United States v. Juan Castillo-Rivera

218 might seem of our precedents the Govern- One indicates

The record obligations its literal complied ment with more was discussed require something to make certain ple.a agreement under Court, Benchimol; though, The crux of Casil- to the court. statements in- recognized that our decision expressly subject our argument, which las’s “personal reserva- expression volved review, is that the Government plain-error attorneys. Id. tions” the Government’s ar- agreement despite plea breached the — (discussing United 105 S.Ct. ticulating agreed-to recommendation— its Grandinetti, v. 564 F.2d 723 States utility of the recommen- by destroying the 1977)). poor sup- also Grandinetti presentation of evi- through the dation predates both because it port for Casillas effectively testimony dence and Act of 1984 and Sentencing Reform actually entitled Casillas was showed plain its review was not for error. safety-valve reduction. The Government does not disagree. We error here. There was no by disclosing per- agreement a plea breach appeal The is DISMISSED. sentencing factual information to tinent agreement The did not contain plea court. restricting such disclosure.

any provisions

Indeed, does not have a “the Government mute agreement make an to stand

right to factual inaccuracies or to

in the face of factual information from

withhold relevant Block, v. the court.” United States America, UNITED STATES 1981). F.2d Casil- Plaintiff-Appellee agreement supported this disclo- plea las by expressly permitting the obligation sure v. advise the court of Government to district CASTILLO-RIVERA, Juan extent of [Casillas’s] “the nature and activ-. Defendant-Appellant to this case and all other respect

ities with At- activities of which U.S. [Casillas] No. 15-10615 torney sentencing!.]” relevant deems Appeals, United States Court recommended a role re- The Government Fifth Circuit. informed the court of the addi- duction and information. tional relevant Filed March the Govern Casillas asserts plea when it agreement

ment breached the the district court

“begrudgingly informed” provi some

of its recommendation. Absent agreement, there is no plea

sion must

level of enthusiasm Government making a recommendation.

display when Benchimol,

See United States U.S.

453, 455, L.Ed.2d 462 105 S.Ct.

(1985). say, that the Gov though, willWe advocate for

ernment must continue to Here,

acceptance agreement. duty had to balance its with

Government agreement particular to recommend a find the Government satis

sentence. We obligations.

fied both

Brian Portugal, Wesley James Hen- W. drix, Simonton, Leigha Amy Assistant U.S. Attorneys, Office, Attorney’s U.S. North- Texas, Dallas, TX, ern District of Plaintiff-Appellee. Wright,

James Matthew Assistant Fed- Defender, eral Public Federal Public De- Texas, ultimately conclud- The Probation Office Office, District of Northern fender’s (“PSR”) that Beard, Report in its Pre-Sentence Esq., As- ed Amarillo, TX, Jerry Van applied enhancement Defender, the 8-level Federal Public Federal sistant de- previously had been Castillo-Rivera Office, Northern District Defender’s Public court convic- after a state ported Worth, TX, Texas, Brandon Elliott Fort of a Firearm Possession Office, tion for Unlawful Beck, Public Defender’s Federal of Texas Penal by a Felon violation Texas, Lubbock, TX, Northern District (“TPC”) § The district court 46.04. Code Nicholson, Kevin Joel MacIntyre John PSR, and sentenced Castillo- accepted the Office, Defender’s Federal Public Page, to the 8-level enhance- pursuant Rivera TX, Texas, Dallas, for District of Northern appeals, arguing that ment. Castillo-Rivera Defendant-Appellant. substantively § than 46.04 is broader TPC Justice, Miller, for R. Institute Matthew § 922(g)(1), and is therefore 18 U.S.C. Austin, TX, for Amicus Chapter, Texas felony” under the sentenc- “aggravated an Curiae. AFFIRM. ing guidelines. We STEWART, and Judge, Chief Before I JONES, JOLLY, HIGGINBOTHAM, Mexico, born in and Castillo-Rivera was PRADO, DENNIS, CLEMENT, SMITH, shortly after his came to the United States ELROD, SOUTHWICK, OWEN, guilty in Texas pleaded In he birth. HIGGINSON, HAYNES, GRAVES, Possession of Her- state court to Unlawful COSTA, Judges. Circuit oin, year, he jail felony. Later that state court, again pleaded guilty Texas state CLEMENT, EDITH BROWN Circuit Vehicle, of a this time to Unauthorized Use JOLLY, by Judge, joined jail felony. pleaded In he also a state HIGGINBOTHAM, JONES, OWEN, court, time in Texas state guilty third HAYNES, ELROD, Judges, in Circuit by of a Firearm Unlawful Possession full; SOUTHWICK, joining Judge, Circuit shortly deported to Mexico Felon. He was HIGGINSON, 1; except in all for footnote He reentered the United States thereafter. only: in Part III.B Judge, joining Circuit in Texas illegally again and was arrested illegal to the in 2014. This last arrest led convicted of Castillo-Rivera was Juan and conviction at issue reentry charge § reentry 1326. He illegal under 8 U.S.C. here. enhancement of his received an 8-level guilty pleaded After U.S.S.G. Castillo-Rivera pursuant sentence 2L1.2(b)(l)(C), reentry, pro- illegal ... the Probation Office being “previously § for that, The PSR noted be- aggra- ... after for an duced PSR. deported conviction deported from 2L1.2 cause “the defendant was felony.” The notes to Section vated that, subsequent to a convic- the United States explain purposes subsection “[f]or offense, 4 are added (b)(1)(C), felony tion for a levels felony’ has ‘aggravated 2L1.2(b)(l)(D).” § to USSG pursuant term in 8 U.S.C. meaning given 1101(a)(43).” objection, argu- government nu- filed a written That section turn lists ing that Castillo-Rivera’s conviction qualify subsets of offenses that merous felonies, of a Firearm any offense Unlawful Possession aggravated including § 46.04 was “described 922(g)(1),” § in” Felon under TPC “described 922(g)(1), § therefore “con- of a in” 18 U.S.C. possession which is the federal felon felony” under 8 aggravated stitute[d] firearm statute. ll01(a)(43), triggered and thus dant previously was deported, or unlawful pursuant ly “8-level enhancement States, remained the United after ... 2L1.2(b)(l)(C).” U.S.S.G. The Probation a conviction for an aggravated felony,” the agreed, Office and issued an addendum defendant’s Base Offense Level should “in modifying impose the PSR to an 8-level crease 8 levels.” The commentary on enhancement instead of the 4-level en- this section explains that purposes “[f]or initially hancement it (b)(1)(C), recommended. Cas- subsection ‘aggravated felony’ guidelines range tillo-Rivera’s increased meaning given has the term in [8 1101(a)(43) from 24-30 months to 33-41 months as a U.S.C. ].” U.S.S.G. 2L1.2 larger n.3(A). 1101(a)(43) result enhancement. Castillo- cmt. Section provides a objection Rivera filed a written to the ad- lengthy list of subsets of quali crimes that dendum. The district court fy overruled his as aggravated felonies. One such subset objection, accepted the PSR with the ad- includes “offense described in ... sec dendum, and sentenced Castillo-Rivera to tion 922(g)(1) ... relating to firearms of prison. 34 months in 1101(a)(43)(E)(ii). fenses.” 8 U.S.C. 922(g)(1), § U.S.C. the federal felon-in- appealed Castillo-Rivera his sentence statute, possession reads, court, panel a of this arguing that TPC any [i]t shall be unlawful for person ... § nongeneric 46.04 is a statute because it who any of, has been convicted in court substantively broader than 18 U.S.C. a crime punishable by imprisonment for § 922(g)(1), and therefore cannot be con- exceeding a term year ship one ... or aggravated felony sidered an purposes for transport foreign interstate or com- of the sentencing guidelines. panel merce, or possess affecting or com- argument concluded was foreclos- merce, ammunition; any firearm or or to by a previous panel’s holding, explain- ed any receive firearm or ammunition ... that, ing Holder, “[i]n Nieto Hernandez v. shipped which has transported been 46.04(a) squarely § we held that ‘TPC fits foreign interstate of commerce. 1101(a)(43)(E)(ii)’s § within 8 U.S.C. defi- ” nition of ‘aggravated felony’ Castillo-Rivera was United convicted under TPC Castillo-Rivera, 46.04, § States v. which is the felon-in-posses- F.3d Texas (5th 2016) (quoting counterpart 922(g)(1). § Cir. Nieto Hernandez sion to 18 U.S.C. Holder, v. 592 F.3d The Texas statute part, reads relevant 2009)). person Because it concluded that who has “[a] was been convicted of by previous precedent, felony bound panel possesses did commits an offense if he 46.04(a) § not address the merits of Castillo-Rivera’s firearm.” Tex. Penal Ann. Code (West 2009). statutory arguments. granted We rehear- ing en banc in order to do so.1 To determine whether Castillo-Riv quali era’s conviction undér TPC 46.04

II “aggravated felony,” fies as an apply we 2L1.2(b)(1)(C) Section Sentencing “categorical approach, under which we re that, Guidelines only statutory states when a defendant is fer to the definition illegal reentry, convicted of the defen for “[i]f crime which was con- [defendant] Upon granting petition panel dispositive Castillo-Rivera’s for that is in a future case. We banc, rehearing requested briefing here, en we re- do not reach this issue as it is not garding proper application of this circuit's necessary disposition to our of Castillo-Riv- party rule of orderliness in cases where a era’s case on the merits. explicit made an concession before a 183, 193, 127 S.Ct. 166 L.Ed.2d legisla- U.S. and ask whether ... victed (2007). argues A defendant who necessarily fits with- offense tively-defined nongeneric simply cannot 1101(a)(43)’s] state statute definition of [8 of statuto plausible interpretations rest on v. felony.” Larin-Ulloa aggravated an also ry made in a vacuum. He must 2006). text Gonzales, 456, 463 probability, “a realistic not a theoret show Here, the of- asking means whether apply that the State would possibility, ical is “de- outlined in TPC 46.04 fense that falls outside the its statute to conduct § 922(g)(1). in” Castillo- scribed the crime.” Id. The generic definition of not, because the argues that it is Rivera explained that estab Supreme Court has “felony” and “firearm” for definitions of an lishing probability is not ex realistic are broader of the Texas statute purposes Rather, guessing. “[t]o ercise in educated counterparts. We ad- than their federal offender, probability, show realistic [a] arguments in turn. each of these dress course, may show that the statute was But he must at least applied so his case. Ill his own case or other cases in point to Felony A. apply the state courts in did which fact special (nongeneric) in the manner statute 46.04, of TPC “fel purposes For argues.” (emphases he Id. add which “(1) offense that ony” is defined — Holder, ed); see also Moncrieffe law of this state as a designated by a -, 1678, 1693, 133 S.Ct. U.S. (2) an felony; contains all the elements of (2013) (reiterating that defen L.Ed.2d 727 designated by a law of this state as offense that the State dants “have to demonstrate (3) by felony; punishable is confine offense” in actually prosecutes the relevant penitentia in a year ment for one or more manner). nongeneric 46.04(f) (West §Ann. ry.” Tex. Penal Code Thus, argu- in on his prevail order to 2009). contrast, § 922(g)(1), 18 U.S.C. “felony” as used in ment that the term of a firearm unlawful possession makes the § 46.04 includes crimes that would TPC punishable those convicted of “a crime for not be included under 18 U.S.C. exceeding for a one by imprisonment term simply § cannot 922(g)(1), Castillo-Rivera argues that the term year.” Castillo-Rivera may be includ- point to certain crimes § “felony” as used in TPC 46.04 is broad must also ed in one but not the other. He more crimes—than Sec er —i.e. includes actually ap- that Texas courts have show contends, example, for 922(g)(1). tion He way. § in this He has plied TPC 46.04 punishable exactly that are that crimes indeed, he makes no at- failed to do so— pur felonies for year one are considered Instead, numerous tempt. he describes 46.04, § not for 18 poses of TPC but felonies crimes that could be considered And, 922(g)(1). § the text that are not under the Texas statute but § includes as felonies crimes of TPC 46.04 law, suggesting felonies under federal even qualify that would not under its federal “[tjhere many” such probably are too it cannot “described in” counterpart, be telling It is offenses to list his brief. 922(g)(1). section that, many opportu- evident despite these generic nities, fed comparison point But the does not Castillo-Rivera actually allegedly nongeneric eral statutes to state case which Texas courts felon to apply not an invitation to TPC 46.04’sdefinition of counterparts applied is not also covered imagination to a state statute’s lan a defendant who could be “legal Duenas-Alvarez, 922(g)(1). guage.” Gonzales that, maintains possession dissent because the of a firearm by someone con- plainly Texas statute’s definition of felon is victed of a crime that punishable by less counterpart, broader than its federal Cas- than a year-and-a-day imprisonment. required point tillo-Rivera is not to an Whether Maine courts actually apply its applied actual case which Texas courts felon-in-possession statute such a man- the Texas statute’s definition of felon to is, dissent, ner for the irrelevant. Or con- capture those not included under Section Maryland, sider which prohibits person 922(g)(1). position That comply does not from possessing a firearm if he or she “has with the Court’s directive in Due- been convicted of a disqualifying crime.” exception nas-Alvarez. There is no to the Ann., Md. Code Safety, § Pub. 5-133. A requirement actual case articulated in “disqualifying crime” includes “a violation Duenas-Alvarez where a court concludes a felony.” Ann., classified as a Md. Code Indeed, state statute is broader on its face. Safety, Pub. 5-101. In Maryland, child emphasized the Court Duenas-Alvarez abduction in certain felony instances is a that a “at defendant must least” to punishable by up year prison. to a Md. implication being actual state case—the Ann., Law, Family Code Goodbye 9-307. pointing may even to such a case not Maryland. And what of many states Duenas-Alvarez, be 549 U.S. satisfactory. “felony” whose definition of for purposes of 18B, 193, short, In 127 S.Ct. 815. without firearm possession includes persons who law, supporting interpreting state case were convicted under of any laws state statute’s text alone simply state? If Texas’s statute non-generic, so enough necessary to establish the “realistic Alaska,- are all of long, those as well. So probability.” Id. California, Colorado, Illinois, Georgia, It is noting practical worth also im- Iowa, Kentucky, Nevada, Hampshire, New plications of Castillo-Rivera’s contention. Mexico, Indeed, Virginia. New by our may Although seem narrow at first count, 37 states’ felon-in-possession stat- (and dissent’s) glance, Castillo-Rivera’s arguably utes would be at least rendered argument felon-in-posses- the Texas non-generic applied if we Castillo-Rivera’s sion statute in nongeneric is is fact breath- logic.2 It strains credulity suggest to that in taking scope. Castillo-Rivera maintains Congress’ such a result would reflect in- that the Texas statute is broader because in enacting 922(g)(1). tent within felony includes its definition of precedents Our own in agree are also punishable crimes that are for less than a that, ment to successfully argue that a year-and-a-day. But such a ruling would state nongeneric, statute is a defendant render dozens of states’ felon-in-possession provide must actual cases where state statute, non-generic. statutes Maine’s for applied courts have the statute in that example, prohibits possession by anyone way. The case United States v. Carrasco convicted of crime ... punisha- “[a] (5th Tercero, 2014) 745 F.3d 192 Cir. by imprisonment ble for a term of one particularly instructive because it has im year or more.” Me. Stat. tit. 15 393. And portant similarities to our own. Like Cas Maine, Touching Unlawful Sexual tillo-Rivera, pleaded Carrasco-Tercero punishable by up year county jail. to a guilty illegal reentry. to His PSR also rec Applying Me. Stat. tit. 17-A 260. enhancement, dissent’s ommended an in his case logic, non-ge- Maine’s statute is because, face, neric on its it criminalizes because he had been convicted New these, 2. a Appendix opinion. For list of all of see the attached to this 224 its federal criminalizing some acts that assault with a dead aggravated

Mexico for not, a crime the defen- generic counterpart was considered would ly weapon, which to U.S.S.G. pursuant “demonstrate[d] th[e] violence dant had not 2L1.2(b)(l)(A)(ii). Castillo-Rivera, Like significant practical as a mat- difference is state statute was argued that the he too he not identified even “ha[d] ter” because than its federal coun on its face broader ... would have been one case [state] could not be consid terpart, and therefore differently.” Id. at 200. We have decided sentencing for ered a crime of violence many other cases. point reiterated this panel quoting A unanimous purposes.3 See, Sanchez, — 667 e.g., United States v. rejected rasco-T Car (defendant (5th 2012) Duenas-Alvarez — F.3d Cir. contention, concluding that his ercero’s though an actual case even had to the New Mexico from the text of argument terms” of the state statute the “literal unavailing he “failed was statute arguably from their federal were different identify single case where a New a equivalents); v. Garcia-Fi- United States a court convicted defendant ha[d] Mexico (5th 2014) gueroa, 753 F.3d Cir. interpretation proposed ... on” his based Cordoba-Posos, (same); States v. United language. Id. of the statute’s (5th 2008) Fed.Appx. 656-57 Cir. is no outlier. In Unit Carrasco-Tercero (a statements to the effect State Senator’s (5th Teran-Salas, v. 767 F.3d 453 ed States broadly more swept that a state statute that, 2014), we held al example, Cir. counterpart than its federal was “insuffi- had though “describe[d] the defendant probability” a realistic where cient to show Texas stat possibility [a] theoretical “produce single defendant could that would not ute conduct eriminalize[d] actually a state court had case” which offence, his qualify” generic as a federal such); applied the state law as United he argument failed nonetheless because Lara-Martinez, States v. probability” a “realistic could not establish 2016) (defendant satisfy did not anyone prosecuted that he or else was requirement actual case where he interpretation. nongeneric Texas under the state pointed applying to a case different Cerón, In Id. at 460. United States statutory provision).4 2014), rejected again we F.3d multiple oppor- Castillo-Rivera has had hypothetical” “clever be defendant’s a case in which a Texas present tunities showing he made “no that [state] cause § 46.04’s definition of applied court TPC actually apply the statute to [state] courts who could not have felon to defendant ... conduct.” Id. at 229. hypothetical a felon under 18 U.S.C. been considered Hernandez-Galvan, In United States v. (5th 2011) § not do in the court 922(g)(1). He did so 632 F.3d 192 Cir. we concluded below, panel on that, he did before although question the state statute briefing appeal, as and he has not in his or at language interpreted had that could be Indeed, noting argument that a number of the Carrasco-Tercero's was 4. It is worth Castillo-Rivera’s, stronger majority even than here were in the in one or dissenters pointed persuasive precedent a he from holding cases in our circuit more of listed holding explicitly circuit that the New sister must to an actual state that a defendant language "obstruct[ed] statute's broad Mexico nongeneric applying a state in a case statute aggravated any argument New Mexico that manner, may where statute be even the state (deadly weapon) qualifies a assault as crime plausibly interpreted on face. as broader its Carrasco-Tercero, 745 F.3d at of violence.” Rede-Mendez, (quoting v. 197 United States 2012)). 680 F.3d Cir. argument oral before the en banc court. firearm to an gun include air apply- when § argument His that ing § TPC 46.04’s defini- pointing TPC 46.04 to an actual tion of felon is broader than Section case where a Texas court did so. He at- 922(g)(1)therefore fails. tempts satisfy burden pointing

to two Texas cases. Neither is availing. B. Firearm first, State, Mosley v. 545 S.W.2d 46.04, § purposes For of TPC “firearm” (Tex. 1976), App. Crim. easily dis- made, “any designed, is defined as device case, posed of. In that the defendant was adapted expel projectile or a through a convicted of aggravated assault after by using energy generated barrel by pointing an gun unloaded B.B. at his victim explosion burning an or any substance or in a parking lot and kill threatening to her. readily device convertible to that use.” Id. at appealed conviction, 145. He his 46.01(3) (West § Tex. Penal Code Ann. arguing gun that the B.B. was not a “dead- 2009). Federal law defines “firearm” for' ly weapon” required by as ag- the Texas “(A) purposes 922(g)(1) of 18 U.S.C. as gravated assault In opinion statute. Id. any weapon (including gun) a starter which on Texas’s motion for rehearing, the court designed may will or is to or readily be wrote, holding “[i]n that the device in- expel projectile converted to by the ac- volved did not constitute a firearm ... (B) explosive; tion of an the frame or opinion attempt did not to exclude all (C) any receiver of weapon; any such fire- types guns of air pistols or from the defini- (D) silences; arm muffler or firearm or tion of a firearm. We do not reach that 921(a)(3). destructive device.” 18 U.S.C. question in this (emphasis case.” Id. at 146 supposed Castillo-Rivera homes on one added). Indeed, the court reaffirmed its distinction between the two definitions: un- holding Mosley’s gun B.B. was not a der the Texas definition a firearm expels firearm. This case help therefore offers no projectile by “explosion burning sub- to Castillo-Rivera. stance,” while under the federal definition The second high- case Castillo-Rivera expels projective by a firearm “explo- lights admittedly closer to the mark. In that, argues although textually sive.” He State, 05-96-00832-CR, Boston v. No. similar, the Texas definition includes (Tex. App. WL 19938 Jan. —Dallas gun” “air weapon expels projec- —a 1998), aggravat- Boston was convicted for using compressed tiles air—while the fed- ed peace assault of a officer under TPC eral definition does not. 22.02(a)(2) pointing after an air rifle at a

We note at the outset that law officer. appealed Castillo- enforcement Boston gun Rivera is correct that an air challenged is not his conviction and the sufficien- See, evidence, firearm within cy the federal definition. air arguing United, Housholder, e.g., States v. alleged 664 Fed. rifle was not a “firearm” as in his 2016) Appx. (noting indictment. Id. at *1. A firearms at expert firearm”); airgun “an ... is not a Boston’s trial air United testified that rifle (1st Crooker, qualified States firearm under the definition 2010) (holding that the federal definition of in TPC 46.01—the same definition “self-evidently firearm does not Explain- include an issue in Castillo-Rivera’s case. Id. operates by air rifle ... which compressed ing that it was bound the trial court’s air”). above, however, As crediting expert’s testimony Castillo-Rivera on the issue, probability must also establish a realistic firearm in the court Boston found apply that Texas would expert’s testimony its definition of that the was “sufficient purposes § firearm for 46’s definition of beyond to find a reason- the trial court for 46 itself. chapter rifle fell within the that the air able doubt chapter in 46.” Id. at of ‘firearm’ definition contends that TPC Castillo-Rivera that, argues because *2. Castillo-Rivera in it nongeneric part § is because 46.04 chapter 46’s definition interpreted Boston gun of an air where possession criminalizes rifle, an air to include of “firearm” does not. Boston counterpart its federal not have been con- Boston could necessary realistic does not establish the was crime with which he victed of the apply that Texas courts would probability of that defini- charged application absent § man- nongeneric 46.04 in this TPC itself tion, proba- establishes a realistic Boston ner, not deal with TPC because Boston did § 46.04 bility apply Texas would TPC § at all. The Court has 46.04 guns. air burden, to include that, carry a de- instructed to his “in point must to a case which the fendant first that Boston did not hold We note in apply in fact the statute state courts did a matter of law that the Texas definition (nongeneric) manner for which special guns. air The court made firearm includes Duenas-Alvarez, 549 U.S. at argues.” he sufficiency-of-the-evidence determina- added); (emphasis see S.Ct. only, applied very deferential tion (defen- Moncrieffe, at 1693 also 133 S.Ct. in appropriate of review such standards “the dant must to a case which such, not have the case. As the court “[did] actually prosecute[d] the relevant State of- probity” of the power to re-evaluate fashion) nongeneric (emphasis in a fense” *2. Im- expert’s testimony. Id. at firearms added). such a Boston is not case. Castillo- therefore, not de- portantly, the court did argument regarding Rivera’s the definition a firearm under TPC gun cide if an air must therefore fail as well. of firearm 46.01; § district only it decided crediting given fire- court did not err IV testimony that effect. expert’s arms has not estab- Because Castillo-Rivera was Perhaps importantly, probability more Boston that Texas lished realistic Indeed, § it felon-in-possession actually apply case. would TPC 46.04 not courts broadly 922(g)(1), 46 whatso- than 18 nothing had to do with TPC more that TPC 46.04 is not an charged argument ever. Boston was and convicted his felony purposes of the sen- entirely chapter aggravated under an different of the 22.02(a)(2). en- tencing guidelines fails. The 8-level The court Texas code—TPC correctly distinction, hancement to his sentence was writ- highlighted Boston Judgment AFFIRMED. applied. initially appellant was ing, note “[w]e assault under charged aggravated with HIGGINBOTHAM, PATRICK E. text, By code. chapter penal Judge, concurring: Circuit in section 46.01 the definition of ‘firearm’ weapons offenses enu- only applies to the explain my views separately I write (internal First, cita- chapter merated in 46.” Id. many opinions on matters. two omitted). to ex- conflicting tions The court went on and re- produced have several simply using chapter 46’s plain markably understandings that was distinct Su- understanding respect, I precedent. definition “to assist With preme Court writings ‘deadly weapon’ complexity in the context of other more these find Thus, my eyes, presented did than in the case. To offenses.” Id. the court Boston overarching objective here is interpret apply TPC the purport equality sentencing. achieve federal To controlling. It differs body from that of end, criminal jurisprudence when records are con- respect one difference —a sentencing, sidered in federal captures and we look which orderly pro- need for convictions, assign to state our effort among is to cess three-judge panels is, —that the same values to the same criminal con- panel may one not overrule A another. Hence, duct. we not accept panel’s must labels of application of the stare decisis rule example burglary crimes—for always of- reviewable an en pro- banc —when travelling ten the offenses out of that ceeding, label inevitably decisions interlaced vary greatly in the criminal being conduct with the merits of the issues. We have one punished.1 Responding reality, to this constraint, other self-imposed requir- Supreme Court has defined a federal of- ing pre-circulation opinions that would through fense filter which these state con- create conflicts with other circuits. While pass. example, victions must For largely we do not hortatory, its disregard equally impose wish to the same levels of punish- reviewable the en banc If court. ment in a objectives federal statute for a defendant here are reduce the number engaged shoplifting courts, defendant of en banc the path suggested is engaged felony in the of burglary. Re- perverse. Another observation that Yogi turning to these basic I principles, am broke, did not make “if is that it ain’t don’t can, will, confident the Court in future fix it.” to an compelling

cases move even more OWEN, PRISCILLA R. Judge, Circuit analysis. In addition to the thoughtful dis- joined by JOLLY, E. GRADY Circuit Dennis, Judge sent of writings other Judge, concurring: strongly suggest we are on such a path. As forward, join I Judge we move Clement’s I concur in en opinion. banc court’s I opinion stabilizing way as a station. For separately write because there is an addi- reasons, Judge these I concur in Clement’s tional, at equally compelling, least basis for opinion for the Court. concluding prior that Castillo-Rivera’s con- viction in 2009 under Texas Penal Code issue,

Regarding the rule of orderliness 31.07(b) section for unauthorized use of a Judge Smith’s dissent proposes that this motor vehicle constitutes “an offense de- Court set off on an unwise course that scribed in” 18 922(g)(1).1 That inevitably would lead to confusion on basis is that Castillo-Rivera’s convic- questions threshold about interpret how to (1) 46.04(f), tion comes within subsection precedent. is, though Well-intentioned predicate and all offenses defined sub- respect, and with I must register disagree- (1) 46.04(f) section in” are “described go ment and caution. To forward and 46.04(f) § 922(g)(1), and section jurisprudence reduce the “divisi- stare decisis to ble.” by ease-by-case a detailed code confected This is clear when Texas law and the apart jurisprudence regarding determination of rules from our Court’s well- developed principles of “divisible” stare decisis would statutes are examined. disorder, serve not order. “felony,” term as used in the Texas statute, Our “rule” of simply felon-in-possession orderliness is is defined (f). apply itself, we are to stare decisis determin- that statute in subsection Section ing panel whether an earlier opinion is 46.04 states: 1101(a)(43)(E). Bernel-Aveja, 1. See United States v. F.3d 2016) J., (Higginbotham, concurring judgment). in the 46.04(f) categorically (a) 1 of are has been convicted of subsection person A who by for “punishable imprisonment an offense if he felony a commits offenses exceeding year.”4 conviction An offense possesses [after a firearm: a term one 46.04(f)(1) parameters] certain one that “is within under is subsection a by a law of this state as designated law, least seri- felony.”5 Texas Under (f) section, an purposes of this For the felonies,”6 jail ous felonies are “state state, of this under the laws offense jail a term of confinement for state state, or the United States another years or felony is “not more than two less is, except provided Subsection every of- days.”7 Consequently, than 180 if, it felony at the time is (g), designated “felony” as a expressly fense committed, the offense: potential carries a sen- by a Texas statute (1) by a law of this state designated is up years of at least to two of confine- tence felony; aas dispute ment. does not this. Castillo-Rivera (2) all the elements of an of- contains that Texas Penal argues Castillo-Rivera by a law of designated fense 46.04(f) overly is broad and is Code section felony; state as “divisible,” meaning of Su- within (3) for punishable by confinement is including Mathis v. preme Court decisions penitentia- in a year one or more asserts that United States.8 He therefore ry.2 judicial docu- courts cannot consider the that if a were con- agree All defendant pertaining prior ments to his conviction in of an offense described subsection victed if it was for an offense that comes see 46.04(f) by not punishable that was (1), rather than subsec- within subsection confinement, then year more than one (3). rejected. argument should be tion This would not be “an offense de- offense 46.04(f) in Each of the three subsections felon-in-possession- scribed in” the federal offenses are are distinct definitions what statute, 922(g)(1).3 § of-a-firearm purposes for “felon[ies]” considered That is the term of confinement felon-in-possession Texas statute. While 46.04(f)(3), qualifying an under offense undisputed that not all offenses de- year for one or more “confinement (3) are described scribed subsection penitentiary,” can be less than the term § 922(g)(1), within all offenses described confinement for an offense described (1) are described within im- subsection “punishable by § 922(g)(1), which § each of the sub- exceeding 922(g)(1). Importantly, prisonment for a term one 46.04(f) However, only legal defi- described in sections contains year.” all offenses felonies; (West). (1) capital § 2. Tex. Penal Code Ann. 46.04 (2) degree; the first felonies of 1101(a)(43)(E) (referencing § See 8 U.S.C. 3. (3) degree; felonies of the second 922(g)). § '(cid:127)'an described in” 18 U.S.C. offense (4) degree; the third felonies of (5) jail felonies. state 922(g)(1). 4. 18 U.S.C (b) designated felony An in this offense category specification as to code without 46.04(f)(1) (West). 5. Tex. Penal Code Ann. jail felony. is a state 6. See id. 12.04: 12.35(a). 7. Id. § 12.04. CLASSIFICATIONOF FELONIES (a) according are classified Felonies - U.S. -, S.Ct. 195 L.Ed.2d the offense into the relative seriousness of (2016). categories: five prior nitions. conviction Whether criminal conviction is not an element (1) coming offense within subsection of of a offense in the sense that we often view 46.04(f) question is a of law decided the term “element.” For example, felon-in-posses- (ACCA)12 Texas courts which the Armed Career Criminal Act prosecuted.9 sion-of-a-fírearm is In the eases which the concept of whether the case, a court can present examine the statute of conviction is “divisible” has been predicate developed, including Mathis, offense for the Texas felon-in- Supreme the possession-of-a-fírearm conviction and de- Court has held that the fact of whether a termine, law, prior as a matter of whether that conviction exists is not a question for predicate offense came within subsection finder of fact.13 46.04(f)(1). It should also be borne in mind that

Although questionable it is person whether the whether a is a inquiry felon is an divisibility fully Mathis inquiry applies Being to a about status. denominated a felon statute such Penal as Texas Code section under the law is not an act or omission (actus reus) 46.04(f), that inquiry leads to the conclu- accompanied by a state of 46.04(f) (mens rea). sion that section is “divisible.” The mind Nor is the status of explains decision Mathis that when con- “felon” a committing “means” of another sidering Congress if intended pre-existing certain of- crime. It is a legal designa- Supreme fenses constitute an enumerated or de- tion. The divisibility Court’s offense, “Congress only analysis scribed referred has focused distinguishing on “el- (in terminology) generic their usual or our ements” of an offense from “means” of committing versions—not to all variants of the of- an offense a when statute of employ “categorical “alternatively phrased.”14 fenses.” Courts conviction is solely analysis which That approach,” employed on has not been “focus[es] alternatives, resolving statutory whether elements of the crime of con- whether sufficiently match only question viction the elements of each of which concern a law, generic” The a prior [the] crime.11 existence of are divisible. Whether a convie- State, 262, review.”); subject 'legal sufficiency’ 9. See Lucio v. 128 S.W.3d to a Jor- (Tex. State, 01-14-00721-CR, App. pet.) [1st Dist.] no dan v. No. 2015 WL —Houston ("The presented by appeal issue is wheth- (Tex. App.' at *7 [1st —-Houston required prove er the State was that the (mem. .2015, pet.) op., Dist.] Nov. no not offense, i.e., aggravating indecency with a ("Whether designated publication) for an out- child, felony. awas We hold that the State felony pur- a of-state offense constitutes required put prove was not on evidence to poses question enhancement a of law indecency felony. with a child is a It is novo.”). de that we review appellant true that whether the committed the indecency ques- crime of with a child was a Mathis, 10. at 136 S.Ct. 2248. jury. Accordingly, jury fact tion of for the charged indecency was on elements of 11. Id. However, with a child. whether crime such issue, felony presents legal a a not a fact 924(e). 12. 18 U.S.C. Therefore, question. judge correctly the trial jury indecency instructed the with a child Mathis, (“This 136 S.Ct. Court has felony, submitting is a rather than that issue jury, judge, only may held that a a not determination.”); jury to the for a factual see penalty, find facts that increase a maximum 10-04-00278-CR, State, also Andika v. No. simple prior except for the fact of a convic- (Tex. App. 2005 WL at *4 —Waco tion.”). 22, 2005, (mem. pet.) desig- op., June no ("Whether publication) prior nated for a con- law; felony question 14. Id. viction is is a it is not at 2249. ”17 a conviction.’ Im- prove that comes within sub- must to sustain tion is an offense 46.04(f) a tri- portantly, of the Texas Mathis tells us that “[a]t section of section al,” question jury of a law. “are must find purely Penal Code is elements what beyond doubt to convict the a reasonable long recognized has The Court defendant,” plea hearing, they and “at a prior con- the statute under which necessarily are what the defendant admits may contain alterna- viction obtained was pleads guilty.”18 questions when he noted, divisibility inquiry re- tives. As jury regarding fact for a Texas an an alternative is element solves whether in felon-in-possession-of-a-fire- conviction committing a means of of an offense or prosecution arm are whether there was example, the decision in offense. For fact a conviction and the prior whether determining explains Mathis currently in the dock was the defendant divisible, a is the “thresh- whether statute prior proceed- defendant convicted means,” and inquiry” old is “elements or ing.19 typically proven by This is the intro- may “answer the state court decisions copy judgment a of the duction of certified jury agree” question.”15 If “a need not on prior identifying the case and evidence matter, then that factual matter a factual fingerprints.20 dichotomy such as This be- an element of the offense but a is not jury respective tween the roles of committing of the offense.16 The means “ predi- says judge regarding the existence of a Mathis decision are ‘[e]lements’ similar, if not legal of a crime’s cate offense is identical to parts’, the ‘constituent things ‘prosecution the that in federal courts.21Once the existence definition—the (3) tify person, the defendant as that or docu- 15. Id. at 2256. (such mentary proof judgment) as a that con- 16. Id. tains sufficient information to establish both prior a and the the existence of conviction at 2248 17. Id. Dictionary (quoting Black's Law identity person as the convict- defendant’s 2014)). (10th ed. State, ed.”) (footnotes omitted); Beck v. 1986) ("We (Tex. App. Crim. S.W.2d 18. Id. consistently prior have held that a conviction alleged a a for enhancement or conviction as State, 19. See Flowers v. 220 S.W.3d part prior criminal record of a defendant 2007) (Tex. (“To App. Crim. establish that a may copies ... be established certified of a prior a defendant has been convicted of of- judgment and a and authenticated sentence fense, prove beyond the State must a reason- copies Department of the Texas of Correction exists, (1) prior able doubt that conviction including fingerprints, supported by records (2) the is linked to that defendant convic- expert testimony identifying them as identical tion.”). defendant.”). prints with known ("No specific 20. See id. at document 921-22 See, e.g., Jury Fifth Circuit Pattern Instruc- proof required prove or mode of [the 243.D, (Criminal Cases) (2015) simply legal parameters sets forth the that The reason in first articulated Mathis is determine whether a prior conviction that the text of the ACCA focuses on comes within that statute’s definition of a ‘the “whether defendant had been convict- felony. falling ed of crimes certain catego- within ries,’ and not about what the defendant disjunctive The in listings Texas Penal actually had done.”22 Whether defendant 46.04(f) Code section are not of the same meaning is a felon within the of one of the ilk as those that have been the focus of the ' 46.04(f) only subsections of focuses on Supreme divisibility analyses. Court’s But

whether a defendant has been convicted of given by Supreme the reasons the Court falling categories, crimes within certain not for preventing examining a court the from noted, actually what the defendant did. As underpinnings prior sup- of a conviction courts, jury, partic- not a decide whether a foreclose, port, application rather than “felony” ular offense is a within the mean- n the categorical approach modified to sec- 46.04(f)’s ing of one or more section 46.04(f). court, matter, legal A as a tion definitions. may prior determine whether a conviction (1) 46.04(f) given by

The second reason the Su- comes within subsection transgressing Court Sixth Amendment without the reasons the preme implicated judge, categorical approach applied. Uniformity concerns would if a be vindicated, subverted, jury, rather than a are not were find facts and fairness penalty.23 by determining increased a maximum if a The Su- conviction comes (1). 46.04(f) preme explained judge’s Court within subsection Section role, “consistent with Sixth Amend- divisible. Castillo-Rivera’s conviction ment,” crime, “felony” meaning is to “determine what with 2009 was for a within the elements, 46.04(f)(1), what the defendant was convict- of and that conviction is cate- Mathis, (quoting Taylor 136 S.Ct. at 2252 Id. 22. 24. States, 575, 600, v. United 495 U.S. S.Ct. (1990)). 109 L.Ed.2d 607 Id. at 2253. 25. Id. reasoned, panel contrary, in” to the that was offense “described

gorically Hernan- holding “bound” Nieto 922(g)(1). what it de- dez and could address argu- to Castillo-Rivera’s regard With argu- as Castillo-Rivera’s “new scribed of a firearm ment that the definition ments.” 46.04 is broader Texas Penal.Code section definition, fully agree I 922(g)’s than petition rehearing In resourceful his reasoning and the en banc court’s with banc, Public Defender ex- en the Federal disposition. ... that the plained that “the Panel held issues that rule of orderliness extends to SMITH, Judge, E. Circuit JERRY a by prior panel. were not considered This DENNIS, PRADO, dissenting, joined by ... is consistent with some of this Court’s HIGGINSON, COSTA, GRAVES, ... with others. decisions but inconsistent full; joined except Judges, in Circuit It is also inconsistent with the SOUTHWICK, by2 Circuit for footnote precedent precedent.” about More Court’s Judge: Defender precisely, Federal Public legend Yogi The baseball Berra is cred- way: procedural framed the issue unintentionally with the humorous ited argu- prior opinion foreclose “[D]oes statement, you come to a fork “When prior pro- ments that were waived road, By refusing, take it.”1 in terse ceeding but advanced in the current case?” orderliness, footnote, to address the rule of majority banc declines to follow this en arguments The reference to “waived” sage respectfully advice. I dissent.2 Yogi’s stems from the fact that Nieto Hernan- dez, explicitly defendant “coneede[d] opinion,3 paragraphs long, two panel 46.04(a) that his offense under ... fits Holder, Nieto Hernandez v. relied on 1101(a)(43)(E)(ii)’s within 8 U.S.C. defi- 2009), which held F.3d ”6 ‘aggravated felony.’ Nieto Her- 46.04(a) nition that Section of the Texas Penal nandez, n.6. Federal 592 F.3d The “fits within Code 1101(a)(43)(E)(ii)’s rightly Public Defender reasoned that ‘aggra- definition of ” privity is not in with “Mr. Castillo-Rivera felony.’ “urge[d] vated Castillo-Rivera Hernandez, Mr. Nieto and there is no rea- his holding does not foreclose why to the same arguments they because were son he should be held overbreadth predecessor not considered in Nieto Hernandez.”4 The waiver that his selected.”7 Castillo-Rivera, mistakenly saying to Berra. 3. United States v. 836 F.3d 1. The attributed https://en.wikiquote.org/wiki/Yogi_Berra. 2016). See misunderstanding evokes recol- That common "Yogiism”. Yogi lection See The of'a real 4. Id. at 464. really say everything I book: I didn't said! (Workman 1997), Publishing p. 9. 5. Id. at 465. join agree Judge 2. I with Dennis’s com- element, Except for an interstate-commerce merits, pelling on the which shows dissent not relevant here. why judgment be va- of sentence should understood, Properly cated. Mr. Castillo-Riv- petition explained, 7. The en banc further felon-in-possession Texas conviction is era’s felony diverge aggravated purposes of the This Court’s decisions when consid- sentencing guidelines. separate ering arguments were never I write this or issues that by panel. consequences presented the earlier dissent to examine the of the addressed by rulings majority's present-day judges failure to address the rule of order- Are bound past? were never made in the Said another liness. granted The court rehearing by en banc8 panels past, stated can never be following and sent the notice: changed scope or its refined or reconciled. panel No can revisit it because of (guess Although attorneys, in their briefs what?) the rule of orderliness. And—so the oral argument, are free to address argument goes en banc court should case, any matters raised the court —the so, is, not do technically, unnec- principally interested the two issues essary to the case at hand. Sort of a presented in petition for rehearing “Catch 22.”9 (1) banc, to-wit, en whether this court’s orderliness, understood, properly rule of logic, That albeit handy in the interest of should extend to issues that were not expediency, undermines the supervisory (2) considered a prior panel and responsibility of a federal court of appeals. whether the crime defined in Texas Pe- level, panel At the the court superviso- has 46.04(a) nal Code fits within the defi- ry authority courts, over the district “aggravated felony” nition of in 8 U.S.C. lawyers court, as officers of the and the (a)(43)(E)(ii). § 1101 In addition to the party litigants. It follows that at the en briefs of the parties, the court welcomes level, court, banc justifi- if no other qualified submissions from amici curiae cation than necessity, irregu- must address regarding either or both of these issues. orderliness, larities in the rule of as the en banc carefully Fourth Circuit parties fully explained: The questions addressed both briefs, in their en banc and the Institute question of the binding effect of a brief as amicus for Justice submitted panel opinion subsequent on panels is of curiae, helpfully discussing the rule of or- importance utmost operation to the derliness from the civil side of the docket. this court and development law in this circuit. Accordingly, before fully joined,

The issue is therefore but considering case], the merits of [this we majority the en banc Yogi’s declines advice first this important procedural address to take the fork the road. The excuse is issue. here, terse: “We do not reach this issue necessary

it is not disposition to our States, McMellon v. United Castillo-Rivera’s case on the merits.” 2004) (en banc) (footnote omitted). especially That is so where the

Strictly speaking, that is true. The rule applied rule is in a manner so extreme as panels of orderliness binds not to overrule parties to bind to concessions made on panels specified earlier absent exceptions. questions of law in unrelated cases. banc, Once a case is taken en the court is modify free to overrule or holdings supervisory the This power court’s is so (or, any matter, panel prior for that long- en and well-established that citation is decision). any exposition by banc the superfluous. quick computer So en almost A banc court on the rule of orderliness will produces myriad search Fifth deci- Circuit dictum. always be By reasoning, that bare mentioning “supervisory sions our authori- however, orderliness, the ty” rule of however or “supervisory power[s].” power This alia, confusingly, over, inter erroneously, contradictorily authority or includes attor- Castillo-Rivera, way, appellant's is one deliberate choice to 8. United States v. 842 F.3d (5th 2016) curiam). (per binding waive certain Cir. issues as to all future appellants? One can find ... Fifth Circuit Heller, panel opinions answering (Simon in the affirmative Joseph 9. Catch & Schuster 1961). negative. ... and in the majority’s dereliction Beyond and district of the court neys as officers to refine this abandoning opportunity from cases for can removed judges who be it recognizing precedent, process court’s naturally It follows good reason.10 aggressive to examine the significant au- ample supervisory court has en banc blesses, sub majority rule that the albeit orderliness the rule of thority to refashion day a can leave for another silentio. We panels. our own applies how, in an ideal general explication of power appellate of the supervisory “The world, rule of orderliness should read. “The long courts has been hand, only For the case at we need consid- established.”11 supervi- variety situations which [the gov- that the er the extreme formulation majority accepts: has been invoked defies sory power] urges ernment and the where, here, in an unrelat- party as which is at once com- attempt [define] ' reason, chosen, ed has for whatever case and accurate.... The sole prehensive law, that concession concede a and ... is a desire to common denominator holding judgment, n maintain or is included a final fair develop standards of binding, a matter of the concession is “Through in the federal courts....”12 play law, in later parties on all courts and powers, ‘may, we within supervisory our cases.15 limits, procedural spe- rules not formulate legal A can concede a issue for party by the or

cifically required Constitution pro He could be se and ”13 divers reasons. be, This can for exam- Congress.’ consequences of his conces- unaware of judicial protect integrity “to of the ple, represented by incompe- sion. He could be process.”14 lawyer could decide that tent counsel. His rogue panel It would be a or district to focus the court on other is better defy that would an en banc court indeed issues, espe- perceptively more winnable orderliness, of the rule of ex- refinement cially light length limitations for supervision, on pressed the exercise to avoid dis- party might briefs. The wish shaky ground that it is dictum. The embarrassing judge facts to the closing majority banc should point is that the en those jury by conceding the issue which the issue in the interest of have tackled issue particular facts are relevant. Or justice regularity. Its failure to do that might especially expensive be or time-con- develop. point, him to how- suming for is error. Williams, Jefferson, 13. United States v. 20 F.3d 10. United States v. 623 F.3d (5th 1994) J.) 2010) (Clement, J.) (“[T]he (Goldberg, (quoting Cir. United Unit 499, 505, Hasting, 103 S.Ct. States 461 U.S. Attorney subject ed States remains to this (1983)). 76 L.Ed.2d 96 general supervisory powers friv [over] court’s appeals.”); ... v. St. Jude Med. olous Gomez Hammond, 605 F.2d at 864. Inc., Daig Div. 2006) (supervisory power to remove district logic applies 15. The same to the less obvious case). judge from a case, which, in the an alter- situation in claim, theory although explicitly nate or not Hammond, F.2d 11. United States v. conceded, is never raised or abandoned 1979) J.) (on (Goldberg, 864 n.4 here, there, question The as even mentioned. rehearing). petition for judgment denying the is whether a relief on precludes, via the rule claim that is addressed Note, orderliness, later, Judge-Made Supervisory party 12. the Power of unrelated from of Courts, making that first the Federal 53 Geo. L.J. the additional claim the (1965). confronted. court never ever, only offenses, felon-in-possession is that he and he should suffer such as TPC 46.04(a), consequences reap § the the benefits— need not have an interstate —or law, of a decision to concede a commerce element in order for the offense the concession should be understood as not an be offense ‘described in’ 18 U.S.C. establishing legal precedent beyond Hernandez, § the 922(g)(1).”Nieto 592 F.3d at effect, preclusive added, as law of the case or res panel conclude, 684. The “We as we judicata, parties proceeding on the to that Garza, did in [United States v. 250 Fed. subsequent litiga- 2007) in the curiam) case hand or Appx. (per ], 46.04(a) tion. § that Nieto’s offense under TPC 1101(a)(43)(E)(ii)’s § fits within 8 U.S.C. however, government, urges The that ” ‘aggravated felony.’ definition of At that adopt expansive possible we the most point, panel appended the following the reading of the rule of that a orderliness: footnote: silence, judgment incorporates, by that brief, In his Nieto concedes that his legal by issue that is party— conceded 46.04(a) § offense under TPC fits within indeed, party a pro even se bind all —will 1101(a)(43)(E)(ii)’s § 8 U.S.C. definition litigants future in court though the “aggravated felony” every respect contested, briefed, had issue been consid- except for an interstate commerce ered, and explicitly original ruled on .... 46.04(a) element. TPC has two ele- panel. might that suggest reader that ments that are relevant to this decision: government’s position. overstates the But (1) (2) prior felony pos- conviction and government stood steadfast session of firearm. articulation of the rule orderliness § 922(g)(1) has three relevant elements: answering questions at en argu- banc oral (1) (2) conviction; prior felony possession explained, ment. Government counsel (3) firearm; of a interstate com- accept The court is not bound to requirement. merce Nieto concedes party.... concession of a Panels of the 46.04(a)’s his brief that TPC two ele- ability court need have and the correspond ments with 18 U.S.C. authority give guidance and notwith- 922(g)(l)’s first two elements. standing the fact that a litigant conceded issue, Hernandez, the court does not have to Nieto 592 F.3d at 686 n.6. accept that It can concession. look be- merely by It is obvious acknowl- yond satisfy the concession and itself concession, edging the defendant’s announcing that the rule it is is based in panel Hernandez did noU—in the Nieto exactly I think that law. what government quoted words counsel happened here with Nieto Hernandez. beyond above—“look the concession and satisfy announcing Government counsel erred. That itself the rule Nonetheless, at all what applying occurred Nieto Hernandez. is based the law.” search, vain, The reader will the briefs its extreme version of the rule of orderli- ness, brief, government government, of Nieto Hernandez and the in its en banc posits discussion of the elements of Texas that “Nieto-Hemandez remains [sic] 46.04(a) binding holding Penal Code or 18 as to its that the substan- § 922(g)(1).16 naturally possession It follows that the tive element of firearm is the panel explicit Nieto Hernandez made no same under Section 46.04 and Section holding except hold that state “[w]e 922(g)(1).” Except for the interstate-commerce ele- ment of the latter. says that the matter is not government rule to the government’s

Application consideration, urging that worthy the sound even Hernandez undermines Nieto not to convert his the and panel stay the this court “should course decision of holding. The issue was systems into a the of review concession continue to trust argued. Traditionally words, neither nor currently place.” briefed in In other “Move system justice, par- in our adversarial folks, along, nothing to see here.”17 And reasons for their give ties raise issues and convenient, in that the rule it brandishes view; judges examine respective points in a simi- rigged parties to favor itself and and declare the winners those submissions position. lar the issues that are still contested. based on flatly procedure par- A rule of bars an issue or—for party If a fails to raise raising from issues that were “decid- ties it, explicitly waives he whatever reason — prior, or ed” default inadvertence consequences from that choice suffers always unrelated cases will almost favor In circum- or from his inadvertence. these government and disfavor the criminal stances, to Hernandez’s detri- that is Nieto generally It the defendant defendant.18 decide panel ment. The his case did not prosecution who raises defenses to and issue, should have and Castillo-Rivera objections makes to enhancements and it it bring been free to have decided In aspects other of the sentence. an adver- waived, though prior party no had ever as system, the defendant benefits from sarial abandoned, failed to raise it. And that is or coming with defenses that have never up obtained under the the result has upon arguments been ruled or new that no understanding of this court’s rule of better has ever articulated. previous defendant orderliness. is, By declining That until now. to take hand, government,' The on the other is, by refusing the fork the road —that having many arguments benefits from as ques- and decide one of the two to address possible by precedent, foreclosed waiv- the court decided to rehear tions on which er, or abandonment.19 How convenient court, effect, this case en banc—the government say particular for the that a articulation of government’s installs the theory adversarily that was never tested is spe- more the rule of orderliness terms unavailable to the instant de- nonetheless before, than cific and onerous ever hapless fendant because some defendant justification explana- does so without or in the recent or distant conceded issue tion. in- past. approach precedent That does is, once, ... “stay deed the course and continue government’s position smug, systems currently place.” and convenient: in that of review smug both phrase ceded failed to advance. I ad- 17. "An ironic or sarcastic uttered or otherwise person detected a dress the civil side of the docket below. who feels that has he/she sinister, hidden, usually unpleasant deeper story meaning ... wishes to opposition peti- [that he/she] 19.In to Castillo-Rivera’s banc, possibly upsetting gener- rehearing government conceal to avoid tion for en public.” http://www.urbandictionary.com/ al "Arguments con- summarizes its rule as this: define.php?term=nothing% panel’s 20to% 20see% not considered in the sidered or 20here. resolution of the issue are irrelevant panel decid- future issue has been brief, disadvantage a civil ed.” In its amicus the Institute for Jus- 18. The same accrues to government’s plaintiff appropriately rule who wishes to advance claims that an tice calls case, precedent previous sweeping "the rule.” plaintiff, unrelated in a con-

237 question government majority The is whether the court. Yet the reject declines to doing justice winning sees its role as or even discuss it. all cost. How is it fair to cut off resourceful Refusing to take this fork the road is attorneys making good-faith argu- from easy way, but not right one. I addressed,

ments that no court has ever respectfully dissent. considered, seriously or decided? ma- The jority say. does not DENNIS, JAMES L. Judge, Circuit As the Institute for Justice comprehen- joined STEWART, by Judge, Chief and

sively shows its en banc brief as amicus SMITH, PRADO, GRAVES, and Circuit curiae, methodological flaw infects the Judges, joined and respect with to Part I litigation, arena of civil as well: “Parties only by COSTA, HIGGINSON and Circuit by strategic should be bound deci- Judges, dissenting: past litigants sions of to waive certain ar- guments. Judges should not be forced to Juan Castillo-Rivera provides two inde enhanced, conducting choose between cor- pendently sufficient grounds establishing grappling rective en banc review versus (TPC) § that Texas Penal Code 46.04 is un-briefed, arguments with unraised in ev- broader than 18 922(g)(1) and ery just opinion to ensure that en banc his conviction under TPC necessary.” correction will not be And aggravated 46.04 is therefore not an fel more: rights every “The constitutional First, ony sentencing guidelines. under the protected American will be better if those he shows the state law definition of rights squarely case-by- are decided on a “felony” is broader than the federal law basis, being implicitly case rather than Second, definition. he demonstrates that upon they ruled simply because lurked the state definition of law “firearm” is background of previous case.”20 broader than the federal law definition. majority opinion dispute The does not Cas “The our premise system adversarial Instead, it pur tillo-Rivera’s contentions. that appellate courts do not sit as self- ports rely on Gonzales v. Duenas-Alva legal inquiry directed boards of and re- rez, 183, 193, 127 U.S. S.Ct. search, essentially legal but as arbiters of (2007), holding L.Ed.2d 683 that Castil questions presented argued by and lo-Rivera has failed to to a state parties Nelson, before them.” NASA v. applies court decision that the state law in n.10, U.S. 131 S.Ct. (2011) J.). truth, (Alito, argues. the manner for which he In contrary L.Ed.2d 667 however, majority opinion relies on its notion—that waived or abandoned issues n own distorted version of nevertheless Duenas-Alvarez should be deemed “decided” rule, stretching beyond original it far its binding be the easiest to dis- —should abject require meaning inserting card because of its unfairness and additional irrationality majority’s I as manner of decision- ments of the own creation. adversarial, making by an respectfully common-law dissent. reasons,

20. And more still: number of tactical consid- from ideological preferences simple erations to sure, litigants To be are bound the hold- incompetence. impose To that decision on a ings they of courts in cases to which were not party parties. with a different view of tactics or ideol- cry saying But that is a far from (or ogy competence) litigants a different level of de- can be bound the tactical choices parties prives party important due-process they of individual with whom are not privity. party argument rights. A waive can fails to establish that the state’s “Felony” theless I. The Definition one definition is broader than federal first contention is that Castillo-Rivera’s he does not to a deci- state possession unlawful of the Texas offense of It point. sion that illustrates that cites felon, 46.04, § is by a TPC a firearm that a proposition Duenas-Alvarez for the counterpart, 18 than its federal broader must do so in all cases order defendant § to the state offense’s 921(g), due U.S.C. that probability” to establish a “realistic expansive definition of “felo- much more apply way its law in a that the state would 46.04(f): § ny.” Under TPC of the relevant scope falls outside of the state, under the laws of this an offense not federal offense.2 Duenas-Alvarez did state, the United another or States so hold. if, it is commit- felony ... a at the time (1) ted, designated by the offense: Duenas-Alvarez, In the defendant ar- (2) felony; this state as a contains law of gued prior that his California conviction designated all of an offense the elements driving taking of for theft and unlawful or (3) by felony; a of the state as a or law a vehicle under California Vehicle Code by year confinement for one punishable generic § not a theft offense 10851 was penitentiary. or more in a (1) the statute allows for the con- because: added). statute, The federal 18 (emphasis (2) abettors; viction of aiders and Califor- § 922(g)(1), possession makes the and nia courts hold aiders abettors liable only unlawful for those con- of firearm “naturally proba- for crime that and by punishable imprison- victed of “a crime crimes; bly” results from their intended exceeding year.” for a term one ment (3) judicial “natural and California’s probable consequences” doctrine is broad- majority dispute not opinion The does jurisdictions than that of other in that it er “felony” that the state’s definition of for makes an aider-and-abettor defendant § purposes of TPC 46.04 is broader criminally liable for conduct that the de- plain language comparable than the terms intend, “not even as a majority § But the fendant did 922(g)(1).1 of 18 U.S.C. of the byproduct never- known or almost certain opinion holds Castillo-Rivera Duenas-Alvarez, relying exclusively point, majority opinion disingen- 2. While on 1. At one majority opinion provides also a "see uously Castillo-Rivera’s undis- characterizes conclusory, postscript dicta also” citation to 46.04(f) puted of TPC as a construction - -, Holder, U.S. 133 text,” interpretation statutory Moncrieffe “plausible 1678, 1693, (2013). 727 S.Ct. 185 L.Ed.2d 222, Maj. anyone argue Op. at as if could cursory statement in is not the Moncrieffe "felony” Texas’s elaborate definition of actu- analysis of detailed of the law that we kind ally only punishable by crimes more includes persuasive. have found See United States v. year prison. plainly than one This is false. Krohn, 1033, 1983) 700 F.2d 1037 Consider, instance, misde- federal (the Supreme impor- Court "does not decide simple possession meanor offense of of heroin questions by cursory tant of law dicta inserted 844, cocaine, punish- which is (quoting In re Permian in unrelated cases” year prison able one for a first-time 775, Cases, 747, Basin Area Rate 390 U.S. offender and "contains all the elements of” (1968))); S.Ct. 20 L.Ed.2d 312 cf. felony Safety & Texas under Texas Health Servs., Inc., Entergy Gearlds v. 481.115(a) as a Code and therefore counts 2013) (stating, give "we serious 46.04(f)’s felony §TPC definition. Even under to this recent and detailed dis- consideration ap- the Government concedes in its brief on by majority cussion of the law of the Su- that, (f)(2) peal "the definitions in subsection finding preme persuasive Court” and (3) are than the depth of TPC 46.04 broader treatment "[biased on the Court’s issue”). federal definition.” States, defendant’s intentional acts.” Duenas-Al United U.S. S.Ct. varez, 190-91, 127 To (1990), U.S. S.Ct. 815. 109 L.Ed.2d 607 in which the argument, Court re Court categorical approach established the sponded “to find that state statute determine whether a state offense the generic creates crime outside defini generic constitutes a or other listed of- tion of a listed crime in a federal statute purposes fense for Taylor federal law. requires application legal more than the that, directs applying when the categorical imagination language.” to a state statute’s approach, we evaluate “the elements of the 193, Rather, Id. at 127 S.Ct. 815. an of conviction,” i.e., statute of “statutory probability, fender must show “a realistic definition” of the prior offense. 495 at U.S. possibility, not a theoretical that the State 601-02, course, 110 S.Ct. Of state apply would its statute to conduct that falls prosecutors’ discretionary decisions wheth- generic the- definition of a outside crime. prosecute er or not to an offense under probability, To show that realistic an of certain statutory circumstances cannot add ... must at fender least to his own elements to plainly statutes that do not case or other in which cases the state contain those elements. United States Cf. in fact apply courts did the statute (4th Aparicio-Soria, 152, v. 740 F.3d 158 special (nongeneric) manner for which he 2014) (en banc) (holding Cir. that the Ma- argues.” Id. ryland resisting crime of arrest was not a crime of violence despite the lack of show-

Duenas-Alvarez does not defeat Castil- ing anyone that has ever been convicted of lo-Rivera’s claim. Duenas-Alvarez is con- using the offense without force and observ- cerned with the defendant who tries to ing, may Maryland “It prosecutors be demonstrate that a statute is overbroad charge many tend to too offenders with hypothesizing might applied that it be resisting they arrest when charge could unlikely way through some fanciful or — crimes, may far more serious or it be that application legal imagination.” “the Cas- we have a skewed universe of cases from relying applica- tillo-Rivera is not on “the resisting the hundreds of arrest convic- legal tion of imagination” to establish that year. way, tions sustained each Either it 46.04(a) overbroad; relying TPC he is really key does not matter because plain language. on the statute’s As the elements, facts, not and violent force is. explained: Ninth Circuit has simply not an element of arrest in resisting ... a state statute explicitly Where de- (citation Maryland.” quotation and internal broadly fines a crime more than the omitted)). marks definition, generic “legal imagination” no required that a proba- hold realistic context, Viewed this is clear bility exists that the apply state will its not, majority does as the Duenas-Alvarez statute to conduct that falls outside the holds, opinion require a defendant to dis generic definition of the crime. The state prove statutory the inclusion of a element greater statute’s breadth is evident from plainly the statute does not contain its text. using Taylor a state case. itself illustrates Grisel, United States v. 488 F.3d 850 case, In point. Court 2007) (en banc) (citation omitted) considered whether defendant’s Duenas-Alvarez, (quoting 549 U.S. at generic Missouri convictions constituted 815). 127 S.Ct. burglary purposes of the Armed Ca 924(e). Act, approach This is consistent with the Su- reer Criminal preme 577-79, in Taylor Taylor, Court’s instructions v. 495 U.S. at 110 S.Ct. 2143. that, time, require not substan napping at the Mis statute does noted

The Court liberty tial interference with victim’s crimi had several different statutes souri text of the statute included no included burglary, not all of which nalizing requirement); Chavez- reference to such at generic burglary. Id. all the elements (“On Hernandez, face, at 499 671 F.3d instance, n.1, 602, 2143. For 110 S.Ct. qualify does not defendant’s] offense [the prohibited the of the relevant statutes one portion force physical under the “building, of a entering breaking does definition because the Florida statute car,” booth, tent, boat, id. at or railroad the use of force as an element not include n.1, (citing MO. REV. 110 S.Ct. added)); (emphasis of the offense.” United (1969) (repealed)), where 560.070 STAT. Najera-Mendoza, States only to the pertains offense generic as the 2012) (relying solely on the structure,” “building id. entry of language kidnapping of an Oklahoma stat therefore 2143. The Court S.Ct. that it ute to conclude does meet for a determination of remanded the case generic kidnapping); definition of United burglary the Missouri statutes which of Ortiz-Gomez, 683, States v. 562 F.3d 685- the defendant’s were the bases for (5th 2009) (holding Pennsyl that a 87 Cir. 602, 110 convictions. Id. at S.Ct. Of offense was not vania “terroristic-threats” here, crucial relevance the Court on the lan a “crime of violence” based produce require did not the defendant guage requiring of the statute and without Missouri state case establish point); a state decision on United States v. burglary state’s statutes criminalized the (5th Constante, 584, 585, 544 F.3d 587 Cir. breaking entering and of boat or railroad 2008) (relying language on the of TPC car. id. See 30.02(a) to conclude that it does not con instance, suit. For we We have followed necessary rea tain as an element the mens in order to require did not a state case generic burglary); Lopez-De to constitute conclude, review, plain on error that a Leon, 475; at 513 F.3d United States criminalizing Florida statute consensual (5th 174, Lopez-Salas, 513 F.3d 178 Cir. activity seventeen-year-old sexual with a 2008) (relying language on the of the rele require does not use of force as an element it does vant state statute to conclude that of the offense. See United States v. Chav necessary not include as an element the (5th ez-Hernandez, 494, 671 F.3d 499 Cir. drug trafficking mens rea to constitute a 2012). Similarly, require we did not a state offense); Ortega-Gonzaga, States v. United to establish that the relevant Califor case (5th 2007) 393, (relying 490 F.3d 394 Cir. statutory nia definition of “minor” as “a language burglary on the of a California years” of includes person age under the 18 require statute to conclude that it did not persons age over the sixteen. See Unit entry unprivileged and therefore did not 472, Lopez-DeLeon, ed States v. 513 F.3d generic burglary); see also Unit constitute (5th 2008). 475 Cir. Martinez, Fed.Appx. ed States v. 595 majority opinion’s holding (5th 2014) (“[W]e broad have found the Cir. point that a defendant must all cases with possibility requirement realistic met state case illustrate overbreadth specific out the benefit of a state decision legion the state offense overrules a point plain on in circumstances where the refusing acknowledge clearly to even language cases while of the statute criminalized See, e.g., generic] their existence. United States v. conduct outside of the [relevant Ortiz-Gomez, Martinez-Romero, F.3d at (citing 817 F.3d offense.” 685-87)). 2016) that Florida’s kid- (concluding Cir. Thus, majority opinion majority opinion’s unqualified

Nor does the address acknowledge that rule that a defendant holding or even di must all cases rectly holdings with from to a state court decision to conflicts illustrate First, Third, Sixth, Ninth, the state statute’s breadth misconstrues Eleventh Duenas-Alvarez, directly Circuits, conflicts all with recognized of which have Taylor, ignores both our established limits Duenas-Alvarez ’s requirement. circuit precedent holdings and the (1st of sev- Yates, Swaby v. F.3d See eral of our sister circuits. 2017) Castillo-Rivera (“Simply put, plain terms of has shown that TPC 46.04’s definition of drug the Rhode Island schedules make “felony” is broader than the federal defini- clear the Rhode Island offense covers tion, and the state offense therefore covers drug least one not on the federal sched conduct outside scope of 18 U.S.C. simply ules. That offense is too broad to § 922(g)(1). Accordingly, Texas’s felon-in- qualify predicate as a offense under the possession-of-a-firearm offense is not “de- categorical approach, whether or not there in” 922(g)(1) scribed and does probability is a realistic that the state ac aggravated not constitute an felony. See 8 tually prosecute involving will offenses 1101(a)(43)(E)(ii); U.S.S.G. particular drug.”); Attorney Vassell v. U.S. n.3(A). § 2L1.2 cmt. Gen., 2016) (“Duenas-Alvarez require does not II. The Definition of “Firearm” showing statutory language when the it self, Castillo-Rivera’s second contention is application rather than ‘the of legal felon-in-possession-of-a- the Texas imagination’ language, to that creates the firearm offense is broader than the federal probability’ ‘realistic that a state would one because of expansive the more state beyond apply the statute conduct the “firearm,” definition of which can include definition.”); generic Singh v. Attorney air guns. even He notes that Texas law (3d 2016) Gen., 273, 839 F.3d 286 Cir. a designed, defines “firearm” as “a device (“The conducting BIA erred in a ‘realistic adapted expel projectile made or a “[h]ere, probability’ inquiry” because the by through using energy gen- a barrel the elements of the crime of conviction are not explosion burning erated or sub- the generic same as the elements of the 46.01(3) stance,” added), § (emphasis TPC federal offense” and Court “[t]he “firearm,” whereas federal law defines as has never conducted a probabili ‘realistic here, “any relevant as ... weapon which case”); ty’ a inquiry such United States designed may readily will or is to or be (9th 2007) Grisel, 844, 488 F.3d 850 Cir. expel projectile by converted to a the ac- banc) (en (“Where ... a state statute ex 921(a)(3) § explosive,” tion of an a plicitly broadly defines crime more than added). (emphasis definition, generic “legal imagina no required tion” is to hold that a realistic Here, argue Castillo-Rivera does not probability apply exists that the state will that the relative overbreadth of the state its statute to conduct that falls outside the plain from its He must offense text. crime.”); generic definition of the Mendie probability” therefore show a “realistic Gonzales, 564, Fed.Appx. ta-Robles v. 226 apply that the state would the statute to 2007) (the Cir. Government’s le conduct that is not the federal covered offense, gal-imagination argument fails because “it by pointing to “his own case or requires ignore language” us to the clear other in which the state courts in cases statute). special fact did the statute apply definition, Texas the federal argues.” Duenas- Unlike the

manner for which he definition, requires the action of an Alvarez, 815. He which S.Ct. 549 U.S. 921(a)(3), “self- “explosive,”- 18 U.S.C. just that. does evidently not include an air rifle ... does ap- points to the Texas Castillo-Rivera air.” operates by compressed United [that] State, court decision in Boston v. pellate (1st Crooker, States v. (Tex. 05-96-00832-CR, No. 1998 WL 2010); v. Houshold- see also United States 1998) (unpublished). In Bos- App. Jan. er, Fed.Appx. 722-23 ton, aggra- was convicted of the defendant (an 2016) gun air is not a (unpublished) peace a officer after he assault of vated firearm). Thus, the court in Boston actual- at *1. an air rifle at an officer. Id. pointed statutory provision that Castil- ly applied conviction, support To his the State had overbroad, challenges as lo-Rivera air that the defendant’s rifle was prove not way so in a that federal law would did qualified and therefore “firearm” allowed; currently Boston is serv- have Mr. “deadly determining See id. In weapon.” prison sentence as a di- ing protracted defendant’s air rifle was a whether the application. rect result of that purposes of the defendant’s “firearm” Boston, majority opinion Faced with offense, the court utilized the definition of again utilizes a mutated version of Due- 46.01(3).3 at *2. “firearm” TPC See id. day to save the and hold that nds-Alvarez court held that there was suffi- The state required make the Castillo-Rivera fails to that the defen- cient evidence to conclude First, showing. majority opinion states a “firearm” dant’s air rifle constituted that “Boston did not hold as a matter of 46.01(3) §(cid:127) meaning of TPC be- within the Texas definition of firearm law air compressed cause the release of consti- guns” merely includes air instead but it therefore af- “explosion,” tuted an sufficiency-of-the-evidence deter- “made a (under firmed his conviction.4 Id. TPC Thus, Maj. ma- Op. mination.” at 226. 46.01(3) “a device de- firearm is continues, “the court jority opinion did made, expel projec- signed, adapted gun if an air is a firearm under decide by using energy through tile a barrel (emphasis original). TPC 46.01.” Id. explosion burning an sub- generated or The firearms examiner testified stance. Respectfully, reasoning is nonsensi- explosion that there is an ... whenever cal. The court concluded that “the Boston compressed air in an air rifle is re- legally prove sufficient to [was] evidence (emphasis original)). Castillo- a fire- leased” the air rifle used this case was arm, 46,” pointed chapter thus to a state case as that term is defined in Rivera has testimony explo- that law definition of based on that “there is an holding the state controlling compressed of convic- sion ... whenever the air in “firearm” his offense statutory an air rifle is released” and the tion can include air rifles. 46.01(3)’s only § Texas case hold 3. TPC definition of "firearm” ex- 4. Boston is not the offenses, pressly applies only weapons but gun that an air or an air rifle can be long Texas courts have used this definition to 689, State, In Shelton v. 10 S.W.3d firearm. particular weapon determine whether (Tex. 1999), App. appellate another state 696 counts as a "firearm” in the context of of- applied court the definition of firearm in TPC involving "deadly weap- the use fenses 46.01(3) reject argument § a defendant's See, State, e.g., S.W.2d on.” DeAnda v. 769 gun was not a and there- that his air firearm 522, (Tex. 1989); App. Vaughn v. 524 Crim. the defendant’s conviction for fore affirmed State, (Tex. App. 600 S.W.2d Crim. aggravated robbery. 1980). definition, qualifies under which a device Nothing required. conviction. more is See if it designed expel Holder, firearm a Castillo v. 776 F.3d 2015) (“[T]o projectile “by using energy generated the extent that the statu explosion burning substance.” tory definition of the prior offense has *2 (emphasis origi at WL interpreted by been appellate state’s nal). legal This par determination ex courts, that interpretation constrains our cellence: the court concluded that TPC (ci analysis of the elements of state law.” § 46.01’s definition of can in “firearm” quotation tation and internal marks omit guns. clude air How else could the court ted)); see Lynch, also De Leon v. “legally find the evidence was suffi 2015) 1224, 1230 (similar). cient”? There is requirement See id. no Accordingly, the state statute’s defini- that the relevant state case hold that the tion of “firearm” is broader than the feder- particular circumstances the defendant definition, al and the state offense there- law,” suggests always, will “as matter of fore scope covers conduct outside the satisfy requirements; simply state law reason, too, the federal offense. For this they to illustrate that can. has See Due TPC 46.04 is not “described in” 18 nas-Alvarez, 549 U.S. at 127 S.Ct. 815. § 922(g)(1) and does not constitute Next, majority opinion contends that an aggravated felony. nothing to do Boston “had with TPC 46 * * * whatsoever” and “did not deal with TPC Maj. Op. § 46.04 at all.” at con- 226. This § 46.04 TPC is broader than federal its disingenuous. tention is The Boston court’s counterpart independently for two suffi- 46.01(3)’s construction of TPC definition majority opinion ig- cient reasons. The “firearm” determined the outcome of attempts nores this and to veil misguid- case, specific and that provision pro- Duenas-Alvarez, analysis ed with but integral part vides an of Castillo-Rivera’s simply support majority case does not conviction, 46.04. statute TPC See opinion’s holding. I therefore respectfully 19938, at *2. previously 1998 WL As ex- dissent. plained, commonly Texas courts use this particu- definition to determine whether a HIGGINSON, A. STEPHEN Circuit

lar counts as a “firearm” in the weapon part dissenting Judge, concurring involving context of offenses the use of a part: See, DeAnda, “deadly weapon.” e.g., 524; Vaughn, at 315.

S.W.2d S.W.2d majority I concur in III.B of the Section Judge I of opinion, Section Dennis’s required Court has dissenting opinion, Judge and in full in the defendant to a case “in which the dissenting opinion. Because “felo- Smith’s apply state courts in fact did the statute in ny” under Texas Penal Code 46.04 is special the ... manner for which he ar than, broadly defined more hence not “de- Duenas-Alvarez, gues.” See 549 U.S. at in,” § 922(g)(1), agree I fined 193, 127 points S.Ct. 815. Castillo-Rivera Judge dissenting opinion Dennis’s with appellate state court case held (3)’s cannot be “firearm,” that Texas Penal Code 46.04 TPC 46.01 definition of felony” an under the Sentenc- offense, “aggravated governs which his 46.04 TPC Although applied I have ing af Guidelines. can include air rifles and therefore air-rifle-wielding “realistic-probability” firmed an the test announced defendant’s 244 Duenas-Alvarez,1 appropriate in an Judge precedents I with visit its agree meantime, case.”). un- In the it is further that this added dissenting opinion

Dennis’s the real- that courts will stretch unnecessary surprising when a state stat- showing is istic-probability test of Duenas-Alvarez than its federal facially broader ute is bridge the chasm be- more and more to analog. judicial intent and congressional tween highlights case Fundamentally, this doctrine. categorical in the incongruities inherent yet ad- Supreme Court has Congress did not intend sub approach. elasticity we face here: is the possession of a dressed the ject all felons federal test of Duenas-Alva- sentencing realistic-probability enhance firearm to a recidivist an only interpreting a means of none from Texas. This rez not ment but to include statute, state but the rule ambiguous scholars call the paradoxical result —what Taylor, In both Mathis and consequence every case? problem' “windfall” —is however, suggested has at least categorical frame the Court judicially crafted Mathis, (finding at 2250 work, harmonized with it’s not. 136 S.Ct. which cannot be intent, ge- than unsurpris burglary Iowa’s statute broader congressional and thus courts, only on text with- including burglary neric based ingly continues to trouble caselaw); Taylor to Iowa v. Compare Descamps v. out resort Court. — States, 575, 599-600, States, -, 495 U.S. U.S. 133 S.Ct. United United (1990) 2143, (2013), (finding 2276, with Mathis S.Ct. 109 L.Ed.2d 607 186 L.Ed.2d 438 — States, U.S. -, second-degree burglary statute 136 S.Ct. Missouri’s v. United (2016). 2243, only ongoing generic burglary broader than based 195 L.Ed.2d 604 Our without resort to Missouri case- struggle apply categorical approach on its text law). apprehensive majority’s I am that the respecting congressional purpose while every case2—a punishment requirement for similar recidi absolute to enhance Judge dissenting opinion Dennis’s may justify Supreme Court interven rule vists Mathis, at demonstrates is in tension with at least yet again. tion See 136 S.Ct. (“[Cjontin- J., (Kennedy, concurring) four other circuits and also conflicts with precedent inaction in the face of a considerable of our own3—addi- congressional ued tionally places impractical un burden on system year proves that each more required without access to the require workable should this Court to re- defendants plausibly interpreted Lara-Mar- as broader on its face.” 1. As the author of United States v. tinez, question for Majority Op. I how this decision stands n. 4. always point rule a defendant must case as evidence of a state state-court Najera-Mendoza, 3.See also United States v. (5th sweep. F.3d 472 Cir. crime's broader (5th 2012) (finding Cir. 683 F.3d 2016). Lara-Martinez, In we addressed a state kidnapping Oklahoma’s statute broader than plainly that was narrower than tire statute generic kidnapping only on its text based comparable categorical offense. Id. at 476 caselaw); without resort to Oklahoma United (contrasting categorical crime violence Bonilla, States 524 F.3d 654-55 minor,” of “sexual abuse of a where federal 2008) (finding attempted New York’s person defines “minor” as a under law generic manslaughter than statute broader misconduct with Missouri’s offense of “sexual manslaughter only on its text without based child,” involving a where Missouri defines caselaw); resort to New York United States v. 15). person “child” as under Fierro-Reyna, 2006) (finding aggravated Texas’s assault stat defendant must to an actual state “[A] only generic applying nongeneric ute broader than assault based a state statute in a case manner, caselaw). may even be on its text without resort to Texas where state statute prosecu- most criminal information. With ending plea agreements puta-

tions charges driving plea negotiations,

tive may

conduct define as criminal states decisions, expressed

be appellate-level required satisfy

and the evidence

majority’s may rule thus be unavailable. MOORE, Plaintiff-Appellant

Carlos E. Dewey Phillip BRYANT,

Governor Capacity,

In his Official

Defendant-Appellee

No. 16-60616 Appeals,

United States Court of

Fifth Circuit.

FILED March notes tions prior elements There is no conviction]. ("The determination whether the defendant requires ‘best evidence’ rule in Texas that But, jury. prior for the has conviction is prior proven the fact of a conviction be with qualifies predicate whether a conviction as a document, any specific much less docu- legal question offense under this statute is a copy ment. While evidence of a certified of a judge, jury.”); for the not the see also U.S. v. judgment may pre- final and sentence be a 2006) Elrawy, 448 F.3d means, may and convenient the State ferred (noting particular that whether a defendant’s prove both of these elements in a number of "illegally (1) circumstance rendered him or un- ways, including the different defendant’s (2) lawfully” in the United States based on statu- stipulation, testimony by admission or statutory tory legal person present person the definitions was issue of who was when was novo). specified interpretation, and can iden- reviewed de convicted of the crime established, prior judge’s of a conviction is wheth- ed of.”24A role in applying section 46.04(f) predicate if, that conviction was for a of- er is to determine based on the fact question ques- fense is not a but a statutory elements of prior offense and tion of law. prescribed punishment, prior of- 1, 2, fense comes within subsection or 3. given by The reasons categorical utilizing approach Court The third expressed by reason the Su- prior may to determine if a conviction be preme Court is that “an elements-focus punishment used to increase all indicate avoids unfairness to defendants” because inquiry that the elucidated elements/means “statements of ‘non-elemental fact’ in the particularly good Mathis is not a “fit” prior records of prone convictions are for, to, fully applicable a statute error precisely proof because their un- of conviction such as Texas Penal Code necessary” and “a may defendant have no 46.04(f). section None of the reasons indi- incentive to contest what not matter does precluded cates that a court should be law; under the contrary, ‘may he ”25 resolving legal from question of wheth- good have reason not to.’ This concern er a for an conviction was offense is not implicated any of the alternative (1) 46.04(f). defined subsection 46.04(f) under because each definitions

Case Details

Case Name: United States v. Juan Castillo-Rivera

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 30, 2017

Citation: 853 F.3d 218

Docket Number: 15-10615

Court Abbreviation: 5th Cir.