United States v. Noel Lerma , 877 F.3d 628 ( 2017 )

Case: 16-41467 Document: 00514274190 Page: 1 Date Filed: 12/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41467 FILED
December 14, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff – Appellee,
v.
NOEL LERMA,
Defendant – Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, GRAVES, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
The question presented in this case is whether a conviction under the
Texas aggravated robbery statute, Texas Penal Code § 29.03, qualifies as a
“violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). Concluding that the statute is divisible, and that the crime for which
appellant, Noel Lerma, was convicted previously at least three times is a
“violent felony” under the ACCA, we AFFIRM.
I.
The ACCA provides for a 15-year mandatory minimum term of
imprisonment and a five-year maximum term of supervised release for those
defendants convicted of being a felon in possession of a firearm following three
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prior convictions for a “violent felony.” § 924(e)(1). Absent that sentence
enhancement, the felon-in-possession statute sets a 10-year maximum prison
sentence and a three-year maximum supervised release term. See § 924(a)(2);
18 U.S.C. § 3583(b)(2).
In 1998, Lerma entered into a plea agreement with the United States
wherein he admitted to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). In a subsequent modified plea agreement, Lerma agreed
to be sentenced to 15 years in prison “as an Armed Career Offender pursuant
to 18 U.S.C. § 924(e).” Lerma did not appeal his sentence, and, in fact, he
completed his 15-year prison term in 2013. However, Lerma has not begun to
serve his five years of supervised release because he remains in federal prison,
serving a 20-year consecutive sentence for unrelated drug charges.
Lerma now seeks to vacate, set aside, or correct his ACCA sentence
pursuant to 28 U.S.C. § 2255 based upon the following. In 2015, the Supreme
Court struck down the ACCA’s “residual clause” as void for vagueness in
Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). Pre-Johnson, the
ACCA defined the term “violent felony” as any crime punishable by a term of
imprisonment exceeding one year that also:
(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.
§ 924(e)(2)(B). The “residual clause” is the last phrase of § 924(e)(2)(B)(ii):
“otherwise involves conduct that presents a serious potential risk of physical
injury to another.”
Johnson did “not call into question application of the Act to the four
enumerated offenses” listed in § 924(e)(2)(B)(ii), nor did it call into question
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any aspect of § 924(e)(2)(B)(i), also known as the “force clause.” 135 S. Ct. at
2563. Thus, post-Johnson, the ACCA defines the term “violent felony” as any
crime punishable by a term of imprisonment exceeding one year 1 that also:
(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, extortion, or involves the use of
explosives.
In 2016, the Supreme Court held that its decision in Johnson announced
a substantive rule that applies retroactively on collateral review. Welch v.
United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Lerma, therefore,
argues that his sentence imposed under the ACCA cannot stand. 2 His
argument is three-fold. First, he asserts that his sentence could not have
constitutionally rested upon the residual clause in light of Johnson and Welch.
Second, he contends that his prior convictions were not for burglary, arson, or
extortion, nor did they involve the use of explosives, as required by
§ 924(e)(2)(B)(ii). Third, he argues that the Texas aggravated robbery statute,
Texas Penal Code § 29.03, does not satisfy the force clause because it does not
have “as an element the use, attempted use, or threatened use of physical force
against the person of another.” See § 924(e)(2)(B)(i).
The Government concedes that Lerma’s sentence could not have
constitutionally rested upon the residual clause in light of Johnson and Welch.
The Government also concedes that Lerma’s prior convictions were not for any
1 There is no dispute that Lerma’s prior convictions for aggravated robbery under
Texas Penal Code § 29.03 carried prison terms exceeding one year. See TEX. PENAL CODE
§ 29.03(b) (noting that aggravated robbery “is a felony of the first degree”); TEX. PENAL CODE
§ 12.32(a) (“An individual adjudged guilty of a felony of the first degree shall be punished by
imprisonment in the Texas Department of Criminal Justice for life or for any term of not
more than 99 years or less than 5 years.”).
2 Lerma is potentially entitled to § 2255 relief with respect to the supervised release
portion of his sentence, as well as the date for his ultimate release from prison.
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of the four enumerated offenses listed in § 924(e)(2)(B)(ii). The only question
then is whether Lerma’s sentence can be sustained pursuant to the ACCA’s
force clause. That is, does the crime under the Texas aggravated robbery
statute for which Lerma was previously convicted at least three times “ha[ve]
as an element the use, attempted use, or threatened use of physical force
against the person of another”?
The district court answered that question in the affirmative and denied
Lerma’s § 2255 motion. From that denial, and the district court’s subsequent
issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253, Lerma
now appeals. 3 As set forth below, we also conclude that the crime under Texas
Penal Code § 29.03 for which Lerma was previously convicted at least three
times qualifies as a violent felony under the force clause of the ACCA because
it has as an element the use, attempted use, or threatened use of physical force
against the person of another.
II.
A.
The issue presented by this case requires us first to determine the
elements of aggravated robbery under Texas Penal Code § 29.03. The Supreme
Court instructs that “[e]lements are the constituent parts of a crime’s legal
definition—the things the prosecution must prove to sustain a conviction.”
Mathis v. United States, --- U.S. --- , 136 S. Ct. 2243, 2248 (2016) (internal
quotation marks and citation omitted). “At a trial, they are what the jury must
3 Although Lerma has completed the 15 years of imprisonment imposed as part of his
sentence under the ACCA, he remains in prison serving the 20 years of imprisonment
imposed as part of his sentence for federal drug-related crimes. Upon his release, Lerma
must complete five years of supervised release as part of his sentence under the ACCA.
Under these circumstances, Lerma is considered “in custody” for his ACCA conviction, and
this Court, thus, has jurisdiction under § 2255 to consider on collateral review Lerma’s
challenge to his ACCA sentence.
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find beyond a reasonable doubt to convict the defendant.” Id. at 2248 (citations
omitted). “[A]t a plea hearing, they are what the defendant necessarily admits
when he pleads guilty.” Id. (citation omitted).
An element of a crime must be distinguished from the means of
satisfying a single element. See id. at 2249-51. For example, a statute may
require the use of a “deadly weapon” as an element of a crime. The statute
may then further list as potential deadly weapons a knife, gun, bat, or similar
weapon. That “list merely specifies diverse means of satisfying a single
element of a single crime.” Id. at 2249. A jury need not find any particular
weapon in the list was used in order to convict, so long as all of the jurors
agreed that the defendant used a deadly weapon. See id.
B.
Criminal statutes are indivisible or divisible. An indivisible statute sets
out a single set of elements to define a single crime. In contrast, a divisible
statute “list[s] elements in the alternative, and thereby define[s] multiple
crimes.” Id. at 2249. If a statute is indivisible, the sentencing court must apply
the “categorical approach.” See id. at 2248. This approach requires the
sentencing court, when determining whether a crime qualifies as a violent
felony under the force clause, to focus solely on whether the elements of the
crime of conviction include the use, attempted use, or threatened use of
physical force against the person of another. See id. The sentencing court is
not permitted to review the particular facts of the case. Id.
When a statute is divisible, however, the sentencing court may use the
“modified categorical approach” to determine which elements played a part in
the defendant’s conviction. Id. at 2253. The modified approach serves “as a
tool to identify the elements of the crime of conviction when a statute’s
disjunctive phrasing renders one (or more) of them opaque.” Id. (citation
omitted). Under that approach, the sentencing court is allowed to look “to a
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limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. at 2249 (citations omitted). The court can
then determine, in deciding whether the crime satisfies the force clause, if one
of those elements included the use, attempted use, or threatened use of
physical force against the person of another.
In this case, the district court began its analysis by noting that the
parties had “agreed that the Texas aggravated robbery statute was a divisible
statute for which the modified categorical approach was appropriate.” The
district court then went on to analyze the statute as a divisible statute,
implicitly determining that the statute was divisible.
C.
Review of the district court’s divisibility determination would generally
represent a question of law that we would review de novo. See United States
v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015). The Government, however, asserts
that “Lerma invited any error” as to the district court’s divisibility analysis and
that, consequently, we should review the district court’s determination for only
manifest injustice.
The invited error doctrine stands for the basic proposition that “[a]
defendant may not complain on appeal of errors that he himself invited or
provoked the district court to commit.” See United States v. Salazar, 751 F.3d
326, 332 (5th Cir. 2014). “Statements amounting to invited error are a species
of waiver” and generally evince an “intent” by the speaker to convince “the
district court to do [something that] it would not otherwise have done.” See
United States v. Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015) (internal
quotation marks and citations omitted). Compare United States v. Morales-
Rodriguez, 788 F.3d 441, 443 n.3 (5th Cir. 2015) (holding that a defendant did
not invite error as to his sentence even though he failed to object to it in the
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district court and even though he stated that his PSR was correct), with United
States v. Roussel, 705 F.3d 184, 193 (5th Cir. 2013) (holding that a defendant
invited error regarding the issuance of a Rule 404(b) jury instruction because
he requested the introduction of the prior acts evidence necessitating issuance
of the instruction). “Invited error imposes an even higher standard than does
plain-error review: We will not reverse on the basis of invited error, absent
manifest injustice.” Salazar, 751 F.3d at 332.
As stated above, the district court began its opinion by noting that the
parties had agreed at the § 2255 hearing that the Texas aggravated robbery
statute was divisible and that, thus, the modified categorical approach could
be applied. A transcript of the hearing reads as follows:
THE COURT: Now the parties agreed that the statute is divisible?
THE GOVERNMENT: Yes, Your Honor.
THE COURT [referring to defense counsel]: Do you agree with
that?
DEFENSE COUNSEL: The robbery – or the aggravated robbery
statute?
THE COURT: Both of them. Robbery and aggravated robbery.
DEFENSE COUNSEL: Your honor, I looked through that last
night and I was looking at the Mathis case. I think [the Texas
aggravated robbery statute, by virtue of its incorporation of the
Texas robbery statute,] would probably be divisible under Mathis.
...
THE COURT: Okay. Government agree?
THE GOVERNMENT: Yes, Your Honor.
We do not construe defense counsel’s equivocal concession as inviting
error. See United States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016) (“We
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narrowly construe counsel’s statements in applying the invited error
doctrine.”). Indeed,
A defendant’s failure to object to a district court’s proposed jury
instruction, or even the affirmative statement, “No, Your Honor,”
in response to the court’s query “Any objection?”, is not the same
as a defendant who proffers his or her own instruction, persuades
the court to adopt it, and then later seeks to attack the sufficiency
of that instruction [on appeal].
United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012). Because
Lerma did not invite any alleged divisibility error, we review the district court’s
divisibility analysis de novo. See Olvera, 775 F.3d at 729.
III.
A.
The Texas aggravated robbery statute provides, in pertinent part:
(a) A person commits [aggravated robbery in Texas] if he commits
robbery as defined in [Texas Penal Code] Section 29.02, and
he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or
places another person in fear of imminent bodily injury or
death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
TEX. PENAL CODE § 29.03 (emphases added).
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The Texas robbery statute, which is incorporated into the first paragraph
of the aggravated robbery statute, provides the following:
(a) A person commits [robbery in Texas] if, in the course of
committing theft . . . and with intent to obtain or maintain
control of the property, he:
(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.
(b) An offense under this section is a felony of the second degree.
TEX. PENAL CODE § 29.02(a).
On its face, the Texas aggravated robbery statute requires that a
defendant commit robbery and meet one of several other requirements to be
convicted of aggravated robbery. The first paragraph of the statute is not
alternatively phrased, but rather requires robbery plus something else to
commit aggravated robbery. Specifically, a defendant may be convicted of
aggravated robbery under § 29.03(a)(1) if he commits robbery and causes
serious bodily injury to another. Both robbery and serious bodily injury are
elements because both are required to obtain a conviction for aggravated
robbery under § 29.03(a)(1). Thus, the aggravated robbery statute sets forth
one crime under § 29.03(a)(1), requiring robbery and serious bodily injury. See
Appendix, “Crime No. 1” under § 29.03(a)(1).
Under § 29.03(a)(2), robbery is again an element as set forth in the first
paragraph. The additional requirement is that the defendant “uses or exhibits
a deadly weapon.” § 29.03(a)(2) (emphasis added). This provision is
alternatively phrased, so the issue becomes whether the alternatives are
elements of a crime under § 29.03(a)(2) or the means of satisfying a single
element. See Mathis, 136 S. Ct. at 2249, 2256. On the face of the statute, the
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alternatives of “using” a deadly weapon or “exhibiting” a deadly weapon cannot
be means because they are not listed as ways of satisfying a single element.
Rather, they each are alternative elements under § 29.03(a)(2). Thus,
§ 29.03(a)(2) sets forth two crimes: aggravated robbery in which the defendant
commits robbery and uses a deadly weapon, and aggravated robbery in which
the defendant commits robbery and exhibits a deadly weapon. See Appendix,
“Crime No. 2” and “Crime No. 3” under § 29.03(a)(2).
Finally, under § 29.03(a)(3), robbery is again an element as set forth in
the first paragraph. The additional requirement in order to commit aggravated
robbery under § 29.03(a)(3) is the status of the victim (“the other person”).
Specifically, the victim of the robbery must be “65 years of age or older; or a
disabled person.” § 29.03(a)(3)(A) & (B). This provision is alternatively
phrased, so the issue again becomes whether the alternatives are elements or
means of satisfying a single element. On the face of the statute, the
alternatives are listed as the means of satisfying the single element of the
status of the victim under § 29.03(a)(3). Thus, § 29.03(a)(3) of the aggravated
robbery statute sets forth one crime requiring robbery and the status of the
victim. See Appendix, “Crime No. 4” under § 29.03(a)(3).
Based on the language of the statute, and applying the definitions of
“elements of a crime” and “means of an element” as set forth by the Supreme
Court in Mathis, we conclude that the Texas aggravated robbery statute is
divisible.
Lerma submits, however, that Texas law provides otherwise. He asserts
that Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014), establishes that
the Texas aggravated robbery statute is indivisible. In Cooper, the Texas Court
of Criminal Appeals held that two of the defendant’s five aggravated robbery
convictions violated the double jeopardy clause of the Fifth Amendment. See
430 S.W.3d at 427. However, Cooper did not interpret the Texas aggravated
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robbery statute. Cooper simply held that a defendant cannot be convicted of
robbing the same person twice at the same time – once by threat and once by
force. Cooper did not address the question that we now face: whether the Texas
aggravated robbery statute is a divisible statute, setting forth alternative
elements and thereby defining multiple crimes. 4
Because the Texas aggravated robbery statute is divisible, we proceed
to apply the modified categorical approach.
B.
The modified categorical approach “permits a court to determine which
statutory phrase was the basis for the conviction by consulting the trial record.”
Johnson v. United States, 559 U.S. 133, 144 (2010) (Johnson II). The court
may refer to the “charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms.” Id. (citations omitted). In this case, the record
contains Lerma’s juvenile order of commitment wherein Lerma was “found to
have engaged in delinquent conduct.” Specifically, Lerma was found to have:
while in the course of committing theft of beer and money,
hereinafter called “the property,” from [victim], with intent to
obtain and maintain control of the property, using and exhibiting
4 Contrary to Lerma’s assertions, the decisions from the Texas Court of Appeals in
Woodard v. State, 294 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), and
Burton v. State, 510 S.W.3d 232 (Tex. App.—Fort Worth 2017, no pet.), are not helpful in the
divisibility determination. The court in Woodard used the term “means” in a different way
than the Mathis court. Specifically, the court concluded that the “aggravating factors [of
§ 29.03] are simply descriptions or means by which the underlying offense of robbery by
causing bodily injury can be committed.” See Woodard, 94 S.W.3d at 609. When the court
used the word “means,” it did not do so in relation to satisfying a single element of a crime,
as Mathis requires. Rather, the Woodard court appears to have used the word “means” to
describe the various crimes set forth in the aggravated robbery statute. See, e.g., Appendix
(setting forth various crimes constituting aggravated robbery under § 29.03). In Burton, the
court held that “causing bodily injury or threatening the victim are different methods of
committing the same offense.” 510 S.W.3d at 232. It is unclear whether the court was
referring to the elements of a crime, the means of satisfying a single element, or the crimes
set forth by a statute under a Mathis analysis.
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a deadly weapon, namely, a gun, knowingly and intentionally
threaten and place [victim] in fear of imminent bodily injury or
death . . . on or about February 11, 1979.
The Order of Commitment further provides that Lerma was found to have:
On or about February 17, 1979, while in the course of
committing theft of beer and money, hereinafter called “the
property,” from [victim], with intent to obtain and maintain
control of the property, using and exhibiting a deadly weapon,
namely, a gun, knowingly and intentionally threaten and place
[victim] in fear of imminent bodily [injury] or death.
The indictment charging Lerma with his first aggravated robbery as an
adult alleged the following:
On or about July 10, 1990, . . . [Lerma] did then and there
while in the course of committing theft of property and with the
intent to obtain and maintain control over the property,
intentionally and knowingly threaten [victim] with and place her
in fear of imminent bodily injury and death by using and exhibiting
a deadly weapon, namely a firearm.
Lerma’s subsequent judicial confession and stipulation tracked the exact
language of the indictment.
The indictment charging Lerma with his second aggravated robbery as
an adult alleged the following:
On or about March 4, 1991, . . . [Lerma] did then and there
while in the course of committing theft of property and with the
intent to obtain and maintain control over the property,
intentionally and knowingly threaten [victim] with and place him
in fear of imminent bodily injury and death by using and exhibiting
a deadly weapon, namely a knife, which in the manner of its use
and intended use was capable of causing death and serious bodily
injury.
Lerma’s subsequent judicial confession and stipulation tracked the exact
language of the indictment.
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Each of Lerma’s prior convictions involved his commission of a robbery
(intentionally and knowingly threatening the victim with and placing the
victim in fear of imminent bodily injury and death), and his using and
exhibiting a deadly weapon. These elements are the same elements of
aggravated robbery under § 29.03(a)(2). See Appendix, “Crime No. 2” and
“Crime No. 3” under § 29.03(a)(2). Thus, under the modified categorical
approach, we determine that Lerma’s prior convictions were based on
§ 29.03(a)(2) of the Texas aggravated robbery statute. The only question
remaining is whether aggravated robbery under § 29.03(a)(2) “has as an
element the use, attempted use, or threatened use of physical force against the
person of another” such that it qualifies as a “violent felony” under the force
clause of the ACCA. See § 924(e)(2)(B)(i).
The Supreme Court has instructed that the meaning of “physical force”
in the ACCA’s force clause “is a question of federal law, not state law.”
Johnson II, 559 U.S. at 138. In Johnson II, the Court provided the meaning of
“physical force” under the force clause of the ACCA. Specifically, the Court
held that “’physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140 (citation omitted).
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. See United States v. Ovalle-Chun, 815 F.3d 222,
227 (5th Cir. 2016) (holding that “a person who intends to, and does, place
another in fear of imminent physical injury by displaying what appears to be
a deadly weapon has communicated an intent to inflict physical harm and,
thus, threatened the use of force”). Therefore, Lerma’s prior convictions for
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aggravated robbery under Texas Penal Code § 29.03(a)(2) qualify as “violent
felonies” under the force clause of the ACCA.
Lerma argues, however, that under Texas law, the defendant’s use or
exhibition of the deadly weapon need not play any part in accomplishing the
threat or placing the victim in fear, as shown by the court’s decision in Boston
v. State, 410 S.W.3d 321, 326-27 (Tex. Crim. App. 2013). In Boston, the victim
of the aggravated robbery testified that “she never saw the firearm” used by
the offender. However, a video of the crime showed that the offender “briefly
pointed [the firearm] at the [victim], and set it on the counter pointed at the
[victim].” Boston, 410 S.W.3d at 323. Under such circumstances, the crime of
aggravated robbery under § 29.03(a)(2) would still qualify as a violent felony
under the force clause, for there can be no question that pointing a gun at
someone is an attempt to use physical force against the person of another.
Thus, even under the scenario presented in Boston, the crime of aggravated
robbery under § 29.03(a)(2) “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” See
§ 924(e)(2)(B)(i).
Based on the foregoing, Lerma’s prior convictions for aggravated robbery
under Texas Penal Code § 29.03(a)(2) qualify as violent felonies under the force
clause of the ACCA. Consequently, Lerma is not entitled to any relief under
28 U.S.C. § 2255. The district court’s judgment is AFFIRMED.
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APPENDIX
Aggravated Crime No. 1 Robbery
Robbery, § 29.03(a)(1)
Texas Penal
Serious Bodily
Code § 29.03 Injury
Crime No. 2 Robbery
§ 29.03(a)(2)
Uses a Deadly
Weapon
Crime No. 3 Robbery
§ 29.03(a)(2)
Exhibits a
Deadly Weapon
Crime No. 4 Robbery
§29.03(a)(3)
Status of the 65 or Older OR
Victim Disabled
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