United States v. Latroy Burris
920 F.3d 942
5th Cir.2019Background
- Defendant Latroy Burris pleaded guilty to being a felon in possession of a firearm; the PSR treated him as an Armed Career Criminal (ACCA) based on three prior Texas convictions (robbery (1993), aggravated robbery (1993), and a 2012 drug conviction).
- Burris conceded aggravated robbery qualified but disputed that Texas simple robbery (§ 29.02(a)) is a "violent felony" under the ACCA elements clause (use, attempted use, or threatened use of physical force).
- The panel had earlier held Texas robbery was not a violent felony; the court withdrew that opinion pending en banc and Supreme Court decisions.
- The panel considered intervening authorities — the Fifth Circuit en banc decision in United States v. Reyes‑Contreras and the Supreme Court’s decision in Stokeling v. United States — and received supplemental briefing.
- The court evaluated (1) whether Texas robbery is divisible, (2) whether § 29.02(a)(1) (robbery‑by‑injury) and § 29.02(a)(2) (robbery‑by‑threat) require the use of physical force as defined by federal law, and (3) whether later clarifying decisions apply retroactively.
Issues
| Issue | Plaintiff's Argument (Gov.) | Defendant's Argument (Burris) | Held |
|---|---|---|---|
| Whether Texas simple robbery (§ 29.02(a)) is a "violent felony" under ACCA elements clause | Texas robbery qualifies because its elements (causing bodily injury or placing another in fear of imminent bodily injury/death) involve use, attempted use, or threatened use of physical force | Burris argued Texas robbery does not categorically require the ACCA’s "physical force" (and earlier panel precedent supported that view) | Held: § 29.02(a)(1) and (a)(2) meet the ACCA elements clause; Texas robbery is a violent felony |
| Whether § 29.02(a) is divisible (separate means) and whether court may identify which subsection Burris was convicted under | Government relied on judgment/indictment and Reyes‑Contreras guidance to identify robbery‑by‑injury as the conviction | Burris argued conviction documents do not clearly specify subsection and thus categorical approach should apply | Held: Need not resolve divisibility; using either categorical or modified‑categorical approach leads to same result — records indicate robbery‑by‑injury |
| Whether "causing bodily injury" under Texas law necessarily involves "use of physical force" (causation vs. use distinction) | Government: Castleman, Voisine, and Reyes‑Contreras eliminate the old separation; knowing or reckless causation constitutes use of force | Burris: Earlier Fifth Circuit precedent (Vargas‑Duran, Villegas‑Hernandez) permitted causation without use; he also argued later cases should not be applied retroactively | Held: Reyes‑Contreras and Voisine (and Castleman) control — causing bodily injury (including reckless causation) constitutes use of physical force under the ACCA |
| Degree of force required (minor contact/bruises) and retroactivity of intervening precedents | Government: Stokeling and Curtis Johnson define "physical force" as force capable of causing physical pain or injury and include force sufficient to overcome resistance; Voisine and Reyes‑Contreras may be applied retroactively | Burris: Texas "bodily injury" could encompass very minor or indirect harms that fall below the ACCA threshold; Voisine/Reyes‑Contreras are substantial changes and should not apply retroactively | Held: Stokeling confirms that even minor force (enough to overcome resistance) qualifies; Texas "bodily injury" cases show force more than mere offensive touching; Voisine and Reyes‑Contreras may be applied retroactively and do not violate due process |
Key Cases Cited
- Curtis Johnson v. United States, 559 U.S. 133 (definition of "physical force" as "violent force" capable of causing physical pain or injury)
- United States v. Castleman, 572 U.S. 157 (knowing or intentional causation of bodily injury involves use of physical force in the MCDV context; common‑law force can be indirect)
- Voisine v. United States, 136 S. Ct. 2272 (reckless conduct can constitute the "use" of physical force)
- United States v. Reyes‑Contreras, 910 F.3d 169 (5th Cir. en banc) (applies Castleman and Voisine beyond MCDV; rejects the causation/use distinction and requirement of bodily contact)
- Stokeling v. United States, 139 S. Ct. 544 (ACCA elements clause includes robbery that requires overcoming a victim's resistance; minor force sufficient when it is capable of causing pain or injury)