UNITED STATES OF AMERICA v. GLNYZO CLARK
No. 17-11079
United States Court of Appeals, Fifth Circuit
September 14, 2022
Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:16-CR-109-1
Before JONES, HO, and WILSON, Circuit Judges.
Glnyzo Clark pleaded guilty to being a felon in possession of a firearm in violation of
I.
A defendant may be sentenced under the ACCA if he or she has at least three prior convictions that each qualify as a “violent felony” or “serious drug offense.”
Four of Clark‘s prior convictions are relevant on appeal: (1) aggravated assault by threat of bodily injury (case no. F-0720695); (2) aggravated assault by causing bodily injury (case no. F-0624885); (3) burglary of a habitation (case No. F-0673371); and (4) possession with intent to distribute a controlled substance (case no. F-0673218).
“This court reviews whether a prior conviction qualifies as an ACCA predicate de novo.” United States v. Prentice, 956 F.3d 295, 298 (5th Cir.), cert. denied, 141 S. Ct. 920 (2020).
We consider each prior conviction in turn.
II.
Aggravated Assault.
We consider two of Clark‘s prior convictions for aggravated assault and find that one of them qualifies as a predicate under the ACCA.
Let‘s begin with aggravated assault by threat of bodily injury. Under
But aggravated assault by bodily injury does not qualify. This offense can be committed with a mens rea of recklessness. See
So for Clark to be sentenced under the ACCA, his convictions for burglary and possession with intent to distribute must both qualify as predicates.
III.
Burglary of a Habitation.
The ACCA‘s definition of “violent felony” explicitly includes generic burglary.
Then several years later, during the pendency of this appeal, our court vacated Herrold I. We determined that
Clark nonetheless maintains that the government should be precluded from relying on Herrold II. He argues the government waived or invited any error in the district court related to his burglary conviction by conceding at the time of sentencing that the conviction did not qualify as a predicate offense. This argument fails.
Invited error is a variety of waiver that “generally evince[s] an intent by the speaker to convince the district court to do something that it would not otherwise have done.” United States v. Lerma, 877 F.3d 628, 632 (5th Cir. 2017) (cleaned up). The government‘s statement amounted to no more than an acknowledgement of the state of the law as it existed at the time. It was neither designed to, nor had the effect of, “convinc[ing] the district court to do something” it would not have already been dutybound to do. Id.
And because we are not bound by the government‘s concession, see, e.g., United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th Cir. 2003), our holding in Herrold II resolves this issue: Clark‘s prior conviction for burglary of a habitation qualifies as a predicate under the ACCA.
IV.
Possession with Intent to Distribute a Controlled Substance.
Clark was convicted under
In United States v. Vickers, we held that the
But that is not so. For one thing, absent an intervening change in the law, “one panel of our court may not overturn another panel‘s decision.” Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). For another, the definition of a “controlled substance offense” under the Sentencing Guidelines—as addressed in Tanksley—differs from that of a “serious drug offense” under the ACCA—as addressed in Vickers and at issue here. Our court acknowledged this critical distinction in Vickers itself, explaining that “an offense could be found to satisfy the ACCA requirements, while the same offense would not be sufficient to trigger an enhancement under the Sentencing Guidelines.” Vickers, 540 F.3d at 366 n.3. And, what‘s more, our court has expressly reaffirmed the holding in Vickers following the Tanksley decision. See Prentice, 956 F.3d at 299–300.
Clark also argues that, even if Tanksley did not effectively overrule Vickers, a recent Supreme Court decision did. In Shular v. United States, the Supreme Court defined “involving” in the ACCA to mean “necessarily requir[ing].” 140 S. Ct. 779, 785 (2020). See also Prentice, 956 F.3d at 299 (“We may assume that Shular defined ‘involving’ in the ACCA to mean ‘necessarily requiring.‘“).
This is indeed a far narrower definition than the “exceedingly broad” one applied by our court in Vickers. 540 F.3d at 365 (defining “involving” to mean “related to or connected with“) (quotations omitted). But our court has expressly rejected Clark‘s argument that Shular consequently abrogated Vickers‘s holding. See Prentice, 956 F.3d at 300. In Prentice, we described how Shular did more than narrow the definition of “involving“—it also “broadens the understanding of a ‘serious drug offense’ by focusing on the underlying conduct.” Id. So while “[t]he precise reasoning of Vickers, i.e., its interpretation of ‘involving,’ differs from that of Shular and seems at odds with Shular‘s focus on the underlying conduct charged in state offenses. ... there is no doubt that the ACCA sentence upheld in Vickers would also be affirmed under Shular.” Id.
Clark attempts to distinguish Prentice on the ground that he challenges the delivery prong of the Texas statute, whereas the Prentice court analyzed the possession-with-intent prong. He claims that the least culpable way to violate the delivery prong is by making a fraudulent offer to sell a controlled substance. In support, he points to some of our reasoning in Vickers: “The intentional offer to sell a controlled substance is the crime; the accused need not have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell.” Vickers, 540 F.3d at 365.
But our court recently considered, and rejected, Clark‘s theory of delivery whereby
Applying our holdings in Vickers and Ochoa-Salgado to the present case, we find that Clark‘s prior conviction for possession with intent to distribute also qualifies as a predicate offense under the ACCA.
* * *
Because we find that three of Clark‘s prior convictions qualify as predicate offenses under the ACCA, we vacate Clark‘s sentence and remand for resentencing.