20 F.4th 1071
5th Cir.2021Background
- Greer pleaded guilty in Aug. 2019 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- The PSR applied USSG §2K2.1(a)(1) (base offense level 26) based on two prior Texas family-violence assault convictions under Tex. Penal Code §22.01, producing a total offense level of 29 and a guidelines range of 121–151 months; the district court sentenced him to the statutory maximum of 120 months (Dec. 2019).
- Greer objected below (preserving appellate review) that the Texas statutes allow reckless mens rea and thus might not qualify as "crimes of violence," but acknowledged Fifth Circuit precedent (Howell, Reyes-Contreras) to the contrary.
- After Greer’s cert petition, the Supreme Court decided Borden v. United States (June 2021), holding offenses with a mens rea of recklessness do not qualify as violent felonies under ACCA; SCOTUS vacated and remanded Greer’s case to the Fifth Circuit in light of Borden.
- On remand the Fifth Circuit held that under Borden (and Texas law recognizing recklessness in §22.01), Greer’s two priors no longer qualify as crimes of violence; removing them would lower Greer’s total offense level to 23 and his guidelines range to 70–87 months (a 33‑month difference from his current sentence).
- The court concluded the Government failed to meet its heavy burden to show the guidelines error was harmless, vacated Greer’s sentence, and remanded for resentencing in light of Borden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Greer’s Texas §22.01 family‑violence assault convictions qualify as "crimes of violence" under USSG §4B1.2(a) after Borden | Under Howell and Reyes‑Contreras, the convictions qualify because the "use of physical force" language reaches knowing or reckless conduct | The Texas statutes permit recklessness; Borden holds reckless offenses are not violent felonies, so the priors do not qualify | Borden controls; because the statutes encompass recklessness (see Price), the priors do not qualify as crimes of violence for §2K2.1 enhancement |
| Whether the district court’s erroneous guidelines calculation was harmless error (so the 120‑month sentence should stand) | The court’s sentencing statements and §3553(a) analysis show it would have imposed the same 120‑month term regardless of the guidelines error | Government cannot carry its heavy burden; record lacks a clear, convincing indication the court would have imposed the same sentence absent the error | Government failed to prove harmlessness; vacatur and remand for resentencing required |
Key Cases Cited
- Borden v. United States, 141 S. Ct. 1817 (2021) (holding offenses with reckless mens rea are not violent felonies under ACCA)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (holding certain statutes reach reckless and knowing conduct for purposes of federal crimes)
- United States v. Reyes‑Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc) (interpreting "use of physical force" to include reckless conduct for guideline/immigration provision)
- United States v. Howell, 838 F.3d 489 (5th Cir. 2016) (concluding Texas §22.01(a)(1),(b)(2)(B) qualified as crime of violence under Guideline language pre‑Borden)
- Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) (construing §22.01 and recognizing that subsections include reckless mens rea)
- United States v. Guzman‑Rendon, 864 F.3d 409 (5th Cir. 2017) (explaining two methods for proving harmless error when guidelines range is erroneous)
- United States v. Ibarra‑Luna, 628 F.3d 712 (5th Cir. 2010) (requiring the Government to show the district court would have imposed the same sentence for the same reasons)
- United States v. Richardson, 676 F.3d 491 (5th Cir. 2012) (describing the Government’s heavy burden to prove a particular sentence would have been imposed notwithstanding an error)
- United States v. Martinez‑Romero, 817 F.3d 917 (5th Cir. 2016) (vacating sentence where record did not show sentencing was independent of erroneous guidelines calculation)
- United States v. Soza, 874 F.3d 884 (5th Cir. 2017) (noting that imposition of the statutory maximum favors harmlessness but is not dispositive where disparity between ranges is significant)