United States v. Michael Herrold
2016 U.S. App. LEXIS 2502
5th Cir.2016Background
- In 2012 Dallas officers stopped Michael Herrold and discovered a handgun; Herrold, a convicted felon, pled guilty to possession in violation of 18 U.S.C. § 922(g)(1).
- Under the Armed Career Criminal Act (ACCA), Herrold faced a 15-year mandatory minimum due to three prior felonies: (1) possession of LSD with intent to deliver; (2) burglary of a building; and (3) burglary of a habitation (Texas Penal Code § 30.02(a)(1)).
- Herrold argued none of the prior convictions qualified as ACCA predicates: he challenged the burglary-of-building fit, the burglary-of-habitation fit (because Texas defines "habitation" to include certain vehicles), and whether his drug conviction was a "serious drug offense."
- The district court applied the ACCA enhancement and sentenced Herrold to 211 months; he appealed.
- The Fifth Circuit reviewed the ACCA enhancement de novo and affirmed, holding each prior conviction qualified as an ACCA predicate.
Issues
| Issue | Herrold's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Texas burglary of a building (§ 30.02(a)(1)) is generic burglary for ACCA | § 30.02(a)(1) should not be treated as generic burglary | Prior Fifth Circuit precedent treats § 30.02(a)(1) as generic burglary | § 30.02(a)(1) qualifies as generic burglary; conviction counts as ACCA predicate |
| Whether burglary of a habitation (with Texas's broader "habitation" definition including some vehicles) is generic burglary | Inclusion of vehicles expands statute beyond generic burglary | Silva and subsequent Fifth Circuit decisions foreclose that challenge; § 30.02(a)(1) is the provision at issue | Burglary of a habitation under § 30.02(a)(1) qualifies as generic burglary; Silva is binding |
| Whether prior conviction for possession with intent to deliver LSD is a "serious drug offense" under ACCA | The statute's least culpable conduct might be mere intent or offering, which doesn’t "involve" distribution | "Involving" is expansive; possession with intent is squarely within distribution-related offenses Congress meant to cover | Conviction is a "serious drug offense" because possession with intent to distribute involves distribution |
| Whether panel precedent can be disregarded because prior panel did not address the precise argument now raised | Prior decisions are nonbinding dicta if the exact issue wasn’t debated | Circuit rule forbids overruling prior panel decisions absent en banc or Supreme Court contrary authority | Panel precedent (e.g., Silva, Conde-Castaneda) is binding; Herrold’s novel framing does not avoid those holdings |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (defines generic burglary for ACCA analysis)
- United States v. Silva, 957 F.2d 157 (5th Cir. 1992) (holds Texas § 30.02 burglary convictions qualify as generic burglary)
- United States v. Conde-Castaneda, 753 F.3d 172 (5th Cir. 2014) (reaffirms Texas burglary-of-building under § 30.02(a)(1) is generic burglary)
- United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) (interprets "involving" distribution expansively for ACCA serious drug offense analysis)
- United States v. Constante, 544 F.3d 584 (5th Cir. 2008) (clarifies that § 30.02(a)(1) is the provision corresponding to generic burglary)