United States v. Castillo-Rivera
Decision Date | 02 September 2016 |
Docket Number | No. 15–10615,15–10615 |
Citation | 836 F.3d 464 |
Parties | United States of America, Plaintiff–Appellee v. Juan Castillo–Rivera, Defendant Appellant |
Court | U.S. Court of Appeals — Fifth Circuit |
Brian W. Portugal, James Wesley Hendrix, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.
Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, Jerry Van Beard, Esq., Assistant Federal Public Defender, John MacIntyre Nicholson, Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
Juan Castillo–Rivera, convicted of illegal reentry under 8 U.S.C. § 1326, appeals his sentence. The question presented is whether Texas Penal Code § 46.04 prohibiting possession of a firearm by a felon qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43). Under our precedent, it does. Therefore, we affirm.
In Nieto Hernandez v. Holder, we squarely held that “TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)'s definition of ‘aggravated felony.’ ”1 Castillo–Rivera urges that this holding does not foreclose his overbreadth arguments because they were not considered in Nieto Hernandez.2 We rejected an identical position in United States v. Herrold.3 In Herrold, the question under review was whether a Texas statute qualified as generic “burglary” for purposes of the Armed Career Criminal Act. Although we had already concluded in United States v. Silva4 that the statute qualified as generic burglary, the defendant insisted that this holding did not foreclose a novel argument that the Silva panel “never considered.” We disagreed, explaining that the failure of the Silva panel to “consider the argument that Herrold now advance[d] d[id] not make the holding any less binding.”5 The same reasoning applies here. We are bound by the holding in Nieto Hernandez, and Castillo–Rivera's new arguments provide no basis to depart from precedent.6 The judgment and sentence are AFFIRMED.
Were we not bound by our holding in Nieto Hernandez v. Holder , 592 F.3d 681 (5th Cir. 2009), I would hold that a Texas conviction for being a felon in possession of a firearm under Texas Penal Code (TPC) § 46.04(a) is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii). In my view, an offense under TPC § 46.04(a) is not “described in” 18 U.S.C. § 922(g)(1) because the plain language of the state statute makes clear that it criminalizes some conduct that the federal statute does not.
Specifically, it is beyond dispute that, unlike the federal statute, TPC § 46.04(a) criminalizes the possession of a firearm by persons who have been convicted of certain offenses that are not punishable by a term of imprisonment exceeding one year.1 Compare 18 U.S.C. § 922(g)(1) ( ), with TPC § 46.04(f) ( ). A defendant's showing that the plain language of a state statute clearly criminalizes conduct that is outside the scope of the relevant federal or generic offense is sufficient to establish that that the state offense is broader. See United States v. Ortiz–Gomez , 562 F.3d 683, 685–87 (5th Cir. 2009) ( ); United States v. Cruz–Rodriguez , 625 F.3d 274, 276 (5th Cir. 2010) ( ).
I would also reject the Government's contention that TPC § 46.04(f) is divisible. It is the Government's burden to prove that a prior conviction qualifies for a sentencing enhancement. See United States v. Constante , 544 F.3d 584, 587 (5th Cir. 2008). Yet the Government makes only a bare assertion that § 46.04(f) is divisible because it “sets out one or more elements of the offense in the alternative,” without making any showing that a jury must unanimously agree that a particular alternative under this section was proven beyond reasonable doubt. The Government therefore has not satisfied its burden to establish that the state statute is divisible. See Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 2256, 195 L.Ed.2d 604 (2016) ( ). Thus, were I writing on a clean slate, I would hold that § 46.04(a) is not an aggravated felony and therefore that the district court erred in applying a sixteen-level enhancement in sentencing the appellant.
Our slate is not clean, however. I agree with the majority that Nieto Hernandez controls the outcome of this case and mandates that we affirm the district court's sentence under our court's rule of orderliness.2 See United States v. Herrold , 813 F.3d 595 (5th Cir. 2016) ( ); Cent. Pines Land Co. v. United States , 274 F.3d 881, 893 (5th Cir. 2001) (). But I do not think that this should be the end of the matter. In my view, the combination of Nieto Hernandez and Herrold leads to a result that is plainly wrong. While I do not fault the Nieto Hernandez panel for failing to consider arguments that the parties in that case never made, we should not allow its decision to answer such an important sentencing question by default and foreclose the valid challenge raised by the appellant in this case. I therefore urge our court to reconsider and correct Nieto Hernandez's erroneous holding en banc.
1 592 F.3d 681, 686 (5th Cir. 2009). Under § 1101(a)(43)(E)(ii), an aggravated felony includes an offense described in 18 U.S.C. § 922(g)(1), the federal statute prohibiting possession of a firearm by a felon.
2 Castillo–Rivera argues that Texas Penal Code § 46.04 is substantively broader than 18 U.S.C. § 922(g)(1) because Texas's definition of a felony offense differs from the U.S. Code, and because Texas's definition of a firearm differs from the U.S. Code.
5 Herrold , 813 F.3d at 598–99 ; see also Sykes v. Tex. Air Corp ., 834 F.2d 488, 492 (5th Cir. 1987) ().
6 Castillo–Rivera also argues on appeal that Texas Penal Code § 46.04 cannot be described in 18 U.S.C. § 922(g)(1) because the federal statute contains a unique interstate commerce element. This argument is now foreclosed by the Supreme Court's decision in Torres v. Lynch , –––U.S. ––––, 136 S.Ct. 1619, 1634, 194 L.Ed.2d 737 (2016).
1 I also note that the federal statute contains several exclusions that the state statute does not. 18 U.S.C. § 921(a)(20) provides, inter alia :
2 In Nieto Hernandez, an alien petitioned for review of the Board of Immigration...
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United States v. Castillo-Rivera
...that ‘TPC § 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)'s definition of ‘aggravated felony’ " United States v. Castillo-Rivera , 836 F.3d 464, 464 (5th Cir. 2016) (quoting Nieto Hernandez v. Holder , 592 F.3d 681, 686 (5th Cir. 2009) ). Because it concluded that it was bound by previ......