United States v. Michael Herrold
685 F. App'x 302
| 5th Cir. | 2017Background
- In 2012 Michael Herrold, a convicted felon, was arrested after police saw a handgun in plain view during a traffic stop; he pled guilty to unlawful possession of a firearm under 18 U.S.C. § 922(g)(1).
- Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), Herrold faced a 15-year statutory minimum based on three prior Texas felonies: possession of LSD with intent to deliver, burglary of a habitation, and burglary of a building.
- At sentencing Herrold argued none of his prior convictions qualified as ACCA predicates; the district court rejected that argument and imposed 211 months’ imprisonment.
- The Fifth Circuit originally affirmed; the Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Mathis v. United States.
- On remand Herrold conceded the LSD conviction remained a predicate but contended (1) burglary of a habitation is broader than generic burglary because Texas defines habitation to include recreational vehicles, and (2) Texas Penal Code § 30.02(a) is indivisible after Mathis.
- The Fifth Circuit concluded its prior decision in United States v. Uribe governed and again affirmed the ACCA enhancement and sentence.
Issues
| Issue | Herrold's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Texas burglary of a habitation matches generic burglary for ACCA | Texas’s habitation definition (includes RVs) makes the statute broader than generic burglary | Burglary of a habitation remains a generic-burglary predicate under controlling precedent | Rejected Herrold; habitation conviction qualifies as ACCA predicate |
| Whether § 30.02(a) is divisible after Mathis (categorical/divisibility question) | § 30.02(a) is indivisible, so categorical approach cannot match elements to generic burglary | § 30.02(a) remains divisible; prior precedent controls | Rejected Herrold; § 30.02(a) is divisible under Uribe, so burglary convictions qualify |
Key Cases Cited
- United States v. Herrold, 813 F.3d 595 (5th Cir. 2016) (Fifth Circuit’s original decision affirming ACCA enhancement)
- Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (establishing the categorical/divisibility framework for comparing statutory elements to generic offenses)
- United States v. Uribe, 838 F.3d 667 (5th Cir. 2016) (holding Texas Penal Code § 30.02(a) is divisible post-Mathis and supports burglary predicate status)