United States v. Travis ( 2021 )

Case: 20-10408 Document: 00516147571 Page: 1 Date Filed: 12/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10408 December 29, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Terrol Debaun Travis,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-cr-270-1
ON REMAND FROM THE SUPREME COURT
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Terrol Travis was sentenced under the Armed Career Criminal Act.
That law applies to felons unlawfully possessing firearms who have three
convictions that count as a “violent felony” or “serious drug offense.” 18
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-10408 Document: 00516147571 Page: 2 Date Filed: 12/29/2021
No. 20-10408
U.S.C. § 924(e). We summarily affirmed the judgment, treating as qualifying
offenses Travis’s two Texas convictions for possession with intent to deliver
cocaine and a Texas conviction for aggravated assault with a deadly weapon.
830 F. App’x 444 (5th Cir. 2020). Travis argued that the aggravated assault
conviction was not a “violent felony” because that offense can be committed
with a mens rea of recklessness and does not require the use, attempted use,
or threatened us of force. Travis recognized, however, that our precedent
foreclosed this argument, See United States v. Torres, 923 F.3d 425–26 (5th
Cir. 2019), as well as his claim that the drug convictions were not “serious
drug offenses.”
Seeking to overrule that precedent, Travis filed a petition for
certiorari raising two questions. Sup. Ct. No. 20-7974. The first related
to the classification of his drug convictions. The second asked whether his
aggravated assault conviction qualified as a “violent felony” even though it
required only a reckless mental state. Id. While Travis’s petition was
pending, the Supreme Court answered the second question in Borden v.
United States, 141 S. Ct. 1817 (2021). Borden held that “[o]ffenses with a mens
rea of recklessness do not qualify as violent felonies under” the Armed
Career Criminal Act. Id. at 1834. Citing Borden, the Supreme Court later
granted Travis’s petition and remanded the case to our court for
reconsideration. See 142 S. Ct. 58 (Oct. 4, 2021).
It turns out, however, that application of the Armed Career Criminal
Act does not depend on Travis’s aggravated assault conviction. Recall he has
the two drug offenses. While Travis continues to argue that our precedent is
incorrect in classifying those as “serious drug offenses,” he recognizes that
Borden does not undermine our precedent on this issue. See United States v.
Vickers, 540 F.3d 356, 366 (5th Cir. 2008) (holding that the Texas offense of
delivering a controlled substance by offering for sale qualifies as a “serious
drug offense”). He thus has two convictions for “serious drug offenses.”
2
Case: 20-10408 Document: 00516147571 Page: 3 Date Filed: 12/29/2021
No. 20-10408
Travis’s third qualifying conviction is one we did not mention in our
earlier ruling but that the district court relied on at sentencing: a 2002 Texas
arson conviction. Arson is an enumerated “violent felony” under the Armed
Career Criminal Act. See 28 U.S.C. § 924(e)(2)(B)(ii); see also United States
v. Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2009) (recognizing for purposes
of a Sentencing Guidelines provision that the “Texas arson statute falls
under the generic, contemporary meaning of arson”). As Travis again
concedes, Borden does not affect the classification of the arson conviction.
Consequently, even disregarding the aggravated assault conviction,
Travis has three convictions that qualify as Armed Career Criminal Act
predicates. Therefore, the judgment is AFFIRMED.
3