United States v. Adair ( 2021 )

Case: 21-50218 Document: 00516070409 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 26, 2021
No. 21-50218 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jacob Allen Adair,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-303-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Jacob Allen Adair appeals the 57-month within-guidelines prison
sentence that the district court imposed following his guilty-plea conviction
for possessing a firearm after a felony conviction. He argues that the district
court erred in assigning a base offense level under U.S.S.G. § 2K2.1(a)(4)(A)
because his prior Texas robbery conviction does not constitute a “crime of
violence.”
We review challenges to a district court’s interpretation and
application of the Sentencing Guidelines de novo. United States v. Howell,
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No. 21-50218
838 F.3d 489, 493 (5th Cir. 2016). “In determining if a prior conviction is for
an offense enumerated or defined in a Guidelines provision, we generally
apply the categorical approach.” Id. at 494. That is, we “look to the elements
of the offense enumerated or defined by the Guideline section and compare
those elements to the elements of the prior offense for which the defendant
was convicted.” Id. “If the offense is an enumerated offense, . . . we first
determine the elements contained in the generic, contemporary meaning of
that offense.” Id.The term “crime of violence,” as used in § 2K2.1, is defined in
U.S.S.G. § 4B1.2(a). § 2K2.1 cmt. n.1. That subsection provides that “‘crime
of violence’ means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year,” that either “(1) has as an
element the use, attempted use, or threatened use of physical force against
the person of another” or “(2) is murder, voluntary manslaughter,
kidnapping, aggravated assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a firearm . . . or explosive
material.” U.S.S.G. § 4B1.2(a). While the Government concedes that Texas
robbery does not constitute a crime of violence under § 4B1.2(a)(1), it
contends that the state offense fits within the generic, contemporary meaning
of “robbery” and thus corresponds to an enumerated crime of violence under
§ 4B1.2(a)(2). In support of this position, the Government cites United States
v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006), overruled on other
grounds by United States v. Rodriguez, 711 F.3d 541, 554-55 (5th Cir. 2013) (en
banc). Adair maintains that Santiesteban-Hernandez is not dispositive.
In Santiesteban-Hernandez, the court determined that the elements of
Texas robbery “substantially correspond to the basic elements of the generic
offense” of robbery. 469 F.3d at 381. Accordingly, the court held that Texas
robbery qualifies as a “crime of violence” for purposes of U.S.S.G. § 2L1.2.
Id. at 378. We have held that “a prior conviction that would qualify for the
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‘crime of violence’ enhancement under § 2L1.2 would also qualify for the
enhancement under § 4B1.2.” United States v. Flores-Vasquez, 641 F.3d 667,
671 n.1 (5th Cir. 2011). Therefore, Adair’s Texas robbery conviction qualifies
as a crime of violence under § 4B1.2(a)(2), and the district court properly
applied § 2K2.1(a)(4)(A).
Adair contends that Santiesteban-Hernandez’s fourth footnote left
open the possibility that generic robbery has a narrower mens rea element
than Texas robbery. That footnote reads as follows:
This appeal does not present the question of whether the mens
rea differs between the statute governing the defendant's
offense and the generic, contemporary meaning of the offense.
However, such a situation would not alter the analysis; rather,
mens rea would be another basic element on which the two
definitions must correspond.
Santiesteban-Hernandez, 469 F.3d at 379 n.4.
Adair misconstrues this footnote, which, we have explained in an
unpublished opinion, simply recognizes that the “generic definition of
robbery did not require a particular mens rea.” United States v. Ortiz-Rojas,
575 F. App’x 494, 495 (5th Cir. 2014) (unpublished). 1 Moreover, Adair’s
reading of this footnote is at odds with the opinion’s conclusion that Texas
robbery and generic robbery “substantially correspond.” Id. at 381; see
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (explaining that “if the
crime of conviction covers any more conduct than the generic offense,” the
1
Of course, Texas robbery is not a strict liability crime. As Santiesteban-Hernandez
recognized, Texas robbery has theft as one of its elements, 469 F.3d at 380, and Texas theft
requires a “specific intent to deprive the owner of property.” Ex parte Smith, 645 S.W.2d
310, 312 (Tex. Crim. App. 1983).
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two do not correspond under the categorical approach). Two offenses cannot
substantially correspond if they do not require the same mens rea.
The judgment of the district court is AFFIRMED.
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