United States v. Guzman, 2015 U.S. App. LEXIS 14684

Background

Albert Guzman petitioned for panel rehearing after this Court’s decision, arguing for the first time that his ACCA sentence is invalid in light of Johnson v. United States.
Johnson (decided after the panel opinion) invalidated the ACCA’s residual clause but left intact the ACCA’s elements-based violent-felony definition.
Guzman concedes two prior burglaries qualify as ACCA violent felonies but disputes that he has a third qualifying prior conviction to trigger ACCA enhancement.
The contested prior conviction is a 1995 Texas aggravated-assault conviction under Tex. Penal Code § 22.02(a), which included threatening imminent bodily injury (§ 22.01(a)(2)) and using/exhibiting a deadly weapon (§ 22.02(a)(2)); Guzman’s judicial confession narrowed his conviction to those alternatives.
The legal question is whether that offense has as an element the threatened use of physical force under 18 U.S.C. § 924(e)(2)(B)(i), i.e., whether the statute’s threat-plus-weapon combination qualifies as a "violent felony."
Because Guzman raised the issue for the first time in a rehearing petition, the court considered whether extraordinary circumstances exist and, if treated as an appeal, whether plain error occurred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Guzman’s § 22.02(a) aggravated-assault conviction qualifies as an ACCA "violent felony" under the elements clause	Guzman: the conviction (threat + weapon) does not necessarily have an element of threatened use of physical force and thus is not a violent felony	Government: Guzman’s judicial confession and statute show the conviction involved threat plus use/exhibition of a deadly weapon, satisfying the elements clause	The court denied rehearing: on the record the issue is legally disputed; Guzman failed to show plain, reversible error or extraordinary circumstances
Whether Johnson’s invalidation of the residual clause requires vacatur here	Guzman: Johnson may render his ACCA sentence invalid if he lacks three qualifying priors	Government: Johnson doesn’t help if three priors still qualify under the elements clause	Court: Johnson is irrelevant if three priors qualify; Guzman conceded two burglaries qualify and failed to show the third prior clearly fails under current law
Whether the plain-error standard is met when issue raised belatedly	Guzman: requests reconsideration under intervening law	Government: any new claim would be reviewed for plain error	Court: legal landscape was disputed such that error is not plain or obvious; plain-error standard not met
Whether extraordinary circumstances justify consideration of a new issue on rehearing	Guzman: asks rehearing due to intervening Supreme Court decision	Government: rehearing rarely granted for new issues; extraordinary showing required	Court: Guzman did not demonstrate extraordinary circumstances; petition denied

Key Cases Cited

United States v. Hernandez-Gonzalez, 405 F.3d 260 (5th Cir. 2005) (standards for considering issues raised first in rehearing petition)
United States v. Middlebrooks, 624 F.2d 36 (5th Cir. 1980) (granting rehearing where intervening Supreme Court decision changed law)
United States v. Fernandez, 559 F.3d 303 (5th Cir. 2009) (plain-error review of issues raised first on appeal)
Cotton v. United States, 535 U.S. 625 (2002) (plain-error test elements)
United States v. Rodriguez-Parra, 581 F.3d 227 (5th Cir. 2009) (legal error must be clear or obvious for plain error)
Puckett v. United States, 556 U.S. 129 (2009) (discretion to remedy plain error only if it affects fairness, integrity, or public reputation of proceedings)
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (distinguishing causation of injury from use of force in crime-of-violence analysis)
United States v. Velasco, 465 F.3d 633 (5th Cir. 2006) (use of a deadly weapon can satisfy elements-of-force requirement)
Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)