UNITED STATES of America, Plaintiff-Appellee, v. Michael HERROLD, Defendant-Appellant.
No. 14-11317.
United States Court of Appeals, Fifth Circuit.
Feb. 12, 2016.
815 F.3d 595
must usually request an accommodation to commence an interactive process that considers that possibility, he is excused from doing so in а situation like this one in which the employer was unquestionably aware of the disability and had received a report from its own doctor recommending accommodations. Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir.1996) (stating that a plaintiff bears the responsibility of requesting an accommodation only when “the disability, resulting limitations, and necessary reasonable accommodations are not open, obvious, and apparent to the employer“). And looking at the facts in Cannon‘s favor, there is little argument to be made that JFS engaged in the interactive process the law requires. It rescinded the offer almost immediately after learning of Cannon‘s impairment without further exploration of his impairment or even waiting for his responses to the questions posed by the Occupational Health Department.
* * *
We REVERSE the grant of summary judgment and REMAND this case.
James Matthew Wright (argued), James Matthew Wright, Assistant Federal Public Defender, Lauren Anita Woods, Federal Public Defender‘s Office, Amarillo, TX, for Defendant-Appellant.
Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge.
On November 5, 2012, Dallas law enforcement pulled over Michael Herrold as part of a routine traffic stop. During the encounter, the officers observed a handgun in plain view. Because he was a convicted felon, Herrold‘s possession of the firearm was illegal under
Herrold‘s previous felony offenses included: (1) possession of lysergic acid diethylamide (“LSD“) with intent to deliver, (2) burglary of a building, and (3) burglary of a habitation. In the court below, Herrold argued that none of his prior convictions qualify as рredicate offenses under the ACCA. The district judge disagreed, and sentenced Herrold to 211 months in prison. Without the enhancement, Herrold would have faced a maximum penalty
This Court reviews the application of an ACCA sentеncing enhancement de novo.2 Because we hold that each of Herrold‘s prior offenses qualify as predicate offenses under ACCA, we affirm.
I.
First, Herrold argues that his conviction for burglary of a building3 should not qualify as generic burglary, one of the enumerated predicate offenses in ACCA.4 But his argument is foreclosed by our holding in Conde-Castaneda, in which we held that burglary of a building under
II.
Herrold next argues that his conviction for burglary of a habitation cannot qualify as a predicate offense under ACCA because Texas law defines “habitation” to include “vehicles adapted for overnight use.”7 This definition, Herrold claims, covers offenses outside the scope of generic burglary, defined by the Supreme Court in Taylor v. United States as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”8 Herrold further contends that this Court‘s decision in United States v. Silva9 does not foreclose his argument. We disagree.
In Silva, this Court affirmed the defendant‘s enhanced sentence under ACCA
[t]he Supreme Court in Taylor stated that “if the defendant was convicted of burglary in a State where the generic definition has been adopted, with minor variations in terminology, then the trial court need find only that the state statute corresponds to the generic meaning of burglary.” ... Section 30.02 of the Texas Penal Code is a generic burglary statute, punishing nonconsensual entry into a building with intent to commit a crime. Under the reasoning of Taylor, Silva‘s burglary convictions clearly indicate that he was found guilty of all the essential elements comprising generic burglary. Accordingly, Silva‘s three Texas burglary convictions were sufficient predicate convictions for enhancement of his sentence pursuant to
18 U.S.C. § 924(e) .11
Our reasoning admittedly never explicitly stated which provision of 30.02 we were classifying as generic burglary.12 Section 30.02(a) describes three different courses of conduct:
(a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or аny portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.
Under Taylor, generic burglary requires both entry and specific intent, which are not present in subsections 2 and 3, respectively.13 Subsection 1 is the only provision that includes bоth. As we later clarified, Silva “could have only been referring to § 30.02(a)(1)” in holding that Texas burglary qualifies as generic burglary.14 This Court has consistently affirmed this interpretation of Silva in a series of unpublished opinions.15
Herrold maintains that the court in Silva never considered the argument that Texas‘s definition of habitation — by including vehicles adapted for the overnight аccommodation of persons — broadens the statute beyond generic burglary. He rea- sons
III.
Finally, Herrold argues that his conviction for possession of LSD with intent to deliver is not “a serious drug offense” under ACCA. We disagree.
The ACCA definition of a “sеrious drug offense” includes “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.”18 In 1992, Herrold pled guilty to “unlawful possession with intent to deliver a controlled substance” under
Herrold‘s argument is unpersuasive. “The word ‘involving’ has expansive connotations,”20 and by using it, “Congress intended the category of convictions considered a ‘serious drug offense’ to be expansive.”21 For example, in United States v. Vickers, we held that a conviction for “delivery of a controlled substance” was a serious drug offense,22 despite the fact that someone could have been guilty by “solely ... offering to sell a controlled substance” without possessing any drugs.23 We reasoned that “[b]eing in the drug marketplace as a seller — even if, hypothet- icаlly,
Like Vickers, Herrold was in the drug market as a seller. The next step in his conduct, one he intended to take, was the completion of a drug transаction. The least culpable conduct covered by Herrold‘s statute of conviction is arguably closer to the distribution chain than Vickers‘s because Herrold necessarily possessed the drugs he intended to distribute. Even if hе never offered the drugs for sale, Herrold‘s conduct “involve[d] ... possessing with intent to ... distribute.”25 His conviction is therefore a serious drug offense under ACCA.
AFFIRMED.
PATRICK E. HIGGINBOTHAM
UNITED STATES CIRCUIT JUDGE
UNITED STATES of America, Plaintiff-Appellant v. Kenneth BOWEN; Robert Gisevius; Robert Faulcon; Anthony Vallavaso; Arthur Kaufman, Defendants-Appellees.
No. 13-31078.
United States Court of Appeals, Fifth Circuit.
Feb. 23, 2016.
Elizabeth Dorsey Collery, Esq. (argued), Barbara Bernstein, Thomas Evans Chandler, Trial Attorney, Jessica Dunsay Silver, Christopher Jackson Smith, Trial Attorney, Lisa J. Stark, U.S. Department of Justice, Washington, DC, Kevin G. Boitmаnn, Assistant, Theodore R. Carter, III, Assistant U.S. Attorney, U.S. Attorney‘s Office, New Orleans, LA, for Plaintiff-Appellant.
Robin Elise Schulberg, Attorney, Covington, LA, Christopher Albert Aberle, Mandeville, LA, Lindsay Alexis Larson, III, Esq., King, Krebs & Jurgens, P.L.L.C., William P. Gibbens, Esq. (argued), Schonekas, Evans, McGoey & McEachin, L.L.C., Ian Lewis Atkinson, Esq., Attorney, Schonekas, Evans, McGoey & McEachin, L.L.C., Timothy Allison Meche, Attorney, Stephen D. London, New Orleans, LA, for Defendants-Appellees.
Richard C. Stanley, Esq., Stanley, Reuter, Ross, Thornton & Alford, L.L.C., New Orleans, LA, for Intervenor Michael Magner.
Before JONES, CLEMENT, and PRADO, Circuit Judges.*
ON PETITION FOR REHEARING EN BANC.
PER CURIAM:
Treating the petitiоn for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted
* Judge Stephen A. Higginson is recused in this case.