United States v. Anthony Thomas , 698 F. App'x 790 ( 2017 )

Case: 16-11734 Document: 00514196212 Page: 1 Date Filed: 10/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11734
Fifth Circuit
FILED
Summary Calendar October 16, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ANTHONY LAMOND THOMAS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CR-441-1
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Anthony Lamond Thomas appeals the 180-month sentence imposed
following his guilty plea conviction for possessing with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and possession of a
firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(e). Thomas argues
that the district court erred by sentencing him pursuant to the provisions of
the Armed Criminal Career Act (ACCA), § 924(e)(1), based on his two prior
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-11734
convictions for possession with intent to deliver cocaine, one prior conviction
for delivery of cocaine, and one prior conviction for robbery.
We review de novo the district court’s legal application of the ACCA. See
United States v. Hawley, 516 F.3d 264, 269 (5th Cir. 2008). Under the ACCA,
a defendant, like Thomas, who is convicted of possession of a firearm by a felon
pursuant to § 922(g) is subject to enhanced punishment if he has at least three
prior convictions for a “serious drug offense” or a “violent felony” committed on
different occasions. § 924(e)(1).
Thomas argues that his three prior drug convictions under Section
481.112 of the Texas Health and Safety Code, which prohibits the knowing
manufacture, delivery, or possession with intent to deliver a controlled
substance, are not “serious drug offenses” for purposes of the ACCA because
the Texas statute can be violated by an offer to sell, which is not included in
the ACCA’s definition of a “serious drug offense.” He recognizes that we
rejected this argument in United States v. Vickers, 540 F.3d 356, 364-65 (5th
Cir. 2008), but he contends that Vickers has been undermined by Johnson v.
United States, 135 S. Ct. 2551, 2559, 2563 (2015), and Torres v. Lynch, 136 S.
Ct. 1619 (2016).
The ACCA’s definition of a “serious drug offense,” § 924(e)(2)(A), was not
at issue in either Johnson or Torres, and those cases do not represent an
intervening change in the law regarding whether the Texas drug offenses at
issue qualify as serious drug offenses under the ACCA and do not––either
explicitly or implicitly––overrule our prior precedent. See Vickers, 540 F.3d at
364-66; see also United States v. Winbush, 407 F.3d 703, 706-08 (5th Cir. 2005).
Thomas’s reliance on United States v. Tanksley, 848 F.3d 347 (5th Cir.),
supplemented by 854 F.3d 284 (5th Cir. 2017), and United States v. Renteria-
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No. 16-11734
Martinez, 847 F.3d 297 (2017), pet. for cert. filed (June 20, 2017) (No. 16-9608),
is unavailing for the same reason.
Accordingly, because Thomas’s three prior drug convictions are “serious
drug offenses,” the district court did not err in sentencing Thomas under the
ACCA based on those convictions. In light of this, we need not address whether
Thomas’s Texas conviction for robbery is a violent felony under the ACCA.
The judgment of the district court is AFFIRMED.
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