UNITED STATES OF AMERICA v. LATROY LEON BURRIS
No. 17-10478
United States Court of Appeals, Fifth Circuit
April 10, 2019
Before WIENER, GRAVES, and HO, Circuit Judges.
Appeal from the United States District Court for the Northern District of
WIENER, Circuit Judge:
Defendant-Appellant Latroy Leon Burris pleaded guilty to being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA), which provides for an increased sentence if the defendant has been convicted of three prior violent felonies. Burris contends that he was not eligible for the increase because his prior Texas conviction for robbery was not a violent felony.
By a divided vote, we previously held that Texas robbery does not have as an element the “use, attempted use, or threatened use of physical force.”1
The government moved for rehearing en banc, and we withdrew our opinion pending the en banc court‘s decision in United States v. Reyes-Contreras.2
Those cases apply to Burris‘s sentence and govern the outcome of this case. We hold that robbery under
I. FACTS AND PROCEEDINGS
In July 2016, Burris pleaded guilty to (1) being a felon in possession of a firearm, in violation of
The PSR states that Burris had three prior convictions qualifying him for the ACCA: (1) a 1993 Texas conviction for robbery, (2) a 1993 Texas conviction for aggravated robbery, and (3) a 2012 Texas conviction for manufacturing/delivering a controlled substance. When he pleaded guilty, Burris disputed that he qualified for the enhanced penalties of the ACCA. After the probation office issued the PSR, Burris objected, insisting that his convictions for robbery and aggravated robbery do not qualify for the ACCA.7 The district court adopted the findings of the PSR, concluding that Burris‘s prior convictions for robbery and aggravated robbery qualified him for the ACCA‘s enhancement. The court then sentenced him to 188 months in custody, a sentence at the low end of the applicable guidelines range.
Burris timely appealed, challenging the district court‘s ruling that his Texas convictions for robbery and aggravated robbery were “violent felonies.” After Burris filed his opening brief, another panel of this court held that the version of aggravated robbery for which Burris was convicted is a violent felony under the ACCA.8 Burris conceded that his aggravated robbery conviction qualified as a violent felony,9 so this appeal concerns only whether Burris‘s conviction for simple robbery also qualifies as a violent felony.
II. STANDARD OF REVIEW
The government acknowledges that Burris preserved his objection in the district court. We therefore review de novo the district court‘s conclusion that his simple robbery conviction was a violent felony under the ACCA.12
III. ANALYSIS
A. The Relevant Statutes
The ACCA defines a “violent felony,” in relevant part, as:
[A]ny crime punishable by imprisonment for a term exceeding one year... that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]13
Before the Supreme Court‘s decision in Samuel Johnson v. United States,14 Texas robbery was considered a violent felony under the second part of clause (ii), known as the “residual clause,” because it “involve[d] conduct that presents a serious potential risk of physical injury to another.”15 In Samuel Johnson, however, the Court struck down the residual clause as unconstitutionally vague.16 Consequently, robbery is a violent felony under the ACCA if it has as an element the use, attempted use, or threatened use of “physical force.”
B. Divisibility
Texas robbery is defined in
A person commits an offense if, in the course of committing theft... and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.17
We refer to the alternatives delineated by subparts (1) and (2) as “robbery-by-injury” and “robbery-by-threat.” This court has never addressed whether
If
To determine what a state statute covers, “federal courts look to, and are constrained by, state courts’ interpretations of state law.”23 “[T]he focus on the minimum contact criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a theoretical possibility, that the state would apply its statute to conduct
that falls outside [the use-of-force clause.]”24 “Without supporting state case law, interpreting a state statute‘s text alone is simply not enough to establish the necessary ‘realistic probability‘.”25
On the other hand, if
Burris‘s conviction documents do not specify whether he was convicted of robbery-by-injury or robbery-by-threat. His indictment states that he caused injury, but it charges him with aggravated robbery. We cannot look to the indictment to narrow the subsection of conviction if it indicts Burris for a crime other than the one to which he pleaded guilty.29
Reyes-Contreras confirmed, however, that we may “make reasonable use of the indictment, together with the judgment, to identify the crime of conviction.”30 The judgment and indictment state that Burris caused “serious bodily injury.” Based on those documents, it appears that Burris pleadеd guilty
to robbery-by-injury under
We need not decide whether
C. Robbery-by-Injury
We first address robbery-by-injury.
1. Causing Bodily Injury Versus Using Force
a. Prior Precedent
In United States v. Vargas-Duran, the en banc court considered whether the Texas crime of “intoxication assault,” which requires the defendant to have “cause[d] serious bodily injury to another,” was a crime of violence under United States Sentencing Guideline (“U.S.S.G.“) § 2L1.2, which “has as an
element the use, attempted use, or threatened use of physical force against the person of another.”33 The en banc court held that it did not, for two reasons. First, the court explained, the Texas statute does not require that the defendant have the state of mind needed to “use” force: “[T]he fact that the statute requires that serious bodily injury result . . . does not mean that the statute requires that the defendant have used the force that caused the injury.”34 Second, the court added that “[t]here is also a difference between a defendant‘s causation of an injury and the defendant‘s use of force.”35
We reiterated this difference in United States v. Villegas-Hernandez, when we considered whether the Texas crime of assault—requiring that one “intentionally,
the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim.”40
b. The Supreme Court and the En Banc Court Weigh In
Under Vargas-Duran, a person could “cause bodily injury” per Texas law without using “physical force” per federal law. But subsequent Supreme Court precedent and the en banc court‘s overruling of Vargas-Duran in Reyes-Contreras foreclose that conclusion.
In Curtis Johnson v. United States, the Supreme Court interpreted the phrase “physical force” within the ACCA. The Court noted that the common-law definition of “force” could be “satisfied by even the slightest offensive touching.”41 But the Court held that the common-law definition of force did not apply to the ACCA; in the ACCA context, “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.”42
In United States v. Castleman, the Supreme Court considered the term “physical force” in the context of
the differences between the two contexts in which the term “physical force” arises: “[W]hereas the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force,’ that is not true of ‘domestic violence.’ ‘Domestic violence’ is not merely a type of ‘violence‘; it is a term of art encompassing acts that one might not characterize as ‘violent’ in a nondomestic
Applying this common-law definition of “physical force,” the Court held that the defendant‘s conviction for “caus[ing] bodily injury” to the mother of his child categorically qualified as a MCDV.46 In doing so, the Court explained that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force” in the MCDV context.47 The Court added that “the common-law concept of ‘force’ encompasses even its indirect application,” such as poisoning a victim.48 The Court expressly declined to reach the question “[w]hеther or not the causation of bodily injury necessarily entails violent force.”49 Neither did the Court decide the question whether minor injuries, such as a “cut, abrasion, [or] bruise . . . . necessitate violent force, under [Curtis] Johnson‘s definition of that phrase.”50
The Court next decided Voisine v. United States, which concerned the meaning of “use” rather than “physical force.” Like Castleman, Voisine arose in the context of an MCDV.51 Specifically, the Court considered whether a
person could recklessly “use” physical force—in the context of an MCDV—or if such “use” required knowledge or intent.52 The Court held that there was no requirement of intent or knowledge: A person can “use” force while acting recklessly.53 The Court added that use of force does require a “volitional” action; by contrast, involuntary or accidental movements are not uses of force in the contеxt of a MCDV.54
In Reyes-Contreras, the en banc court resolved five questions that arose after Castleman and Voisine: (1) whether Castleman‘s holding was limited to MCDVs, as this court had previously held,55 (2) whether this court‘s previous distinction between “direct” and “indirect” force56 was compatible with Castleman, (3) whether this court‘s previous requirement of “bodily contact” to qualify as a crime-of-violence57 survived Castleman (4) whether this court‘s precedent holding that “the ‘use’ of force required that [a] defendant intentionally avail himself of that force”58
The en banc court answered “no” to all of these. It held that ”Castleman is not limited to cases of domestic violence” and that “for purposes of idеntifying a conviction as a [crime-of-violence], there is no valid distinction between direct and indirect force.”60 The court also overruled the “requirement of bodily
contact” for a crime-of-violence.61 Importantly for our purposes today, the en banc court held that “the ‘use of force’ does not require intent because it can include knowing or reckless conduct”62 and that ”Castleman and Voisine d[id] away with Vargas-Duran‘s unnatural separation of causing injury from the use of force.”63
In his supplemental brief to this panel, Burris contends that Reyes-Contreras did not actually hold that reckless causation of injury was sufficient to satisfy the elements clause. Burris maintains that Reyes-Contreras‘s overruling of Vargas-Duran is dicta. Vargas-Duran held that that the “use” of force requires an intentional action; Reyes-Contreras overruled that holding, explaining “the use of force’ does not require intent because it can include knowing or reckless conduсt.”64 According to Burris, the Missouri manslaughter statute at issue in Reyes-Contreras criminalized only knowing and intentional causation of death, so the Reyes-Contreras court‘s conclusion that reckless conduct constitutes the “use” of force did not affect the statute at issue in the case.
We disagree with Burris. To the extent the en banc court‘s conclusion in Reyes-Contreras did not address an issue central to that case, the court cabined its reasoning by explaining that the Supreme Court in Voisine had already “abrogated the reasoning in Vargas-Duran” on that issue. Notably, although Voisine was an MCDV case and not an ACCA elements-clause case, Burris does not challenge Reyes-Contreras‘s application of Voisine‘s reasoning to the ACCA‘s similarly worded violent-felony provision,65 or this court‘s earlier
precedent applying Voisine outside the MCDV context.66 So, even assuming Reyes-Contreras‘s “disavow[al]” of Vargas-Duran was dicta, Voisine, a subsequent Supreme Court decision, binds this court and confirms that the use of force under the ACCA includes reckless conduct.67
c. Retroactivity
Faced with this change in precedent, Burris contends that Voisine and Reyes-Contreras should not apply retroactively. He insists that those decisions
amount to a substantial change in this court‘s precedent and a “significant departure” from the prior legal regime that relaxed the government‘s burden. We hold that retroactive aрplication of those decisions to Burris‘s sentence does not violate due process.
The Ex Post Facto Clause does not apply to the judiciary.72 “Strict application of ex post facto principles in that context would unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system. The common law . . . presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles.”73 In Bouie v. City of Columbia, for example, the Court held that a South Carolina Supreme Court‘s interpretation of a statute could not apply retroactively because the construction was (1) “clearly at variance with the statutоry language“; (2) had “not the slightest support in prior South Carolina decisions“; (3) was “inconsistent with the law of other States“; (4) was anticipated by “neither the South Carolina Legislature nor the South Carolina police“; and (5) applied to conduct that could not “be deemed improper or immoral.”74 Under those circumstances, the Court held that a retroactive application of a judicial construction of a criminal statute violates the Due Process Clause if that decision is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.”75
This court recently held in United States v. Gomez Gomez that even though Reyes-Contreras significantly changed this court‘s ACCA jurisprudence, retroactive appliсation of that decision does not violate
process.76 We explained that Reyes-Contreras “merely reconciled our circuit precedents with the Supreme Court‘s decision in Castleman” and “aligned our circuit with the precedents of other circuits.”77 “In short, Reyes-Contreras was neither unexpected nor indefensible.”78
The same is true of Voisine. That case resolved a circuit split over whether a misdemeanor conviction for reckless assault required the use of “physical force” in the MCDV context.79 Voisine‘s holding that reckless conduct qualifies as the “use” of force focused on
Voisine is consistent with the ACCA‘s statutоry language and lacks the problems identified in Bouie. We agree with the other circuits that have applied Voisine retroactively82 and note that the Voisine Court itself applied its holding to the petitioner-defendants there.83 We conclude that Voisine was neither “unexpected” nor “indefensible” and may apply retroactively.84
2. Degree of Force
Although Reyes-Contreras resolved several ACCA issues, it did not address the degree of force necessary to qualify as a violent felony under the
ACCA‘s elements clause.85 Burris contends that causing a minor injury, such as a bruise, meets the Texas definition of causing “bodily injury,” but does not require physical force under federal law. The Supreme Court‘s recent decision in Stokeling—which held that “‘physical force,’ or ‘force capable of causing physical pain or injury,’ includes the amount of force necessary to overcome a victim‘s resistance”86—forecloses Burris‘s contention. Force necessary to overcome a victim‘s resistance entails less force than is necessary to cause bodily injury under Texas law.
a. “Physical Force” Under the ACCA
Curtis Johnson defined “physical force” under the ACCA as ”violent force—that is, force capable of causing physical pain or injury to another person.”87 After Curtis Johnson, the Court left open the question
In Stokeling, the Court held that the ACCA‘s elements clause “encompasses robbery offenses that require the criminal to overcome the victim‘s resistance.”89 The Court explained Congress‘s 1986 amendment of that statute, in which Congress removed “robbery” as an enumerated predicate offense and added the elements clause. By retaining the term “force,” Congress intended that the “‘force’ required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause.”90 The Court explained in Stokeling that “it would be anomalous to read ‘force’ as excluding
the quintessential ACCA-predicate crime of robbery, despite the amendment‘s retention of the term ‘force’ and its stated intent to expand the number of qualifying offenses.”91
The Court went on to explain that under Curtis Johnson‘s definition of “physical force,” the force used need not be “substantial” and the “altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.‘”92 Focusing on Johnson‘s use of the word “capable” of causing physical pain or injury, Stokeling held that the “physical force” under the ACCA does not require “any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality.”93
The petitioner in Stokeling contended—as Burris does here—that, under Castleman, the level of force must “be ‘severe,’ ‘extreme,’ or ‘vehement.‘” The Court expressly rejected that argument. “These adjectives cannot bear the weight Stokeling would place on them. They merely supported Johnson‘s actual holding: that common-law battery does not require ‘force capable of causing physical pain or injury.’ . . . Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA‘s scope.”94
Instead, the Court adopted Justice Scalia‘s Castleman concurrence, in which he concluded that minor uses of force and minor forms of injury qualified as “physical force” under Curtis Johnson:
Stokeling next contends that Castleman held that minor uses of force do not constitute “violent force,” but he misreads that opinion. In Castleman, the Court nоted that for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively “minor uses of force” that might not “constitute ‘violence’ in the generic sense” could nevertheless qualify as predicate
offenses. The Court thus had no need to decide more generally whether, under [Curtis] Johnson, conduct that leads to relatively minor forms of injury—such as “a cut, abrasion, [or] bruise“—“necessitate[s]” the use of “violent force.” Only Justice Scalia‘s separate opinion addressed that question, and he concluded that force as small as
“hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling,” satisfied Johnson‘s definition. He reasoned that “[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” This understanding of “physical force” is consistent with our holding today that force is “capable of causing physical injury” within the meaning of Johnson when it is sufficient to overcome a victim‘s resistance. Such force satisfies ACCA‘s elements clause.95
In short, under Curtis Johnson, physical force under the ACCA is force “capable of causing physical pain or injury.”96 That definition encompasses the force necessary to overcome a victim‘s resistance. The degree of force entails more force than the “slightest offensive touching,”97 but does not require “any particular degreе of likelihood or probability that the force used will cause pain or injury; only potentiality.”98 The emphasis is on “capable.” Even minor uses of force—including hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling—that lead to minor forms of injury, such as a cut, abrasion, or bruise, qualify as “physical force” under Curtis Johnson.99
b. Texas Robbery
In his supplemental brief, Burris contends that Texas robbery requires less force than Florida robbery because Texas robbery does not require a physical struggle or confrontation between the robber and the victim. We disagree.
Burris cites Howard v. State, in which the Court of Criminal Appeals of Texas upheld a conviction for aggravated robbery-by-threat even though there was no physical interaction between thе defendant and the victim.100 In Howard, the defendant entered a store wielding a rifle while the cashier was in the back office.101 The cashier observed the defendant on a security camera, locked the office door, and dialed 911. The defendant took the cashier‘s wallet and left.102 There was no evidence that the defendant was aware of the cashier. The court held that “robbery-by-placing-in-fear does not require that a defendant know that he actually places someone in fear, or know whom he actually places in fear. Rather, it requires that the defendant is aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear.”103
Howard is distinguishable. Stokeling did not consider a robbery-by-threat statute, so the Court did not have the opportunity to consider a “threat” statute. Even so, Howard‘s explanation of robbery-by-threat comports with Stokeling‘s definition of physical force. Howard held that a defendant must be “aware that his conduct is reasonably certain to place someone in fear, and that someone actually is placed in fear.”104 Stokeling held that force “capable of causing physical pain or injury” does
necessarily involved the “attempted . . . or threatened use of physical force” under the ACCA.
This court has already held that the aggravated robbery-by-threat statute considered in Howard satisfies Curtis Johnson‘s definition of physical force. “There can be no question that a crime under
Finally, Texas caselaw indicates that robbery-by-injury does involve a physical confrontatiоn with the victim. The Texas Court of Criminal Appeals has held that “so long as the ‘violence’ is clearly perpetrated against another ‘for the purpose of . . . preventing or overcoming resistance to theft,’ it does not serve the legislative intent to engage in fine distinctions as to degree or character of the physical force exerted.”107 Notably, this explanation matches Stokeling‘s definition of physical force.
c. “Bodily Injury” Under Texas Law
Burris next contends that Texas‘s definition of “bodily injury” is too broad to satisfy the ACCA‘s elements clause. That definition includes, “physical pain,” “illness,” or “any impairment of physical condition.”108 According to Burris, Texas robbery requires less force than the Florida robbery statute considered in Stokeling. We disagree.
The Court of Criminal Appeals of Texas has interpreted the definition of “bodily injury” quite expansively, noting that “[t]his definition appears to be
purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching.”109 In Lane v. State, the court found bodily injury when the victim‘s “wrist was twisted” and she sustained a “bruise on her right wrist.”110 The court also approvingly cited an earlier decision holding that “a small bruise” constituted bodily injury.111 In both cases, the victims suffered some “physical pain.”112 It appears that pain is not a requirement, however. Any “impairment of physical condition” is bodily injury.113
The closest case Burris cites is Martin v. State, in which the state court upheld a robbery conviction when the defendant, in flight from a store, shouted
“I have AIDS” at employees trying to detain her.116 The court focused on the physical struggle between the robber and the victims:
[The defendant] asserts that her statement, “I have AIDS,” did not threaten or place [the victim] in fear of “any immediate danger” of bodily injury or dеath. However, on the circumstances in which the statement was made, the jury could have reasonably inferred otherwise. [The victims] both testified that [the defendant] had told them that she had AIDS as they were engaged in a protracted, physical struggle with [the defendant] to prevent her from escaping the store. According to [the victim], at one point during the struggle, they were “wrestling on the ground” with [the defendant], and the jury could have reasonably inferred from this and other evidence (including the 911 call in which [the defendant] can be heard yelling and screaming in the background) that [the defendant] was behaving in a violent manner as the men were holding onto her. This violent behavior, the jury could have further inferred, inсluded not only [the defendant] “swinging and kicking” at the men but also, according [the victim‘s] statement to the dispatcher during the 911 call, attempting to bite them.117
The physical struggle in Martin, in which the defendant swung, kicked, struck, and attempted to bite the victims, satisfies Stokeling‘s definition of physical force.118 And threatening to transmit a deadly disease falls under the distinction between direct and indirect force that this court eliminated in Reyes-Contreras.
Burris has not established a “realistic probability” that Texas would apply its robbery statute to cover conduct that is not capable of causing physical pain or injury.119 And, as we have explained, the Stokeling Court
expressly rejected Burris‘s contention that minor uses of force do not qualify as physical force under the
We hold that
Therefore, causing bodily injury under Texas law requires more force than is necessary to overcome a victim‘s resistance, and Texas robbery-by-injury requires force “capable of causing physical pain or injury to another person.”124
D. Robbery-by-Threat
Finally, we conclude that
bodily injury requires the use of physical force, threatening to cause imminent bodily injury similarly requires the “attempted use, or threatened use of physical force.”126
IV. CONCLUSION
We AFFIRM Burris‘s sentence.
JACQUES L. WIENER, JR.
UNITED STATES CIRCUIT JUDGE