United States v. Howell

• Decision Date: 22 September 2016
• Docket Number: No. 15–10336,15–10336
• Citation: 838 F.3d 489
• Parties: United States of America, Plaintiff–Appellee, v. Curtis Marrow Howell, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

838 F.3d 489

United States of America, Plaintiff–Appellee,

v.Curtis Marrow Howell, Defendant–Appellant.

No. 15–10336

United States Court of Appeals, Fifth Circuit.

Filed September 22, 2016

Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, 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, Charles M. Bleil, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant.

Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District Judge.^*

PRISCILLA RICHMAN OWEN, Circuit Judge:

Curtis Marrow Howell pleaded guilty to the federal crime of possession of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Howell's prior conviction under Texas Penal Code § 22.01(a)(1), (b)(2)(B) for assault constituted a “crime of violence” within the meaning of United States Sentencing Guidelines § 4B1.2(a). This resulted in an enhancement to the base offense level under § 2K2.1(a)(3) of the Guidelines. The district court sentenced Howell to 100 months of imprisonment, and Howell has appealed contending that his Texas conviction is not a crime of violence. We affirm.

I

Howell pleaded guilty, without a plea agreement, to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The Presentence Report (PSR) indicated that the handgun Howell possessed was a semiautomatic firearm capable of accepting a large-capacity magazine, which increased the base offense level under certain provisions of § 2K2.1(a) of the Guidelines.¹ The PSR also reflected that Howell had previously been convicted of a third-degree felony under a Texas statute, which provided that a person commits an offense if he or she

intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse ... [and] the offense is committed against ... a person [who is a family member or has another defined relationship with the defendant] ... [and] the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth.²

The PSR concluded that Howell's conviction under this statute qualified as a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a),³ without specifying whether one or both of the two subsections of that provision supported this conclusion. Pursuant to U.S.S.G. § 2K2.1(a)(3), the PSR recommended a base offense level of 22. After applying other adjustments, the PSR calculated a total offense level of 27 and a criminal history category of IV, yielding an advisory sentencing range of 100 to 120 months of imprisonment.

Howell filed written objections to the base offense level, arguing that the prior Texas conviction at issue in this appeal did not qualify as a “ ‘crime of violence’ under U.S.S.G. § 4B1.2.” Howell advanced two arguments. First, he contended that the Texas offense could not be a crime of violence because the mens rea required in the Texas statute included “recklessly” committing the assault. The Texas indictment alleged that he intentionally, knowingly, and recklessly caused injury to another person, and he asserted in his objections to the PSR that his guilty plea to that indictment must be construed as a plea to the least culpable conduct, which was recklessness. He did not specifically argue that “use” as used in subsection (1) of § 4B1.2(a) could not encompass reckless conduct, nor did he allude to the “use” language in that subsection. He did expressly address the residual clause embodied in § 4B1.2(a)(2), but he acknowledged that his argument regarding recklessness in this context was foreclosed by then-existing-circuit precedent, United States v. Espinoza.⁴ In Espinoza, this court held that a violation of Texas Penal Code § 22.01(a) and (b)(2)(A), with a mens rea of recklessness qualified as a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii).⁵ Second, Howell objected to the PSR on the basis that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

A PSR addendum recommended that the court reject Howell's objection regarding recklessness as foreclosed by precedent but did not address Howell's vagueness challenge. The addendum also attached the indictment, judgment, and judicial confession pertaining to Howell's prior Texas conviction.

At the sentencing hearing, Howell reaffirmed his objections to the offense-level enhancement for his prior Texas conviction of assault. The district court overruled those objections and imposed a sentence of 100 months of imprisonment, to be followed by two years of supervised release. Without the enhancement, Howell contends that his offense level would be 25, yielding an advisory sentencing range of 84 to 105 months of imprisonment.

Howell has appealed.

II

Because we conclude that Howell's prior Texas assault offense “has as an element the use, attempted use, or threatened use of physical force against the person of another,” within the meaning of § 4B1.2(a)(1) of the Guidelines, we do not reach the constitutional vagueness challenge to the “residual” clause of this Guidelines provision set forth in § 4B1.2(a)(2). The “residual” clause in § 4B1.2(a)(2) is identical in its wording to the “residual” clause in the ACCA,⁶ with the exception of the inclusion of the words “of a dwelling” after “burglary” in the Guidelines section. While Howell's appeal was pending, the Supreme Court held in Johnson v. United States that the residual clause in the ACCA is unconstitutionally vague.⁷

In light of Johnson, some of the reasoning in our decision in United States v. Espinoza⁸ remains persuasive, but its holding is no longer binding precedent, since the Espinoza opinion concluded that the Texas offense of assault, for which Howell was convicted, was a “violent felony” under the residual clause of the ACCA,⁹ and that clause is no longer an enforceable part of the ACCA.

However, the issue of whether the residual clause in § 4B1.2(a)(2) (as distinguished from the residual clause of the ACCA) is void for vagueness presents a constitutional issue that our court did not address in Espinoza. The Courts of Appeals that have considered the issue have divided: the Eleventh Circuit has held that none of the Sentencing Guidelines' provisions can be attacked as unconstitutional;¹⁰ the Third, Sixth, Seventh, and Tenth Circuits have held that § 4B1.2(a)(2) is unconstitutionally vague.¹¹ The Supreme Court may soon resolve the question; it has granted a petition for writ of certiorari in Beckles v. United States ,¹² and the issue is presented in that case. However, we are obliged to consider non-constitutional issues that would be dispositive of the appeal before we reach a constitutional question.¹³ We therefore first consider the Government's contention that Howell's Texas conviction is a “crime of violence” within the meaning of § 4B1.2(a)(1). The Government contends that the Texas assault offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”¹⁴

III

“For properly preserved claims, this court reviews the district court's interpretation and application of the Sentencing Guidelines de novo .”¹⁵ It is at least subject to debate, however, whether Howell preserved a claim that his prior offense did not have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

Conspicuously absent from the Government's brief is a statement or argument as to the standard of review that we should apply. Nor does the Government contend that Howell's objections in the district court were inadequate to preserve each of his contentions on appeal. We will assume, without deciding, that Howell's objections were sufficient to preserve the contention that his offense is not one involving a use of force, since we conclude that under either a de novo standard or the plain error standard of review, the district court did not err in determining that the prior Texas offense was a crime of violence.

It is not entirely clear if the district court considered whether Howell's Texas assault conviction has as an element the “use” of physical force under subsection (a)(1) of § 4B1.2. We may nevertheless affirm the district court's application of the Guidelines on any ground supported by the record.¹⁶

IV

The Government maintains that we need not consider whether committing the Texas offense at issue with the mental state of recklessness constitutes a crime of violence under § 4B1.2 because, the Government asserts, Howell judicially admitted in the state court of conviction that he acted intentionally in committing the assault. The state court records reflect that Howell pled guilty to the allegations in the indictment that he acted “intentionally, knowingly and recklessly.”

This court's decisions as to the effect of such a plea are in tension. Before we consider those decisions, however, an explanation of the so-called “categorical” and “modified categorical” approaches is necessary. In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted.¹⁷ We do not consider the actual conduct of the defendant in committing the offense.¹⁸ If the offense is an enumerated offense, such as burglary, we first determine the elements contained in the generic, contemporary meaning of that offense.¹⁹

In one of several decisions on the...