ACCA. Because Davis raised no objection to the enhancement in the district court, we review for plain error. See United States v. Ochoa-Cruz, 442 F.3d 865, 866 (5th Cir.2006). Under this standard, "we may reverse only if `(1) there was error, (2) the error was clear and obvious, and (3) the error affected [the defendant's] substantial rights.'" See United States v. Garcia Abrego, 141 F.3d 142, 165 (5th Cir.1998) (quoting United States v. Dupre, 117 F.3d 810, 817 (5th Cir.1997)); FED. R.CRIM.P. 52(b). Even if these criteria are satisfied, reversal is discretionary; generally, we will reverse only if we conclude that "the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quotation marks and brackets omitted) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)); Garcia Abrego, 141 F.3d at 166. The plain or obvious nature of the error is determined by the law as it exists at the time of appellate review, rather than at the time of the district court's ruling. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

Under the first step of plain-error review, we consider whether the court erred by enhancing Davis's sentence under the ACCA. Accordingly, we must determine whether a robbery under § 29.02(a) qualifies as a violent felony under the ACCA. The ACCA defines a violent felony as any crime punishable by a term of imprisonment 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.

§ 924(e)(2)(B). Clause (i), is known as the force clause. The portion of clause (ii) following the enumerated offenses is known as the residual clause.²

Davis's three prior robbery convictions were all under the following Texas robbery statute:

(a) A person who commits an offense if, in the course of committing theft as defined in Chapter 31 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.

TEX. PEN.CODE ANN. § 29.02.

When classifying a prior offense for enhancement purposes, we employ a categorical approach and look to the statutory definition of the prior offense rather than the defendant's underlying conduct. Shepard v. United States, 544 U.S. 13, 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). When determining whether a prior conviction satisfies the residual clause, we consider "whether the elements of the offense are of the type that would justify its inclusion within [that] provision without inquiring into the specific conduct of this particular offender." James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 1594, 167 L.Ed.2d 532 (2007). Because we cannot look to the particular facts of this case, Davis's contention that his particular convictions do not qualify as violent felonies because he committed unarmed robberies fails. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143.

The test articulated by James for determining whether an offense falls within the residual clause is "whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another." 127 S.Ct. at 1597.³ The way in which the Court applied this test is instructive. The Court examined whether a conviction under a Florida attempted burglary statute which required "overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, [was] `conduct that presents a serious potential risk of physical injury to another.'" Id. at 1594. The Supreme Court observed that "[t]he specific offenses enumerated in clause (ii) provide one baseline from which to measure" whether other offenses fit within the residual clause. Id. It compared the risk posed by attempted burglary to that of completed burglary, "its closest analog among the enumerated offenses." Id. The Court recognized that the main risk of burglary arises "from the possibility of a face-to-face confrontation between the burglar and a third party . . . who [came] to investigate" and held that attempted burglary under the Florida statute, which required overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, posed a similar risk. Id. "Interrupting an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of violent confrontation comparable to that posed by finding him inside the structure itself." Id.

The enumerated offenses in clause (ii) of § 924(e)(2)(B), however, merely provide a starting point in the inquiry of whether there is a serious risk for physical injury. "Nothing in the language of § 924(e)(2)(B)(ii) rules out the possibility that an offense may present `a serious risk of physical injury to another' without presenting as great a risk as any of the enumerated offenses." Id. at 1598.

As instructed by the Supreme Court, we look to the elements of the Texas robbery statute and ask whether the conduct encompassed by those elements, in the ordinary case, presents a serious potential risk of injury to another. The elements of robbery are: (1) a person, (2) in the course of committing theft, (3) with the intent to obtain or maintain control of property, (4) intentionally, knowingly, or recklessly causes bodily injury to another, or (5) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX. PEN.CODE ANN. § 29.02; Nelson v. State, 848 S.W.2d 126, 131 (Tex.Crim.App.1992); Castillo v. State, 865 S.W.2d 89, 92 (Tex.App.-Corpus Christi 1993, no pet.). The defining feature of robbery under the Texas statute is the actual or threatened assaultive conduct. See Purser v. State, 902 S.W.2d 641, 647 (Tex.App.-El Paso 1995, pet. ref'd) (stating "[t]he gravamen of robbery is the assaultive conduct, and not the theft."). The theft need not even be completed because the "in the course of committing theft" element allows conduct "which occurs in an attempt to commit, during commission, or in immediate flight after the attempt or commission of theft" to constitute robbery. Id. Robbery may also be completed without a weapon. Id. Texas courts have held that the statement "I've got a gun"—even if false—satisfies the requirement to threaten or place in fear of imminent bodily injury or death. Robinson v. State, 817 S.W.2d 822, 824 (Tex. App.-Fort Worth 1991, pet. ref'd).

To commit robbery, an individual must interact with the victim in order to cause bodily injury or place the victim in fear of it. See TEX. PEN.CODE ANN. § 29.02.⁴ Such interaction to take another's property creates a serious potential risk of a violent confrontation between the robber and the victim. This in turn, in the ordinary case, presents a serious potential risk of physical injury to another.⁵

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