United States v. Emeary, 773 F.3d 619

Background

Bennie D. Emeary Jr. was convicted of being a felon in possession of a firearm; the district court applied the ACCA and sentenced him to a 15-year mandatory minimum based on three prior "violent felonies."
Emeary's original counsel failed to file a timely appeal; the district court found ineffective assistance and reinstated his right to appeal and reentered judgment in 2009. A new attorney filed an Anders brief on appeal and the Fifth Circuit dismissed the appeal; mandate issued March 8, 2010.
Nearly five years later, Emeary (pro se) moved to recall the court's mandate, arguing his Texas conviction under Tex. Penal Code § 30.02(a)(3) is not a "violent felony" under the ACCA and thus his sentence was legally erroneous.
The Fifth Circuit considered (1) whether the motion to recall the mandate should be treated as a successive habeas petition under AEDPA and (2) whether the merits of Emeary's ACCA challenge warranted recalling the mandate.
The court concluded AEDPA applicability was murky but declined to decide that question because the motion failed on the merits — Emeary had not shown a likelihood of success given legal ambiguity and plain‑error review, so recall was not warranted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the mandate should be recalled to correct an alleged sentencing error	Emeary: mandate should be recalled because one prior offense was not an ACCA "violent felony," so his 15‑year sentence is erroneous	Government: mandate recall is extraordinary; motion may be treated as successive habeas and/or fails on the merits	Denied — recall requires extraordinary circumstances and likelihood of success; Emeary failed to show likelihood of success
Whether the motion is a successive habeas petition under AEDPA	Emeary: (implicitly) seeks relief on the reinstated judgment; not necessarily barred	Government: Calderon suggests such motions can be treated like habeas petitions and AEDPA may bar successive petitions	Court: AEDPA applicability is unclear here; court did not resolve AEDPA issue because motion fails on other grounds
Whether Emeary's Texas § 30.02(a)(3) conviction qualifies as an ACCA "violent felony"	Emeary: Constante requires that offense not be treated as an ACCA burglary, so it cannot be a "violent felony"	Government: Constante held the offense is not a "burglary" but did not resolve whether it falls within the ACCA residual clause; ambiguity remains	Held: The law is ambiguous; Constante does not plainly foreclose classification under the residual clause, so no clear or obvious error shown
Standard of review and plea‑agreement waivers effect	Emeary: seeks resentencing	Government: because no district objection, review would be plain‑error; plea waiver may bar relief	Held: Plain‑error review applies and any error is not "clear or obvious"; plea waiver further weakens Emeary's chance of relief

Key Cases Cited

Calderon v. Thompson, 523 U.S. 538 (recognizing mandate‑recall motions may be treated like habeas petitions)
Magwood v. Patterson, 561 U.S. 320 (second habeas petition challenging a different, intervening judgment is not "successive")
United States v. Constante, 544 F.3d 584 (5th Cir.) (Texas § 30.02(a)(3) is not ACCA "burglary")
James v. United States, 550 U.S. 192 (residual clause may cover conduct similar to generic burglary)
Chambers v. United States, 555 U.S. 122 (noting difficulty of applying ACCA residual clause)
Olano v. United States, 507 U.S. 725 (plain‑error standard for unpreserved errors)
United States v. Tapp, 491 F.3d 263 (5th Cir.) (procedural precedent referenced re: reinstated appellate rights)
United States v. West, 240 F.3d 456 (5th Cir.) (reentry of judgment to reinstate appeal rights)
In re Cain, 137 F.3d 234 (5th Cir.) (a habeas petition is not necessarily "successive" simply because it follows an earlier petition)
United States v. Melancon, 972 F.2d 566 (5th Cir.) (effect of plea agreement waivers on collateral relief)