United States v. Clark ( 2022 )

Case: 17-11079 Document: 00516471053 Page: 1 Date Filed: 09/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 14, 2022
No. 17-11079 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Glnyzo Clark,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-109-1
Before Jones, Ho, and Wilson, Circuit Judges.
Per Curiam:*
Glnyzo Clark pleaded guilty to being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). This offense typically carries a
maximum penalty of ten years’ incarceration. The presentence report
(PSR), however, recommended sentencing Clark pursuant to the Armed
Criminal Career Act (ACCA), which would increase Clark’s penalty to a
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 17-11079
minimum of fifteen years’ incarceration. The district court declined to do
so—finding that Clark’s prior convictions fail to satisfy the requirements of
the ACCA. We disagree. We thus vacate Clark’s sentence and remand for
resentencing.
I.
A defendant may be sentenced under the ACCA if he or she has at
least three prior convictions that each qualify as a “violent felony” or
“serious drug offense.” 18 U.S.C. § 924(e)(1). In relevant part, a “serious
drug offense” is one “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.”
Id. § 924(e)(2)(A)(ii). And a “violent felony” is “any crime punishable by
imprisonment for a term exceeding one year,” that “has as an element the
use, attempted use, or threatened use of physical force against the person of
another.” Id. § 924(e)(2)(B)–(B)(i).
Four of Clark’s prior convictions are relevant on appeal: (1)
aggravated assault by threat of bodily injury (case no. F-0720695); (2)
aggravated assault by causing bodily injury (case no. F-0624885); (3) burglary
of a habitation (case No. F-0673371); and (4) possession with intent to
distribute a controlled substance (case no. F-0673218).
“This court reviews whether a prior conviction qualifies as an ACCA
predicate de novo.” United States v. Prentice, 956 F.3d 295, 298 (5th Cir.),
cert. denied, 141 S. Ct. 920 (2020).
We consider each prior conviction in turn.
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II.
Aggravated Assault.
We consider two of Clark’s prior convictions for aggravated assault
and find that one of them qualifies as a predicate under the ACCA.
Let’s begin with aggravated assault by threat of bodily injury. Under
Texas Penal Code § 22.01(a)(2), this offense can only be committed
intentionally or knowingly. We have held that intentionally or knowingly
threatening another with imminent bodily injury is a “crime of violence”
under 18 U.S.C. § 16(a). See, e.g., United States v. Torres, 923 F.3d 420, 426
(5th Cir. 2019). And “we construe the elements clauses of section 16 and the
ACCA congruently.” United States v. Griffin, 946 F.3d 759, 762 n.2 (5th Cir.
2020). Accordingly, Clark’s conviction for aggravated assault by threat of
bodily injury necessarily constitutes a violent felony under the ACCA. See
United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015) (finding no plain
error where the district court found the same).
But aggravated assault by bodily injury does not qualify. This offense
can be committed with a mens rea of recklessness. See Tex. Penal Code
§ 22.01(a)(1). And as the Supreme Court held in Borden v. United States,
“[o]ffenses with a mens rea of recklessness do not qualify as violent felonies
under [the] ACCA.” 141 S. Ct. 1817, 1834 (2021).
So for Clark to be sentenced under the ACCA, his convictions for
burglary and possession with intent to distribute must both qualify as
predicates. 18 U.S.C. § 924(e)(1).
III.
Burglary of a Habitation.
The ACCA’s definition of “violent felony” explicitly includes generic
burglary. 18 U.S.C. § 924(e)(2)(B)(ii). But Texas Penal Code § 30.02(a)
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contains three subsections by which a defendant can commit burglary in
Texas. At the time of Clark’s sentencing, our court had held that only a
violation of § 30.02(a)(1) constitutes generic burglary under the ACCA. See
United States v. Herrold (Herrold I), 813 F.3d 595, 598–99 (5th Cir.), vacated,
137 S. Ct. 310 (2016). Because Clark’s charging documents were ambiguous
as to which provision he was convicted under, the government conceded, and
the district court held, that his burglary conviction could not serve as an
ACCA predicate.
Then several years later, during the pendency of this appeal, our court
vacated Herrold I. We determined that § 30.02(a) constitutes generic
burglary in its entirety, and thus any § 30.02(a) conviction qualifies as a
predicate under the ACCA. United States v. Herrold (Herrold II), 941 F.3d
173, 182 (5th Cir. 2019).
Clark nonetheless maintains that the government should be precluded
from relying on Herrold II. He argues the government waived or invited any
error in the district court related to his burglary conviction by conceding at
the time of sentencing that the conviction did not qualify as a predicate
offense. This argument fails.
Invited error is a variety of waiver that “generally evince[s] an intent
by the speaker to convince the district court to do something that it would
not otherwise have done.” United States v. Lerma, 877 F.3d 628, 632 (5th
Cir. 2017) (cleaned up). The government’s statement amounted to no more
than an acknowledgement of the state of the law as it existed at the time. It
was neither designed to, nor had the effect of, “convinc[ing] the district court
to do something” it would not have already been dutybound to do. Id.And because we are not bound by the government’s concession, see,
e.g., United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th Cir. 2003), our
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holding in Herrold II resolves this issue: Clark’s prior conviction for burglary
of a habitation qualifies as a predicate under the ACCA.
IV.
Possession with Intent to Distribute a Controlled Substance.
Clark was convicted under Texas Health and Safety Code §
481.112(a), which maintains that “a person commits an offense if [he]
knowingly manufactures, delivers, or possesses with intent to deliver a
controlled substance.”
In United States v. Vickers, we held that the § 481.112 offense
constitutes a “serious drug offense” under the ACCA. 540 F.3d 356, 366
(5th Cir. 2008). The district court claims that ruling was abrogated by our
subsequent holding that a § 481.112 conviction “does not qualify as a
controlled substance offense under the [Sentencing] Guidelines.” United
States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented, 854 F.3d 284(5th Cir. 2017).
But that is not so. For one thing, absent an intervening change in the
law, “one panel of our court may not overturn another panel’s decision.”
Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). For another, the
definition of a “controlled substance offense” under the Sentencing
Guidelines—as addressed in Tanksley—differs from that of a “serious drug
offense” under the ACCA—as addressed in Vickers and at issue here. Our
court acknowledged this critical distinction in Vickers itself, explaining that
“an offense could be found to satisfy the ACCA requirements, while the
same offense would not be sufficient to trigger an enhancement under the
Sentencing Guidelines.” Vickers, 540 F.3d at 366 n.3. And, what’s more,
our court has expressly reaffirmed the holding in Vickers following the
Tanksley decision. See Prentice, 956 F.3d at 299–300.
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Clark also argues that, even if Tanksley did not effectively overrule
Vickers, a recent Supreme Court decision did. In Shular v. United States, the
Supreme Court defined “involving” in the ACCA to mean “necessarily
requir[ing].” 140 S. Ct. 779, 785 (2020). See also Prentice, 956 F.3d at 299
(“We may assume that Shular defined ‘involving’ in the ACCA to mean
‘necessarily requiring.’”).
This is indeed a far narrower definition than the “exceedingly broad”
one applied by our court in Vickers. 540 F.3d at 365 (defining “involving” to
mean “related to or connected with”) (quotations omitted). But our court
has expressly rejected Clark’s argument that Shular consequently abrogated
Vickers’s holding. See Prentice, 956 F.3d at 300. In Prentice, we described how
Shular did more than narrow the definition of “involving”—it also
“broadens the understanding of ‘a serious drug offense’ by focusing on the
underlying conduct.” Id. So while “[t]he precise reasoning of Vickers, i.e., its
interpretation of ‘involving,’ differs from that of Shular and seems at odds
with Shular’s focus on the underlying conduct charged in state offenses. . . .
there is no doubt that the ACCA sentence upheld in Vickers would also be
affirmed under Shular.” Id.
Clark attempts to distinguish Prentice on the ground that he challenges
the delivery prong of the Texas statute, whereas the Prentice court analyzed
the possession-with-intent prong. He claims that the least culpable way to
violate the delivery prong is by making a fraudulent offer to sell a controlled
substance. In support, he points to some of our reasoning in Vickers: “The
intentional offer to sell a controlled substance is the crime; the accused need
not have any drugs to sell or even intend ever to obtain the drugs he is
purporting to sell.” Vickers, 540 F.3d at 365.
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But our court recently considered, and rejected, Clark’s theory of
delivery whereby § 481.112 could potentially be violated by a fraudulent offer
to sell. Ochoa-Salgado v. Garland, 5 F.4th 615, 620–21 (5th Cir. 2021).
“Although Texas courts have sometimes used inconsistent language about
the mens rea necessary to violate § 481.112, Texas appellate courts
consistently conclude that, if a person offers to sell, with no intent to sell
narcotics, but instead the intent to defraud the buyer of his money, that
conduct is not a delivery of controlled substance by offer to sell.” Id. (cleaned
up). Instead, as we explained, Ҥ 481.112 requires an intent to sell, which
mirrors the requisite mens rea under the [Controlled Substances Act], namely
intent to distribute.” Id. at 621.
Applying our holdings in Vickers and Ochoa-Salgado to the present
case, we find that Clark’s prior conviction for possession with intent to
distribute also qualifies as a predicate offense under the ACCA.
***
Because we find that three of Clark’s prior convictions qualify as
predicate offenses under the ACCA, we vacate Clark’s sentence and remand
for resentencing.
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