582 F. App'x 416
5th Cir.2014Background
- Defendant Brandon Demond Fearance appealed a 180-month sentence under the Armed Career Criminal Act (ACCA) after conviction for possession of a firearm by a felon (18 U.S.C. § 922(g)).
- The ACCA enhancement was based on three prior Texas convictions, including burglary of a habitation (Texas Penal Code § 30.02) and possession with intent to deliver cocaine (Tex. Health & Safety Code § 481.112(a)).
- Fearance argued his Texas burglary conviction did not qualify as an ACCA "violent felony" because § 30.02 is not divisible and criminalizes non-violent conduct; he also challenged the sufficiency of his judicial confession to narrow the offense.
- He also argued his Texas drug convictions were not "serious drug offenses" under the ACCA.
- Fearance sought remand for resentencing so the district court could impose a sentence below the statutory minimum, alleging the court mistakenly believed it could not credit pretrial time by reducing the sentence below the mandatory minimum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas burglary conviction qualifies as an ACCA "violent felony" | Government: § 30.02 is divisible and the confession shows a qualifying burglary | Fearance: § 30.02 is indivisible and covers non-violent conduct; confession insufficient to narrow offense | Affirmed: § 30.02 is divisible; his written judicial confession admitted qualifying subsection, so burglary counts as a violent felony under ACCA |
| Whether Texas drug convictions are "serious drug offenses" under ACCA | Government: § 481.112 convictions qualify as serious drug offenses | Fearance: These convictions do not meet ACCA definition of serious drug offense | Affirmed: Under circuit precedent, § 481.112 convictions are serious drug offenses for ACCA purposes |
| Whether district court erred by not imposing sentence below statutory minimum | Fearance: Court wanted to credit time served and mistakenly thought it could not reduce below mandatory minimum; requests remand | Government: No authority provided to show error | Denied: No error shown; no basis for remand or resentencing below ACCA minimum |
| Standard of review for ACCA classification | N/A | N/A | Court reviews legal conclusions de novo when applying ACCA |
Key Cases Cited
- United States v. Fuller, 453 F.3d 274 (5th Cir.) (standard: de novo review of legal conclusions applying ACCA)
- United States v. Conde-Castaneda, 753 F.3d 172 (5th Cir.) (held Texas Penal Code § 30.02 divisible; written confession can show conviction of qualifying burglary subsection)
- United States v. Silva, 957 F.2d 157 (5th Cir.) (discusses burglary as ACCA predicate)
- United States v. Vickers, 540 F.3d 356 (5th Cir.) (held Texas § 481.112 drug convictions qualify as serious drug offenses under ACCA)