United States v. Michael Herrold
883 F.3d 517
5th Cir.2018Background
- Defendant Michael Herrold pled guilty to possession of a firearm by a felon; his PSR listed three prior Texas felonies (including two burglaries under Tex. Penal Code § 30.02) that the government used to trigger an ACCA enhancement.
- The district court (and earlier Fifth Circuit panels) applied circuit precedent and imposed an ACCA-enhanced sentence; the Supreme Court vacated and remanded for reconsideration after Mathis.
- The en banc Fifth Circuit reevaluated whether Texas § 30.02(a)(1) and (a)(3) are "divisible" (so the modified categorical approach applies) or "indivisible" (requiring categorical comparison to generic burglary).
- If indivisible, any portion of the statute broader than the federal generic burglary definition prevents convictions under either subsection from qualifying as ACCA predicates.
- The court concluded (i) §§ 30.02(a)(1) and (a)(3) are indivisible under Texas law and Mathis, and (ii) § 30.02(a)(3) is broader than generic burglary because it permits intent to form after entry. The ACCA enhancement was vacated and the case remanded for resentencing.
Issues
| Issue | Herrold's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Tex. Penal Code § 30.02(a)(1) and (a)(3) are divisible | Martinez/Herrold: Texas law does not require jury unanimity between (a)(1) and (a)(3); they are alternative means (indivisible) | Government: statute’s drafting, subsection differences, and double jeopardy decisions indicate divisibility | Held: Indivisible — Texas courts authorize nonunanimous verdicts between (a)(1) and (a)(3); Mathis requires following those state-law rulings |
| Whether § 30.02(a)(3) corresponds to federal generic burglary | Herrold: (a)(3) allows intent to be formed after entry, lacking contemporaneous intent required by generic burglary, so it is broader and nongeneric | Government: (a)(3) is a "remaining in" variant; intent will necessarily exist while inside, so it fits generic burglary | Held: (a)(3) is nongeneric — it criminalizes entry and subsequent intent formation and thus is broader than Taylor’s generic burglary |
| Whether § 30.02(a)(1) (burglary of a "habitation") is broader because it includes vehicles adapted for overnight accommodation | Herrold: Inclusion of vehicles places (a)(1) outside the generic burglary definition (vehicles are generally excluded) | Government: "Habitation" in Texas targets dwellings (including mobile habitations); many states’ statutes and Model Penal Code support coverage of such vehicles as generic | Held: Court declined to decide — acknowledged powerful arguments on both sides and left the vehicle/habitation question open for future guidance |
| Whether Herrold’s ACCA enhancement stands | Herrold: Because the Texas burglary provisions are indivisible and (a)(3) is nongeneric, his prior Texas burglary convictions cannot qualify as ACCA predicates | Government: Prior convictions under Texas burglary count as ACCA predicates (relying on prior circuit precedent and broader readings) | Held: ACCA enhancement vacated — because §§ 30.02(a)(1) and (a)(3) are indivisible and (a)(3) is nongeneric, Herrold’s Texas burglary convictions cannot serve as ACCA predicates; remanded for resentencing |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility inquiry: look to state law rulings on jury unanimity, text, and other authoritative indicators)
- Taylor v. United States, 495 U.S. 575 (1990) (defines ACCA’s generic burglary: unlawful entry or remaining in a building or structure with intent to commit a crime)
- Shepard v. United States, 544 U.S. 13 (2005) (ACCA burglary applies only to burglaries in buildings/enclosed spaces, not boats or motor vehicles in general)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (distinguishes categorical and modified categorical approaches)
- United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (requires a realistic-probability showing that a state statute will be applied in a nongeneric way before finding it nongeneric)