United States v. Michael Herrold
941 F.3d 173
5th Cir.2019Background
- Michael Herrold pled guilty in 2014 to being a felon in possession of a firearm; he had three prior 1992 felonies: possession of LSD with intent to deliver (a serious drug offense) and two burglary convictions (a building and a habitation).
- The Armed Career Criminal Act (ACCA) imposes a sentence enhancement if a defendant has three prior qualifying convictions; whether Herrold’s Texas burglary convictions qualify turns on whether Texas Penal Code § 30.02(a) is a “generic” burglary statute under ACCA jurisprudence.
- Procedural history was protracted: district court sentencing, panel affirmance, Supreme Court GVR, Fifth Circuit en banc reversal holding § 30.02(a) indivisible and subsection (a)(3) non-generic (vacating enhancement), remand, Government petition for certiorari, then two Supreme Court decisions (Stitt and Quarles) prompted another GVR and renewed review.
- Key contested legal questions: (1) whether § 30.02(a) is indivisible; (2) whether subsection (a)(3) lacks the specific-intent mens rea required by generic burglary; (3) whether subsection (a)(3) lacks the unlawful-entry/breaking element required by generic burglary; and (4) whether the term “burglary” in ACCA is unconstitutionally vague.
- The Fifth Circuit, applying subsequent Supreme Court decisions (Quarles and Stitt) and state-law precedent (DeVaughn), concluded § 30.02(a) is indivisible and that subsection (a)(3) is consistent with generic burglary; Herrold’s ACCA enhancement was therefore affirmed.
Issues
| Issue | Herrold's Argument | Government's Argument | Held |
|---|---|---|---|
| 1. Is Texas § 30.02(a) divisible or indivisible? | § 30.02(a) lists alternative means and should be treated as divisible. | The statute is indivisible; compare whole statute to generic burglary. | Court: statute is indivisible (reinstating en banc holding). |
| 2. Does § 30.02(a)(3) lack the specific intent to commit another crime (mens rea) required for generic burglary? | (a)(3) permits conviction where the completed/attempted crime may have lesser mens rea (e.g., recklessness), so it is broader than generic burglary. | Texas case law (DeVaughn and subsequent appellate decisions) treat (a)(3) as requiring intent formed sometime during unlawful presence; intent is required. Defendant bears burden to show realistic probability state courts would apply it more broadly. | Court: (a)(3) is generic; intent must form while unlawfully present and Texas precedent supports that reading. |
| 3. Does § 30.02(a)(3) lack an unlawful-entry/breaking element (Descamps issue)? | Because (a)(3) does not expressly require breaking, it is broader than generic burglary. | (a)(3) requires entry "without the effective consent of the owner," which satisfies generic burglary’s unlawful-entry requirement; Descamps targeted statutes that required only entry, not unlawful entry. | Court: (a)(3) satisfies unlawful/unprivileged-entry requirement and is generic. |
| 4. Is the ACCA term "burglary" unconstitutionally vague under Johnson reasoning? | The changing precedential landscape makes "burglary" so indeterminate that it fails fair-notice and invites arbitrary enforcement. | Johnson explicitly preserved the four enumerated offenses; "burglary" remains an enumerated offense with manageable contours; Herrold had fair notice from his prior § 30.02(a)(1) convictions. | Court: "burglary" is not unconstitutionally vague in ACCA; challenge denied. |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (governs divisible vs. indivisible statute analysis for ACCA predicate comparison)
- Quarles v. United States, 139 S. Ct. 1872 (2019) (held intent to commit a crime may form at any time during the continuous event of unlawfully remaining)
- United States v. Stitt, 139 S. Ct. 399 (2018) (held statutes covering vehicles adapted for overnight accommodation can fall within generic burglary)
- Taylor v. United States, 495 U.S. 575 (1990) (defines "generic" burglary as unlawful or unprivileged entry or remaining with intent to commit a crime)
- Descamps v. United States, 570 U.S. 254 (2013) (invalidated a statute that punished mere entry without an unlawful-entry requirement as broader than generic burglary)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause unconstitutionally vague; limited to residual clause, preserved enumerated offenses)
- United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc opinion addressing indivisibility and (a)(3) interpretation; remanded previously)
- United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (explains defendant’s burden to show a realistic probability that state courts would apply statute more broadly)
- Van Cannon v. United States, 890 F.3d 656 (7th Cir. 2018) (concluded Minnesota trespass-plus-crime statute is broader than generic burglary)
- Bonilla v. United States, 687 F.3d 188 (4th Cir. 2012) (interpreted Texas § 30.02(a)(3) as containing requisite intent because commission/attempt of a crime implies intent)