United States v. Latroy Burris , 920 F.3d 942 ( 2019 )

Case: 17-10478 Document: 00514910195 Page: 1 Date Filed: 04/10/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-10478
FILED
April 10, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
LATROY LEON BURRIS,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before WIENER, GRAVES, and HO, Circuit Judges.
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
1 United States v. Burris, 896 F.3d 320 (5th Cir. 2018), opinion withdrawn, 908 F.3d
152 (5th Cir. 2018) (per curiam).
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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 After
the en banc court decided Reyes-Contreras, the Supreme Court decided
Stokeling v. United States, which held that Florida robbery qualified as a crime
of violence under the ACCA. 3 The parties filed supplemental briefs addressing
Reyes-Contreras and Stokeling.
Those cases apply to Burris’s sentence and govern the outcome of this
case. We hold that robbery under Texas Penal Code § 29.02(a) requires the
“use, attempted use, or threatened use of physical force” and affirm Burris’s
increased sentence under the ACCA.
I. FACTS AND PROCEEDINGS
In July 2016, Burris pleaded guilty to (1) being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and (2) possession with intent to
distribute a controlled substance, under 21 U.S.C. § 841(a)(1) & (b)(1)(C). 4 The
presentence investigation report (PSR) determined that Burris was an armed
career criminal under 18 U.S.C. § 924(e), viz., the ACCA. A defendant is an
armed career criminal if he (1) is convicted of violating § 922(g), as Burris was
by virtue of his guilty plea, and (2) has three prior convictions for violent
felonies or serious drug offenses. 5 If a defendant meets these criteria, he is
subject to a minimum sentence of fifteen years imprisonment. 6
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
2 910 F.3d 169 (5th Cir. 2018) (en banc).
3 Stokeling v. United States, 139 S. Ct. 544 (2019).
4 The facts of Burris’s instant offenses are not relevant to the issue on appeal, which
concerns only his prior Texas state court convictions.
5 18 U.S.C. § 924(e)(1).
6 Id.
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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.
The panel majority previously held that Burris’s conviction for simple
robbery was not a violent felony under the ACCA. 10 The government moved for
rehearing en banc, and we withdrew our opinion pending the en banc court’s
decision in Reyes-Contreras. 11 After that, the Supreme Court decided Stokeling
v. United States, which considered a similar issue to the one presented here.
The parties filed supplemental briefing addressing those cases.
7 Burris does not appear to dispute that the 2012 conviction for
manufacturing/delivering a controlled substance is a serious drug offense under the ACCA.
8 United States v. Lerma, 877 F.3d 628, 631, 635 (5th Cir. 2017) (explaining that
aggravated robbery is divisible and the defendant’s aggravated robberies involved robbery-
by-threat and using and exhibiting a deadly weapon). Burris was convicted of the same type
of aggravated robbery.
9 He does, however, preserve this argument for further review.
10 Burris, 896 F.3d 320.
11 Burris, 908 F.3d 152.
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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 § 29.02(a) of the Texas Penal Code as follows:
A person commits an offense if, in the course of committing
theft . . . and with intent to obtain or maintain control of the
property, he:
12 United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008).
13 18 U.S.C. § 924(e)(2)(B).
14 135 S. Ct. 2551 (2015).
15 United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007).
16 Samuel Johnson, 135 S. Ct. at 2557.
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(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
§ 29.02(a) is divisible or indivisible 18—that is, whether robbery-by-injury and
robbery-by-threat are (a) different crimes or (b) a single crime that can be
committed by two different means. 19
If § 29.02(a) is indivisible, we “focus solely on whether the elements of
the crime of conviction” include the use of force. 20 This focus on the elements
of the offense of conviction is known as the “categorical approach.” 21 Under that
approach, if the least culpable conduct covered by either robbery-by-injury or
robbery-by-threat requires the use, attempted use, or threatened use of
physical force, Texas robbery is a violent felony. 22
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
17 TEX. PENAL CODE ANN. § 29.02(a).
18 Cf. United States v. Garza, No. 2:04-CR-269, 2017 WL 318861, at *3 (S.D. Tex. Jan.
23, 2017) (implicitly characterizing robbery as a divisible statute by using the “modified
categorical approach”); United States v. Roman, No. CR H-92-160, 2016 WL 7388388, at *3
(S.D. Tex. Dec. 20, 2016) (characterizing the robbery statute as divisible); United States v.
Fennell, No. 3:15-CR-443-L (01), 2016 WL 4491728, at *5 (N.D. Tex. Aug. 25, 2016),
reconsideration denied, No. 3:15-CR-443-L (01), 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016),
and aff’d, 695 F. App’x 780 (5th Cir. 2017) (appearing to avoid the issue by holding that the
robbery statute was not a violent felony “even applying the categorical approach”).
19 See Lerma, 877 F.3d at 631.
20 Id. (citing Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)).
21 Id.
22 See Stokeling, 139 S. Ct. at 556 (Sotomayor, J., dissenting).
23 Id.
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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 § 29.02(a) is divisible, we use the “‘modified
categorical approach,’ and look to a ‘limited class of documents,’ such as the
indictment, jury instructions, and plea agreements and colloquies to determine
the crime of conviction.” 26 “Those sources may be used not to locate facts
supporting a [crime-of-violence] enhancement, but only ‘as a tool to identify the
elements of the crime of conviction.’” 27 Under that approach, we first determine
the specific subsection under which Burris was convicted and then consider
whether that offense “has as an element the use . . . of . . . force.” 28
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 pleaded guilty
24 Reyes-Contreras, 910 F.3d at 184 & n.35 (quoting Moncrieffe v. Holder, 569 U.S. 184,
191 (2013)).
25 Id. at 184–85 (quoting United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir.
2017) (en banc)).
26 Id. at 175 (quoting Mathis, 136 S. Ct. at 2249).
27 Id. (quoting Mathis, 136 S. Ct. at 2253).
28 Id. (quoting U.S.S.G. § 2L1.2 cmt. 1(B)(iii)).
29 Id. (noting the “general rule that we cannot use an indictment to narrow the statute
of conviction if the indictment is for a crime different from the crime stated in the judgment
of conviction”).
30 Id. at 179.
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to robbery-by-injury under § 29.02(a)(1) rather than robbery-by-threat under
29.02(a)(2).
We need not decide whether § 29.02(a) is divisible here, however, because
our conclusion under either approach would be the same. As we explain in
greater detail below, we hold that § 29.02(a)(1), robbery-by-injury,
categorically requires the use of physical force. Section 29.02(a)(2), robbery-by-
threat, requires “threaten[ing] or plac[ing] another in fear of” imminent bodily
injury or death. Causing bodily injury requires the use of physical force, so
threatening or placing another in fear of imminent bodily injury likewise
requires the “attempted use, or threatened use of physical force.” 31
C. Robbery-by-Injury
We first address robbery-by-injury. Section 29.02(a)(1) requires that a
defendant “cause[] bodily injury.” Texas defines “bodily injury” as “physical
pain, illness, or any impairment of physical condition.” 32 We must determine
whether “caus[ing] bodily injury” under Texas law requires the use of physical
force under federal law. This involves two issues: (1) the relationship between
causing bodily injury and the use of physical force and (2) the degree of force
necessary to qualify as a violent felony under the ACCA’s elements clause. The
en banc court resolved the first issue in Reyes-Contreras, and the Supreme
Court resolved the second issue in Stokeling.
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
31 18 U.S.C. § 924(e)(2)(B)(i).
32 TEX. PENAL CODE ANN. § 1.07(a)(8).
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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, knowingly, or recklessly cause[] bodily injury” or threaten to do
so—was an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C). 36 Aggravated
felonies also must have an element of “use, attempted use, or threatened use
of physical force.” 37 We held that Texas’s assault offense did not have use or
threatened use of physical force as an element. 38 The panel approvingly cited
Vargas-Duran’s explanation that “[t]here is . . . a difference between a
defendant’s causation of an injury and the defendant’s use of force.” 39 The
panel listed examples of acts that could cause bodily injury without physical
force: “making available to the victim a poisoned drink while reassuring him
33 356 F.3d 598, 600 (5th Cir. 2004) (en banc) (citation omitted). Although this
Guideline is not part of the ACCA, we have explained that “[b]ecause of the similarities
between U.S.S.G. §§ 2L1.2(b)(1)(A), 4B1.2(a), 4B1.4(a), and 18 U.S.C. § 924(e), we treat cases
dealing with [the elements clauses of] these provisions interchangeably.” United States v.
Moore, 635 F.3d 774, 776 (5th Cir. 2011) (citation omitted).
34 Vargas-Duran, 356 F.3d at 606.
35 Id.
36 468 F.3d 874, 877–78 (5th Cir. 2006).
37 Id. at 878. This “aggravated felony” definition incorporates a statutory provision
using the term “crime of violence,” which is different from the “crime of violence” provision in
Vargas-Duran. See id.; Vargas-Duran, 356 F.3d at 605.
38 Villegas-Hernandez, 468 F.3d at 882.
39 Id. at 880 (quoting Vargas-Duran, 356 F.3d at 606) (omission in original).
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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 18 U.S.C. § 922(g)(9), which prohibits the
possession of firearms by anyone convicted of a “misdemeanor crime of
domestic violence” (MCDV). A MCDV is defined using identical language to the
ACCA: It “has, as an element, the use or attempted use of physical force.” 43 But
the Court distinguished “physical force” in the MCDV context from “physical
force” in the ACCA. The Court held that in the context of a MCDV, “physical
force” is defined as “the common-law meaning of ‘force,’” which can be satisfied
by mere offensive touching. 44 In making this distinction, the Court relied on
40 Id. at 879.
41 Curtis Johnson v. United States, 559 U.S. 133, 139 (2010) (emphasis in original).
42 Id. at 140.
43 18 U.S.C. § 921(a)(33)(A)(ii).
44 United States v. Castleman, 572 U.S. 157, 168 (2014).
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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 context.” 45
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]hether 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
45 Id. at 164–65 (quoting Curtis Johnson, 559 U.S. at 140).
46 Id. at 169, 167–71.
47 Id. at 169.
48 Id. at 170.
49 Id. at 167. The Court added:
The Courts of Appeals have generally held that mere offensive touching cannot
constitute the “physical force” necessary to a “crime of violence,” just as we held
in [Curtis] Johnson that it could not constitute the “physical force” necessary
to a “violent felony.” Nothing in today’s opinion casts doubt on these holdings,
because—as we explain—“domestic violence” encompasses a range of force
broader than that which constitutes “violence” simpliciter.
Id. at 164 n.4 (citations omitted).
50 Id. at 170.
51 Voisine v. United States, 136 S. Ct. 2272, 2276–77 (2016).
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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 context 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” force 56 was compatible with
Castleman, (3) whether this court’s previous requirement of “bodily contact” to
qualify as a crime-of-violence 57 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 survived Voisine, and (5) whether
this court’s previous precedent that imposed a distinction between “causing
injury” and the “use of force” 59 survived Castleman and Voisine.
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 identifying
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
52 Id.
53 Id. at 2278–80.
54 Id. at 2278–79.
55 See United States v. Rico–Mejia, 859 F.3d 318, 321–23 (5th Cir. 2017) (“By its
express terms, Castleman’s analysis is not applicable to the physical force requirement for a
crime of violence[.]”).
56 See id.
57 See United States v. Calderon-Pena, 383 F.3d 254, 260–61 (5th Cir. 2004) (en banc).
58 See Vargas-Duran, 356 F.3d at 599 (emphasis added).
59 See id. at 606 (“There is also a difference between a defendant’s causation of an
injury and the defendant’s use of force.”).
60 Reyes-Contreras, 910 F.3d at 182.
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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 conduct.” 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
61 Id. at 183.
62 Id. (emphasis added).
63 Id.
64 Id.
65 See id. at 183–85; see also United States v. Haight, 892 F.3d 1271, 1280–81 (D.C.
Cir. 2018) (“The statutory provision at issue in Voisine contains language nearly identical to
ACCA’s violent felony provision: Both penalize defendants convicted of crimes that have ‘as
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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
The combination of (1) Castleman’s holding that “the knowing or
intentional causation of bodily injury necessarily involves the use of physical
force,” 68 (2) Reyes-Contreras’s holding that Castleman is not limited to the
MCDV context, 69 (3) Voisine’s holding that reckless conduct constitutes the use
of physical force, 70 and (4) Reyes-Contreras’s holding that Castleman and
Voisine eliminated the “unnatural separation of causing injury from the use of
force” 71 governs the outcome here. Section 29.02(a)(1) prohibits the reckless
causation of bodily injury. Castleman, Voisine, and Reyes-Contreras confirm
that reckless conduct constitutes the “use” of physical force under the ACCA,
and that the distinction between causing an injury and the use of force is no
longer valid. Causing bodily injury under § 29.02(a)(1) necessarily requires the
use of physical force.
c. Retroactivity
Faced with this change in precedent, Burris contends that Voisine and
Reyes-Contreras should not apply retroactively. He insists that those decisions
an element’ the ‘use’ of ‘physical force.’ 18 U.S.C. §§ 921(a)(33)(A)(ii), 924(e)(2)(B)(i). So
Voisine’s reasoning applies to ACCA’s violent felony provision.”).
66 E.g., United States v. Mendez-Henriquez, 847 F.3d 214, 220–22 (5th Cir. 2017), cert.
denied, 137 S. Ct. 2177 (2017) (applying Voisine’s holding in the context of a “crime of
violence” under the sentencing guidelines).
67 See Voisine, 136 S. Ct. at 2279 (“But the word ‘use’ does not demand that the person
applying force have the purpose or practical certainty that it will cause harm, as compared
with the understanding that it is substantially likely to do so. Or, otherwise said, that word
is indifferent as to whether the actor has the mental state of intention, knowledge, or
recklessness with respect to the harmful consequences of his volitional conduct.”).
68 Castleman, 572 U.S. at 169.
69 Reyes-Contreras, 910 F.3d at 180–82
70 Voisine, 136 S. Ct. at 2279.
71 Reyes-Contreras, 910 F.3d at 183.
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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 application 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
statutory 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 application of that decision does not violate due
72 Rogers v. Tennessee, 532 U.S. 451, 460 (2001) (“The Ex Post Facto Clause, by its own
terms, does not apply to courts.”).
73 Id.
74 Bouie v. City of Columbia, 378 U.S. 347, 356, 361–62 (1964).
75 Id. at 354 (quoting Smith v. Cahoon, 283 U.S. 553, 61 (1931)).
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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 § 922(g)(9)’s text, including (1) the
definition of a “misdemeanor crime of violence” that “contain[ed] no exclusion
for convictions based on reckless behavior” 80 and (2) the “ordinary meaning” of
the word “use,” as the Court had interpreted that term in Castleman. 81
Voisine is consistent with the ACCA’s statutory language and lacks the
problems identified in Bouie. We agree with the other circuits that have
applied Voisine retroactively 82 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
76 United States v. Gomez Gomez, 917 F.3d 332, 334 (5th Cir. 2019).
77 Id.
78 Id.
79 Voisine, 136 S. Ct. at 2277–78.
80 Id. at 2280.
81 Id. at 2279 (citing Castleman, 572 U.S. at 170–71).
82 See Haight, 892 F.3d at 1281 (applying Voisine to an ACCA predicate offense
committed before Voisine was decided); United States v. Pam, 867 F.3d 1191, 1207–08 (10th
Cir. 2017) (applying Voisine to an ACCA predicate offense committed before Voisine was
decided).
83 See Voisine, 136 S. Ct. at 2280 (“The relevant text thus supports prohibiting
petitioners, and others with similar criminal records, from possessing firearms.”).
84 Our recent description of Voisine as “clarify[ing] long-debated interpretation[s]” of
sentencing-enhancement issues bolsters this conclusion. Mendez-Henriquez, 847 F.3d at 218.
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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 whether
minor injuries, such as a “cut, abrasion, [or] bruise . . . . necessitate violent
force, under [Curtis] Johnson’s definition of that phrase.” 88 The Supreme Court
recently answered that question in Stokeling.
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
85 See Reyes-Contreras, 910 F.3d at 182 & n.28.
86 Stokeling, 139 S. Ct. at 555.
87 Curtis Johnson, 559 U.S. at 140.
88 Castleman, 572 U.S. at 170.
89 Stokeling, 139 S. Ct. at 550.
90 Id. at 551.
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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 noted 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
91 Id.
92 Id. at 553 (quoting Curtis Johnson, 559 U.S. at 140).
93 Id. at 554.
94 Id. at 553.
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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 degree 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.
95 Id. at 554 (citations omitted).
96 Curtis Johnson, 559 U.S. at 140.
97 Id. at 139.
98 Stokeling, 139 S. Ct. at 554.
99 Id.
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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 the 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 not require “any particular degree of
likelihood or probability that the force used will cause pain or injury; only
potentiality.” 105 Force that includes the “potentiality” of causing physical pain
or injury encompasses conduct “reasonably certain” to place someone in fear of
bodily injury. The defendant in Howard entered a store wielding a rifle. That
100 333 S.W.3d 137, 138 (Tex. Crim. App. 2011).
101 Id.
102 Id.
103 Id. at 140.
104 Id.
105 Stokeling, 139 S. Ct. at 554.
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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 Texas Penal Code §
29.03(a)(2), that is, threatening someone with imminent bodily injury or death,
or placing someone in fear of such, while using or exhibiting a deadly weapon
in the course of committing theft with intent to obtain or maintain control of
the property, has as an element the threatened use of physical force against
the person of another.” 106
Finally, Texas caselaw indicates that robbery-by-injury does involve a
physical confrontation 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
106 Lerma, 877 F.3d at 636.
107 Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989) (en banc) (emphasis
added).
108 Tex. Penal Code § 1.07(a)(8).
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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
Burris cites Texas cases affirming convictions for assaultive offenses
involving the transmission of HIV 114 and a case upholding an assault
conviction when the defendant caused a first responder to “‘feel not right’ and
‘to sweat very profusely more than normal.’” 115 Although these cases use the
statutory term “bodily injury,” they are aggravated-assault and arson cases.
They therefore are not helpful in determining whether there is a “realistic
possibility” that Texas would apply its robbery statute to force that is not
capable of causing physical pain or injury under the ACCA.
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
109 Lane, 763 S.W.2d at 786.
110 Id. at 787.
111 Id. at 786–87 (citing Lewis v. State, 530 S.W.2d 117, 117–18 (Tex. Crim. App.
1975)); see Gay v. State, 235 S.W.3d 829, 833 (Tex. App.—Fort Worth 2007) (indicating that
“pinch[ing]” or “rubb[ing]” a child’s face amounted to bodily injury).
112 Lane, 763 S.W.2d at 787; Lewis, 530 S.W.2d at 118.
113 See TEX. PENAL CODE ANN. § 1.07 (a)(8) (“‘Bodily injury’ means physical pain,
illness, or any impairment of physical condition.”); Gay, 235 S.W.3d at 834 (Dauphinot, J.,
dissenting) (“[I]f the actor causes physical pain, it is not necessary that he also cause
impairment of the [victim’s] physical condition [to cause bodily injury]. Similarly, if the actor
causes impairment of the [victim’s] physical condition, he is not required to cause physical
pain as well.”).
114 Billingsley v. State, 2015 WL 1004364, at *2 (Tex. App.—Eastland Feb. 27, 2015);
Padieu v. State, 2010 WL 5395656, at *1 (Tex. App.—Dallas Dec. 30, 2010).
115 In re M.V., Jr., 2009 WL 3163522, at *2 (Tex. App.—Corpus Christi Oct. 1, 2009,
no pet.).
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“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 death. 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, included 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
116 No. 03-16-198-CR, 2017 WL 5985059 (Tex. App.—Austin Dec. 1, 2017, no pet.).
117 Id. at *6.
118 See Stokeling, 139 S. Ct. at 554 (concluding that biting satisfies the ACCA’s
elements clause).
119 Reyes-Contreras, 910 F.3d at 184–85.
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expressly rejected Burris’s contention that minor uses of force do not qualify
as physical force under the ACCA. 120
We hold that § 29.02(a)(1) requires more force than Florida robbery.
Florida robbery requires the “force necessary to overcome a victim’s physical
resistance.” 121 Texas robbery, in contrast, requires that a defendant, in the
course of committing a theft, actually “cause[] bodily injury to another.” 122 In
Stokeling, the Court explained that minor uses of force satisfied this definition,
including (1) seizing another’s watch or purse and using enough force “to break
the chain or guard by which it is attached to the person,” (2) “rudely push him
about, for the purpose of diverting his attention and robbing him,” or (3)
“pull[ing] a diamond pin out of a woman’s hair when doing so tore away hair
attached to the pin.” 123 The Texas cases Burris cites require more force than
these examples.
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 § 29.02(a)(2), robbery-by-threat, also has as an
element the attempted or threatened use of physical force. That subsection
criminalizes “intentionally or knowingly threaten[ing] or plac[ing] another in
fear of imminent bodily injury or death.” 125 We have held that § 29.02(a)(1),
robbery-by-injury, requires the use of physical force. It follows that if causing
120 Id.
121 Stokeling, 139 S. Ct. at 553.
122 Tex. Penal Code § 29.02(a)(1).
123 Stokeling, 139 S. Ct. at 550.
124 Curtis Johnson, 559 U.S. at 140.
125 Tex. Penal Code § 29.02(a)(2).
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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.
126 18 U.S.C. § 924(e)(2)(B)(1).
24