49 F.4th 889
5th Cir.2022Background
- Glnyzo Clark pled guilty to being a felon in possession of a firearm; the ACCA would raise his mandatory minimum to 15 years.
- The PSR recommended ACCA treatment based on four prior Texas convictions: aggravated assault by threat; aggravated assault causing bodily injury; burglary of a habitation; and possession with intent to distribute.
- The district court rejected ACCA treatment, finding Clark’s prior convictions did not qualify as ACCA predicates.
- The government appealed; the Fifth Circuit reviews whether prior convictions qualify as ACCA predicates de novo.
- The panel analyzed each prior conviction under controlling Fifth Circuit and Supreme Court precedents to determine whether at least three qualify as ACCA predicates.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Clark) | Held |
|---|---|---|---|
| Do Clark’s aggravated-assault convictions qualify as ACCA violent felonies? | Threatening assault under Tex. Penal Code §22.01(a)(2) qualifies; the bodily-injury assault may be reckless and thus not qualify. | Neither assault conviction should count. | Threat-by-threat conviction qualifies as a violent felony; the bodily-injury conviction does not (recklessness disqualifies per Borden). |
| Does Clark’s Texas burglary of a habitation qualify as generic burglary under the ACCA, and can the government now rely on that position despite a prior concession? | §30.02(a) qualifies in full under Herrold II; the government’s earlier sentencing concession does not bind the appellate court. | The government waived or invited error by conceding at sentencing and should be precluded from relying on Herrold II. | Herrold II controls: §30.02(a) constitutes generic burglary; the government’s earlier concession did not preclude relying on Herrold II. |
| Does possession-with-intent to distribute under Tex. Health & Safety §481.112(a) qualify as a “serious drug offense” under the ACCA given Vickers, Tanksley, Shular, and fraudulent-offer theories? | Vickers controls and §481.112 qualifies; Shular does not undo Vickers’ result; Ochoa-Salgado rejects the fraudulent-offer theory of delivery. | Tanksley or Shular (and the possibility of a fraudulent-offer delivery) foreclose treating §481.112 as an ACCA predicate. | Vickers remains good law for ACCA purposes; Shular does not abrogate Vickers here; Ochoa-Salgado forecloses the fraudulent-offer loophole—§481.112 qualifies as a serious drug offense. |
| Do at least three prior convictions qualify as ACCA predicates so that Clark’s sentence must be vacated and remanded for resentencing under ACCA? | Three qualifying predicates exist (threat aggravated assault, burglary, possession with intent) so ACCA applies. | Fewer than three predicates exist; ACCA does not apply. | The court found three qualifying predicates and vacated the sentence, remanding for resentencing under the ACCA. |
Key Cases Cited
- United States v. Prentice, 956 F.3d 295 (5th Cir. 2020) (panel precedent on ACCA predicate analysis)
- United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) (§481.112 qualifies as a "serious drug offense" under the ACCA)
- Shular v. United States, 140 S. Ct. 779 (2020) (interpreting "involving" in ACCA to focus on underlying conduct)
- Borden v. United States, 141 S. Ct. 1817 (2021) (offenses with a mens rea of recklessness do not qualify as ACCA violent felonies)
- United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (Herrold II: §30.02(a) constitutes generic burglary for ACCA purposes)
- Ochoa-Salgado v. Garland, 5 F.4th 615 (5th Cir. 2021) (Texas §481.112 requires intent to sell; fraudulent-offer theory does not constitute delivery)
- United States v. Torres, 923 F.3d 420 (5th Cir. 2019) (construing §16/ACCA elements clauses congruently)
- United States v. Guzman, 797 F.3d 346 (5th Cir. 2015) (precedent treating threatening assault as crime of violence)