United States v. Michael Herrold ( 2017 )

Case: 14-11317 Document: 00513948243 Page: 1 Date Filed: 04/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-11317 FILED
April 11, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
MICHAEL HERROLD,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-225-1
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
On November 5, 2012, Dallas police 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 18 U.S.C. § 922(g)(1), a charge to which he
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-11317 Document: 00513948243 Page: 2 Date Filed: 04/11/2017
No. 14-11317
subsequently pled guilty without a plea agreement. Under the enhanced
penalty provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), Herrold faced a statutory minimum of fifteen years’ imprisonment.
Herrold’s previous felony offenses were: (1) possession of lysergic acid
diethylamide (“LSD”) with intent to deliver, (2) burglary of a habitation, and
(3) burglary of a building, all under Texas law. Herrold argued to the district
court that none of his prior convictions qualified as predicate 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 of ten years. 1 He timely appealed his sentence.
We held that all three of Herrold’s convictions qualified as ACCA
predicates and affirmed his sentence. 2 Herrold appealed to the United States
Supreme Court, which granted certiorari, vacated our judgment, and
remanded for reconsideration in light of Mathis v. United States. 3 On remand,
we will affirm.
Herrold’s supplemental briefing on remand concedes that his conviction
for possession of LSD with intent to deliver is unaffected by Mathis. His
argument instead centers on his two prior burglary convictions. First, he
argues that his conviction for burglary of a habitation is not an ACCA predicate
because Mathis makes clear that burglary statutes like Texas’s, which define
“habitation” to include recreational vehicles, 4 are broader than generic
burglary. Second, he argues neither of his burglary convictions is an ACCA
predicate because Mathis compels the conclusion that Texas’s burglary
provision, Texas Penal Code § 30.02(a), is indivisible.
1 18 U.S.C. § 924(a)(2).
2 United States v. Herrold, 813 F.3d 595 (5th Cir. 2016).
3 Herrold v. United States, 137 S. Ct. 310 (2016) (citing 136 S. Ct. 2243 (2016)).
4 Tex. Penal Code § 30.01(1).
2
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No. 14-11317
Herrold’s arguments are foreclosed. In United States v. Uribe, this court
held that Texas Penal Code § 30.02(a) remained divisible after Mathis. 5
Herrold admits that Uribe forecloses his second argument. With respect to his
first argument, Uribe concerned a conviction for Texas burglary of a habitation,
and the court held that such a conviction continued to support a Sentencing
Guidelines enhancement as generic burglary after Mathis, which means that
Texas burglary of a habitation also continues to support an ACCA
enhancement as generic burglary after Mathis. 6 This forecloses Herrold’s first
argument.
****
Upon remand, we find that Uribe mandates the result that we originally
reached. 7 We again affirm the sentence of the district court.
5 838 F.3d 667, 671 (5th Cir. 2016).
6 Id.7 Uribe’s petition for rehearing en banc was denied without a poll, and the Supreme
Court denied his petition for certiorari. Uribe v. United States, No. 16-7969, 2017 WL 661924(U.S. Mar. 20, 2017).
3