United States v. Burris, 17-10478

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 896 F.3d 320
• Docket Number: No. 17-10478,17-10478
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Latroy Leon BURRIS, Defendant–Appellant
• Decision Date: 18 June 2018

896 F.3d 320

UNITED STATES of America, Plaintiff–Appellee
v.
Latroy Leon BURRIS, Defendant–Appellant

No. 17-10478

United States Court of Appeals, Fifth Circuit.

June 18, 2018
MODIFIED July 16, 2018
REVISED August 3, 2018

Gail A. Hayworth, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, for Plaintiff–Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, 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

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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. We agree with Burris, and hold that the Texas robbery statute underlying one of his prior convictions does not have "use, attempted use, or threatened use of physical force" as an element. We therefore vacate his sentence and remand for resentencing.

I. FACTS AND PROCEEDINGS

In July 2016, Burris pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1) & (b)(1)(C).¹ 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 undoubtedly was, and (2) has three prior convictions for violent felonies or serious drug offenses.² If a defendant meets these criteria, he is subject to a minimum sentence of fifteen years imprisonment.³

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.⁴ The district court ultimately adopted the findings of the PSR, concluding that Burris's prior convictions for robbery and aggravated robbery did qualify 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.⁵ Burris now concedes that his aggravated robbery conviction qualifies as a violent felony,⁶ so this appeal now concerns only whether Burris's conviction for simple robbery qualifies as a violent felony.

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

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under the ACCA.⁷

III. DISCUSSION

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[.]⁸

Before the Supreme Court's decision in Samuel Johnson v. United States ,⁹ 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."¹⁰ In Samuel Johnson , however, the Court struck down the residual clause as unconstitutionally vague.¹¹ 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. The Elements of Texas Robbery

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.¹²

For today's purpose, 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 indivisible or divisible¹³ —that is, whether robbery-by-injury and robbery-by-threat are (1) different crimes or (2) a single crime that can be committed by two different means.¹⁴ We need not decide that issue here, however, because our analysis under either outcome would be the same.

If § 29.02(a) is indivisible, the court "focus[es] solely on whether the elements of the crime of conviction" include the use

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of force.¹⁵ Therefore, if either robbery-by-injury or robbery-by-threat does not require the use of force, robbery is not a violent felony.

On the other hand, if § 29.02(a) is divisible, "we isolate the alternative under which the defendant was convicted," then determine whether force is an element of that particular offense.¹⁶ To do so, courts may "look 'to a limited class of documents ... to determine what crime, with what elements, a defendant was convicted of.' "¹⁷

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.¹⁸ The only exception to this rule does not apply here because the conviction documents do not reference the lesser-included offense to that of the indictment.¹⁹ Because we cannot ascertain the variant of robbery for which Burris was convicted, we must analyze both robbery-by-injury and robbery-by-threat, even if § 29.02(a) is divisible. This is why we need not decide here whether robbery is divisible or indivisible.²⁰

We first address robbery-by-injury. If a defendant can "cause bodily injury" without "using force," then the Texas robbery statute—or at least its robbery-by-injury prong—does not have use of force as an element.²¹ As explained below, we conclude that a person can "cause bodily injury" without using force, so Burris's conviction under § 29.02(a) is not a violent felony.

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C. A Plethora of Precedent

As an initial matter, we note that another panel of this court, in an unpublished, one-sentence opinion, recently affirmed a district court's ruling that Texas robbery is not a violent felony under the ACCA.²² Even though that holding does not bind us, relevant authority has evolved in recent years. We find it helpful to recount that evolution here.

1. The En Banc Court Answers Our Question

Texas defines "bodily injury" as "physical pain, illness, or any impairment of physical condition."²³ Our court has previously considered whether this broad definition of bodily injury requires physical force. In United States v. Vargas-Duran , the en banc court considered whether the Texas crime of "intoxication assault," which requires the defendant to have "cause[d] serious bodily injury to another" was a "crime of violence" under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2, which "has as an element the use, attempted use, or threatened use of physical force against the person of another."²⁴ The en banc court held that it did not, for two reasons. First, the court explained, the Texas statute does not require that the defendant have the state of mind needed to "use" force: "the fact that the statute requires that serious bodily injury result ... does not mean that the statute requires that the defendant have used the force that caused the injury."²⁵ Second, the court added that "[t]here is also a difference between a defendant's causation of an injury and the defendant's use of force."²⁶

We reiterated this difference in United States v. Villegas-Hernandez , when we considered whether the Texas crime of...