United States v. Noel Lerma
877 F.3d 628
| 5th Cir. | 2017Background
- Noel Lerma pleaded guilty in 1998 to being a felon in possession of a firearm and agreed to a 15‑year sentence under the ACCA based on at least three prior Texas aggravated robbery convictions.
- After Johnson v. United States invalidated the ACCA residual clause, Lerma sought relief under 28 U.S.C. § 2255, arguing his prior Texas aggravated robbery convictions no longer qualified as "violent felonies."
- The Government conceded Lerma’s ACCA sentence could not rest on the residual clause and that his priors were not the ACCA’s enumerated offenses (burglary, arson, extortion, explosives).
- The sole dispute became whether Texas Penal Code § 29.03 (aggravated robbery) satisfies the ACCA force clause (has as an element the use, attempted use, or threatened use of physical force).
- The district court applied the modified categorical approach, found § 29.03 divisible, determined Lerma’s priors were under § 29.03(a)(2) (robbery + use/exhibition of deadly weapon with threats), and denied § 2255 relief.
- The Fifth Circuit affirmed, holding § 29.03 is divisible and that convictions under § 29.03(a)(2) qualify as ACCA violent felonies because they include the threatened use of violent physical force.
Issues
| Issue | Lerma's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 29.03 is divisible for categorical analysis | § 29.03 is indivisible under Texas law; alternatives are means, not separate elements | § 29.03 sets out alternative elements and is divisible; modified categorical approach applies | Divisible — modified categorical approach permitted |
| Whether Lerma’s record shows which subsection of § 29.03 he was convicted under | Lerma suggested admissions/records do not prove an element meeting the ACCA force clause | Lerma’s plea/commitment documents show convictions under § 29.03(a)(2) (use/exhibit deadly weapon + threats) | Records establish convictions under § 29.03(a)(2) |
| Whether § 29.03(a)(2) has as an element the use/attempted use/threatened use of physical force (ACCA force clause) | Argues Texas law may allow weapon display to be unrelated to the threat, so force element not necessarily present | Pointing/using a deadly weapon to threaten or place in fear constitutes threatened violent force | § 29.03(a)(2) satisfies the ACCA force clause — threatened use of violent force is an element |
| Whether Lerma is entitled to § 2255 relief post‑Johnson/Welch | Johnson/Welch invalidate residual clause but do not affect force clause application | Even after Johnson/Welch, Lerma’s priors qualify under the force clause so no relief | § 2255 motion denied; ACCA enhancement stands |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means; governs divisibility analysis)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as void for vagueness)
- Johnson v. United States, 559 U.S. 133 (2010) (Johnson II — categorical/modified categorical approach guidance)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson announced substantive rule retroactive on collateral review)
- United States v. Ovalle‑Chun, 815 F.3d 222 (5th Cir. 2016) (displaying a deadly weapon to place another in fear constitutes threatened use of force under the ACCA)