United States v. Garrett, 24 F.4th 485

Defendant David Lee Garrett was convicted in 2017 of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
He had three prior state convictions relevant to ACCA: two burglaries (undisputed predicates) and one Texas simple robbery under Tex. Penal Code § 29.02.
The district court declined to treat the Texas robbery as an ACCA predicate and imposed an 84‑month sentence; the government appealed.
This Court initially reversed, treating the robbery as a predicate; the Supreme Court vacated and remanded for consideration in light of Borden v. United States (holding offenses committed by mere recklessness are not ACCA violent felonies).
On remand, the Fifth Circuit held the Texas simple robbery statute is divisible into robbery‑by‑injury and robbery‑by‑threat, the record of conviction established robbery‑by‑threat (intent/knowledge), and that robbery‑by‑threat qualifies as an ACCA violent felony; the case was remanded for resentencing under the ACCA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tex. Penal Code § 29.02 is divisible (separate offenses) or an indivisible statute with alternative means	Garrett: statute is a single, indivisible crime because it permits commission by recklessness	Government: statute contains distinct offenses (robbery‑by‑injury vs. robbery‑by‑threat) and is divisible	Divisible: statute’s numbered subdivisions, distinct conduct, and differing mens rea show separate offenses
If divisible, whether the record shows which alternative offense Garrett was convicted of	Garrett: (contends statute problematic under Borden) impliedly argues conviction could be the reckless alternative	Government: indictment and plea establish he threatened/placed victim in fear (robbery‑by‑threat)	Record (indictment and plea) shows conviction for robbery‑by‑threat (intent/knowledge)
Whether robbery‑by‑threat qualifies as an ACCA violent felony after Borden	Garrett: Borden bars statutes that allow reckless commissions; thus simple robbery cannot qualify	Government: robbery‑by‑threat requires intent/knowledge and involves threatened use of physical force, so it fits the ACCA force clause	Robbery‑by‑threat is a violent felony under ACCA; Borden does not undermine that holding

Borden v. United States, 141 S. Ct. 1817 (2021) (offenses that can be committed through mere recklessness are not ACCA violent felonies)
Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility/modified categorical approach framework)
Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008) (Texas assault statute comprises distinct result‑ and conduct‑oriented offenses; instructive on divisibility)
United States v. Torres, 923 F.3d 420 (5th Cir. 2019) (applied Landrian to find related Texas offenses divisible)
United States v. Howell, 838 F.3d 489 (5th Cir. 2016) (distinguishing means from elements; jury unanimity test informs divisibility)
Alejos‑Perez v. Garland, 991 F.3d 642 (5th Cir. 2021) (application of the modified categorical approach)
United States v. Massey, 858 F.3d 380 (5th Cir. 2017) (standard of review: de novo for ACCA predicate questions)