82 F.4th 437
5th Cir.2023Background
- In 2019 police stopped Dylan Kerstetter’s vehicle, found suspected meth and two firearms; Kerstetter was indicted under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
- Kerstetter pled guilty in 2021 and acknowledged that the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), could enhance his sentence, but argued the enhancement denied due process because facts about prior offenses being on "different occasions" were not charged or tried to a jury.
- The presentence report identified four prior guilty-plea convictions: 1993 delivery of cocaine; June 2008 burglary of a building; August 2008 burglary of a building; 2013 delivery of methamphetamine.
- The district court applied the ACCA (finding three qualifying prior convictions committed on different occasions) and sentenced Kerstetter to 190 months’ imprisonment.
- Kerstetter appealed, challenging (1) whether the "different occasions" finding must be alleged in the indictment and proved to a jury, and (2) whether his Texas burglary and drug-delivery convictions qualify for ACCA enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether facts that prior qualifying offenses were "committed on occasions different from one another" must be charged in the indictment and proved to a jury | Government: Prior precedent allows a judge to make those findings at sentencing; issue should be reviewed for plain error if unpreserved | Kerstetter: Due process/Apprendi-type claim; such facts must be charged and proved to a jury | Court: Rejected defendant; Fifth Circuit precedent controls (White, Davis); Wooden did not disturb that rule; ACCA finding may be made by judge |
| Whether Texas burglary convictions qualify as ACCA violent felonies | Government: Texas burglary fits the generic violent-felony definition under Fifth Circuit precedent | Kerstetter: Recent Supreme Court decisions abrogate Fifth Circuit test; Texas statute may be broader than generic burglary | Court: Affirmed that Texas burglary qualifies under existing Fifth Circuit framework (Herrold), and Taylor does not alter that state-vs-federal comparison rule |
| Whether Texas delivery (Tex. Health & Safety §481.112(a)) is a "serious drug offense" because it covers offers to sell | Government: Fifth Circuit precedent treats Texas delivery as a serious drug offense | Kerstetter: §481.112(a) criminalizes offers and fraudulent offers, sweeping beyond §924(e)(2)(A)(ii) | Court: Rejected defendant; Fifth Circuit precedent (Vickers, Clark) controls — offers do not render the statute categorically non-qualifying |
| Whether §481.112(a) is overbroad because it covers substances (e.g., position isomers) not in the federal CSA | Government: Prior Fifth Circuit decisions find Texas delivery qualifies; defendant must show realistic probability state prosecutes non-CSA substances | Kerstetter: Texas definition of some drugs (e.g., position isomers) is broader than federal CSA, so statute is overbroad | Court: Rejected defendant; he failed to show a realistic probability of prosecutions for non-CSA substances (Duenas-Alvarez test); delivery convictions count as serious drug offenses |
Key Cases Cited
- United States v. White, 465 F.3d 250 (5th Cir. 2006) (judge may make ACCA-related findings at sentencing)
- United States v. Davis, 487 F.3d 282 (5th Cir. 2007) (preservation and review rules for ACCA challenges)
- Wooden v. United States, 142 S. Ct. 1063 (2022) (Supreme Court declined to decide whether a jury must resolve whether prior crimes occurred on a single occasion)
- United States v. Valencia, 66 F.4th 1032 (5th Cir. 2023) (Wooden does not displace Fifth Circuit precedent on this issue)
- United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc) (test for whether Texas burglary is a generic violent felony)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability test for state statutes sweeping beyond generic federal offense)
- Shular v. United States, 140 S. Ct. 779 (2020) (interpretation of "serious drug offense" elements)
- United States v. Cain, 877 F.3d 562 (5th Cir. 2017) (Texas controlled-substance delivery qualifies as a serious drug offense)
- United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) (prior treatment of Texas delivery statutes under ACCA)
- United States v. Clark, 49 F.4th 889 (5th Cir. 2022) (reaffirming that offer-to-sell reach does not categorically defeat ACCA qualification)