United States v. Bennie D. Emeary, Jr.
794 F.3d 526
5th Cir.2015Background
- Bennie D. Emeary Jr. pleaded guilty (2005) to unlawful possession of a firearm; sentence imposed was 15 years under the Armed Career Criminal Act (ACCA) based on three prior "violent felony" convictions.
- One predicate was a 1998 Texas conviction under Tex. Penal Code § 30.02(a)(3) (entering a building without consent and committing or attempting a felony or theft).
- Emeary appealed; counsel filed an Anders brief asserting no nonfrivolous issues and the Fifth Circuit dismissed the appeal (mandate issued Mar. 8, 2010).
- Circuit precedent (United States v. Constante) held § 30.02(a)(3) is not a burglary for ACCA purposes; post-Johnson (residual clause voided), it became clear such Texas offenses are not ACCA "violent felonies."
- Emeary moved to recall the mandate, arguing his 15‑year ACCA sentence exceeded the statutory maximum (10 years) because the § 30.02(a)(3) conviction is not an ACCA predicate; the court found counsel and the panel committed plain error by failing to identify this issue in the Anders process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 30.02(a)(3) Texas conviction is an ACCA "violent felony" predicate | Emeary: Constante and Johnson show § 30.02(a)(3) is not an ACCA predicate; thus ACCA enhancement was invalid | Government: panel initially treated scope of Constante as unclear regarding the residual clause, potentially supporting ACCA treatment | Court: § 30.02(a)(3) is not an ACCA "violent felony" (residual clause voided by Johnson); enhancement was erroneous |
| Whether Emeary's 15-year sentence exceeded statutory maximum | Emeary: With § 30.02(a)(3) excluded, highest applicable maximum is 10 years, so 15-year sentence was plain error | Government: appeal waiver and earlier procedural rulings may bar relief; scope of Constante created uncertainty | Court: The sentence was plainly erroneous and excessive; relief appropriate by recalling mandate |
| Whether Anders counsel and the panel erred in failing to identify the issue on appeal | Emeary: Counsel failed to challenge characterization of prior conviction and to contest appeal waiver; Anders brief was inadequate | Government: Anders process is for screening frivolous appeals; earlier panel interpreted Constante as unclear | Court: Counsel and the panel committed serious omission; Anders brief inadequate under Garland standard; plain error review warranted |
| Whether the court may recall its mandate to correct the error | Emeary: Mandate should be recalled to prevent injustice and correct plain error | Government: (Implicit) enforce finality and appeal waiver; earlier denial suggested uncertainty | Held: Mandate recalled, appeal reinstated, counsel appointed and expedited review ordered |
Key Cases Cited
- Goodwin v. Johnson, 224 F.3d 450 (5th Cir. 2000) (courts of appeals possess inherent power to recall mandates)
- United States v. Tolliver, 116 F.3d 120 (5th Cir. 1997) (affirming appellate authority to recall mandates)
- Calderon v. Thompson, 523 U.S. 538 (1998) (mandate‑recall power limited to extraordinary circumstances)
- United States v. Constante, 544 F.3d 584 (5th Cir. 2008) (Tex. Penal Code § 30.02(a)(3) not a burglary for ACCA purposes)
- Johnson v. United States, 576 U.S. 591 (2015) (ACCA residual clause is unconstitutionally vague)
- Anders v. California, 386 U.S. 738 (1967) (procedures when appointed counsel finds appeal frivolous)
- Penson v. Ohio, 488 U.S. 75 (1988) (purpose and limits of Anders screening)
- Smith v. Robbins, 528 U.S. 259 (2000) (appointed counsel’s duty to act zealously for indigent’s interests)