U.S. v. Gore

• Citation: 636 F.3d 728
• Decision Date: 25 March 2011
• Docket Number: No. 09–41064.,09–41064.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Thomas GORE, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

636 F.3d 728

UNITED STATES of America, Plaintiff–Appellee,
v.
Thomas GORE, Defendant–Appellant.

No. 09–41064.

United States Court of Appeals, Fifth Circuit.

March 25, 2011.

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Traci Lynne Kenner, Asst. U.S. Atty. (argued), Tyler, TX, Lisa Grisset Flournoy, Asst. U.S. Atty., Lufkin, TX, for U.S.Albert John Charanza, Jr. (argued) (Court–Appointed), Charanza Law Office, P.C., Lufkin, TX, for Gore.Appeal from the United States District Court for the Eastern District of Texas.Before HIGGINBOTHAM, CLEMENT and OWEN, Circuit Judges.OWEN, Circuit Judge:

In this direct appeal Thomas Gore contends that his prior Texas conviction for conspiracy to commit aggravated robbery is not a violent felony within the meaning of the Armed Career Criminal Act (ACCA)¹ and that the district court erred in sentencing him as a career offender. We affirm.

I

Gore pled guilty to possessing a firearm after being convicted of a felony, in

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violation of 18 U.S.C. § 922(g). The presentence report recommended that the district court sentence Gore as a career offender pursuant to the ACCA based on Gore's three prior state convictions, two for serious drug offenses and the other for conspiracy to commit aggravated robbery. Gore objected to the presentence report, arguing that conspiracy to commit aggravated robbery is not a violent felony under the ACCA and that he therefore should be sentenced within a Guidelines range of 33–41 months of imprisonment. The district court overruled the objection and sentenced Gore to 180 months of imprisonment. This appeal followed.

II

We review de novo the district court's interpretation and application of a statute.² The ACCA provides that a defendant convicted for possession of a firearm is subject to a mandatory sentence of fifteen years' imprisonment if he has three prior convictions “for a violent felony or a serious drug offense, or both.”³ The ACCA defines “violent felony” to include “any 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.⁴

It is undisputed that conspiracy to commit aggravated robbery is a crime that is punishable by imprisonment for a term exceeding one year.⁵A

Gore contends, and we agree, that under Texas law, a conviction for conspiracy to commit aggravated robbery does not have “as an element the use, attempted use, or threatened use of physical force against the person of another.” ⁶ Three Texas statutes must be considered to obtain the elements of the offense of conspiracy to commit aggravated robbery. The first is the conspiracy statute, Texas Penal Code § 15.02, which provides that

A person commits criminal conspiracy if, with intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the agreement.⁷

When a conspiracy offense is at issue, our analysis includes “an examination of the elements of the target offense of the conspiracy conviction.”⁸ Accordingly,

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we must consider the elements of the aggravated robbery statute and the statute upon which it expressly builds, the robbery statute. The Texas robbery statute, Texas Penal Code § 29.02, provides that

A person 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.⁹

The Texas aggravated robbery statute, Texas Penal Code § 29.03, provides that

A person commits an offense when he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.¹⁰

A factfinder could convict a defendant of conspiracy to commit aggravated robbery by concluding that there was an agreement to (1) commit robbery and (2) engage in one or more of the acts enumerated in the aggravated robbery statute, without finding that physical force against the person of another was actually used or that there was an attempted or threatened use of such force.¹¹ Accordingly, conspiracy to commit aggravated robbery does not come within the definition of “violent felony” in subsection (i) of 18 U.S.C. § 924(e)(2)(B).¹²

We respectfully disagree with the Third Circuit's reasoning in this regard. That court held that a conspiracy to commit robbery came within the “force” clause because Pennsylvania law, under which the prior conviction was obtained, “requires that the crime that was the object of the conspiracy be defined for the jury” and therefore that “the elements of criminal conspiracy to commit robbery ... subsume the elements of robbery.”¹³ In our view, this conclusion was incorrect. “[A]n element of a crime is a fact that must be proven beyond a reasonable doubt to obtain conviction.”¹⁴ The state of Pennsylvania could obtain a conviction of conspiracy without proving beyond a reasonable doubt that the defendant committed the crime that was the conspiracy's object.

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B

The primary question presented by this appeal is whether a conviction under Texas law for conspiracy to commit aggravated robbery is within what many courts have called the “residual clause”¹⁵ of the definition of “violent felony,” which is the phrase “or otherwise involves conduct that presents a serious potential risk of physical injury to another” that follows the enumerated offenses (burglary, arson, extortion, or an offense that involves use of explosives). Gore's first contention is that applying the familiar “categorical”¹⁶ or “modified categorical” approach,¹⁷ rather than considering the actual conduct underlying his prior conviction, compels the conclusion that the statutes defining conspiracy to commit aggravated robbery are over inclusive in that they include conduct that would constitute a “violent felony” and conduct that would not. Gore contends that his prior conviction did not require him to commit an overt act, threaten an individual, or possess a firearm in the commission of the offense.

The only document pertaining to Gore's prior conviction in our record is the indictment. Gore correctly observes that we cannot deduce from the indictment whether his conviction was for a conspiracy to commit conduct described in subsection (a)(3) of the Texas aggravated robbery statute or another subsection of that statute.¹⁸ Gore, Sara Gore, and Ronald Robinette were charged with “intentionally and knowingly with intent that the felony offense of aggravated robbery be committed, agree[ing] among themselves and with one another that [Robinette] would engage in conduct that would constitute the offense of aggravated robbery.” The indictment further alleged that Robinette, not Gore, “performed an overt act in pursuance of that agreement,” which included “intentionally and knowingly” placing a woman “in fear of imminent bodily injury and death by using and displaying a deadly weapon, namely a firearm,” while committing

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theft of money from her. The indictment does not charge that the conspiracy specifically contemplated that Robinette would use or exhibit a firearm to place the intended victim in fear of bodily injury or death.

Gore asserts that the least culpable¹⁹ means of committing a conspiracy to commit aggravated robbery under Texas law is an agreement to commit robbery and threaten or place a person in fear of imminent bodily injury or death if that person is 65 years of age or older or is disabled.²⁰ Gore does not contend that Texas law can plausibly be construed to permit a conviction based on an agreement to recklessly²¹ cause bodily injury to a person who is disabled or is 65 years or older while committing robbery. ²² Such a construction could arguably be the least culpable means of committing a conspiracy to commit aggravated robbery. While a very literal reading of the three pertinent statutes would allow a conviction based on such an agreement, we note that applying the categorical approach does not require courts to conceive of every imaginable means by which a statute might possibly be violated. The Supreme Court has explained that

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.²³

The Supreme Court has held that a defendant “must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”²⁴ Gore has not done so nor attempted to do so. We therefore accept, with one modification, Gore's contention that the least culpable means of committing conspiracy to commit aggravated robbery under Texas law is to agree to 1) commit robbery and 2) threaten or place a person, who is 65 years of age or older or is disabled, in fear of imminent bodily injury or death.²⁵ Gore attempts to ignore the requirement under Texas law that one or more of the conspirators “performs an overt act in pursuance of the agreement” as an element of a conviction for conspiracy.

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²⁶ Gore could not have been...