588 F. App'x 384
5th Cir.2014Background
- Hornyak, a convicted felon, was convicted of possession of a firearm by a felon.
- He challenged whether Texas §38.04 evading arrest by motor vehicle qualifies as an ACCA violent felony.
- He argued the ACCA residual clause is unconstitutionally vague and should be reconsidered.
- He sought reexamination of United States v. Harrimon, which held §38.04(b)(1) a violent felony under the ACCA.
- The government moved for summary affirmance; the panel concluded his arguments are foreclosed and affirmed.
- The court noted a general rule against panel overrule of prior panel decisions absent en banc or Supreme Court change.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §38.04(b)(1) qualify as a violent felony under the ACCA? | Hornyak argues it may not qualify under Harrimon’s framework. | Government argues Harrimon forecloses any challenge; it is a violent felony. | Foreclosed; §38.04(b)(1) is a violent felony under the ACCA. |
| Is the ACCA residual clause void for vagueness? | Hornyak contends the residual clause is unconstitutionally vague. | Government contends the residual clause is constitutional; Supreme Court has rejected vagueness challenges. | Foreclosed; residual clause not void for vagueness. |
Key Cases Cited
- United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009) (holding §38.04 is a violent felony under the ACCA)
- United States v. Spann, 562 F. App’x 237 (5th Cir.) (supports Harrimon; motor-vehicle evasion deemed violent felony)
- United States v. Standberry, 546 F. App’x 381 (5th Cir. 2013) (addressed vehicle evasion and ACCA considerations)
- United States v. Holston, 471 F. App’x 308 (5th Cir. 2012) (rejects nuanced arguments about degree of risk in Texas evading arrest)
- United States v. Whitfield, 451 F. App’x 415 (5th Cir. 2011) (discusses risk-based distinctions in related offenses)
- United States v. Gore, 636 F.3d 728 (5th Cir. 2011) (reaffirms residual clause posture; vagueness considerations)
- James v. United States, 550 U.S. 192 (Supreme Court 2007) (vagueness jurisprudence for residual clauses)