United States v. Dantana Tanksley , 848 F.3d 347 ( 2017 )

Case: 15-11078 Document: 00513840322 Page: 1 Date Filed: 01/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11078 FILED
Conference Calendar January 18, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DANTANA TANKSLEY,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON PETITION FOR PANEL REHEARING
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
In light of Mathis v. United States, 136 S. Ct. 2243 (2016), and United
States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), we granted defendant Dantana
Tanksley’s motion for panel rehearing to decide whether United States v. Ford,
509 F.3d 714 (5th Cir. 2007), still represents the law. Ford held that a
conviction for possession with intent to deliver a controlled substance under
section 481.112(a) of the Texas Health and Safety Code (“Section 481.112(a)”)
qualifies as a “controlled substance offense” under the United States
Sentencing Commission Guidelines Manual (the “Guidelines”). On rehearing,
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our prior panel opinion is WITHDRAWN, and this opinion is SUBSTITUTED
therefor.
I.
In 2015, Tanksley pleaded guilty to violating 18 U.S.C. § 922(g), which
prohibits convicted felons from possessing firearms. At sentencing, the district
court found that a prior conviction under Section 481.112(a) for possession with
intent to deliver a controlled substance constituted a “controlled substance
offense” within the meaning of the Guidelines, § 4B1.1. Tanksley objected to
this particular enhancement but conceded his objection was foreclosed by Ford.
Tanksley then appealed, again conceding that Ford foreclosed this argument.
Indeed, both of the arguments Tanksley made on appeal—he also disputed the
constitutionality of 18 U.S.C. § 922(g)—were admittedly foreclosed, and we
granted the government’s unopposed motion for summary affirmance. See
United States v. Tanksley, Case No. 15-11078, 2016 WL 4375058 (5th Cir. Aug.
16, 2016). Shortly before we affirmed Tanksley’s conviction and sentence, the
Supreme Court issued Mathis. Based on that decision and this Court’s decision
in Hinkle, Tanksley moved for panel rehearing. We granted the motion.
Mathis is relevant to the district court’s determination that the Section
481.112(a) conviction represented a controlled substance offense under the
Guidelines. “In determining if a prior conviction is for an offense enumerated
or defined in a Guidelines provision, we generally apply the categorical
approach and 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.” United States v. Howell, 838
F.3d 489, 494 (5th Cir. 2016). Some criminal statutes, however, are “divisible,”
meaning a single statute “define[s] multiple crimes.” Mathis, 136 S. Ct. at
2249. The Supreme Court has “approved the ‘modified categorical approach’
for use with statutes having multiple alternative elements,” permitting courts
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to examine “a 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. With the precise crime thus
identified, the court can then apply the categorical approach, asking whether
that precise crime matches the Guidelines offense at issue. Id.
Some criminal statutes appear divisible but are not. These statutes,
rather than providing alternative elements, instead list “various factual means
of committing a single element.” Id. In Mathis, the Supreme Court held that
the modified categorical approach is not appropriate for this species of criminal
statute. Id. at 2257. More importantly here, it also “provided helpful guidance
for determining whether a predicate statute of conviction is divisible.” United
States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016). This factual and legal
backgrounded concluded, we turn to our analysis.
II.
We have been asked to find an otherwise controlling precedent obsolete.
While the defendant argues that, together, Mathis and Hinkle put Ford into
doubt, it is appropriate to focus our inquiry on Mathis. This is because, under
the rule of orderliness, “one panel of this Court may not overrule another.”
United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (quoting Cent. Pines
Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001)). As a corollary,
“to the extent that a more recent case contradicts an older case, the newer
language has no effect.” Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4
(5th Cir. 2000). If, however, a Supreme Court decision “expressly or implicitly”
overrules one of our precedents, we have the authority and obligation to declare
and implement this change in the law. See United States v. Kirk, 528 F.2d
1057, 1063 (5th Cir. 1976). “Such an intervening change in the law must be
unequivocal, not a mere ‘hint’ of how the Court might rule in the future.”
United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Accordingly, only
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Mathis can inter Ford, and we ignore Hinkle while asking whether the
Supreme Court unequivocally abrogated Ford. 1
Under Section 481.112(a), “a person commits an offense if the person
knowingly manufactures, delivers, or possesses with intent to deliver a
controlled substance” as defined elsewhere in the Code. Ford’s feature holding
was that a conviction for “‘possession with an intent to deliver’ a controlled
substance under section 481.112(a) . . . can be used as a basis for a sentence
enhancement as a ‘controlled substance offense’ under” the Guidelines. 509
F.3d at 715. That holding, if still applicable, controls this case because the
defendant here was also convicted of possession with intent to deliver a
controlled substance.
More important for our purposes, however, is Ford’s necessary predicate
holding—that Section 481.112(a) is a divisible statute such that (1) use of the
modified categorical approach is appropriate and (2) “possession with intent to
deliver” a controlled substance is a distinct crime from mere delivery of that
same controlled substance. This holding was crucial because, in United States
v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (per curiam), we had already held
that a conviction for delivery of a controlled substance under that same Section
481.112(a) was not a “drug trafficking offense” under the Guidelines. There
being no substantive difference between a “controlled substance offense” and a
“drug trafficking offense” under the Guidelines, the holding in Gonzales would
necessarily control the outcome in Ford if Section 481.112(a)’s reference to
1 Our approach would be different if Hinkle had considered whether Mathis
unequivocally overruled Ford. Such a ruling would have resolved this case as well. Hinkle
did not take this approach, instead simply recognizing that its conclusion is potentially
“contrary to prior precedent of this court” and identifying one affected case, United States v.
Garcia–Arellano, 522 F.3d 477 (5th Cir. 2008). See 832 F.3d at 574–57 & n.27. Accordingly,
Mathis’s impact on our precedents was not settled by that case.
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manufacture, delivery, and possession with intent to deliver merely set forth
three ways to commit one crime rather than three separate crimes.
To reconcile Gonzales, Ford explained that the “significant distinction”
was that defendant Jason Jermaine Ford been convicted “for possession with
the intent to deliver rather than just delivery or transportation.” Ford, 509
F.3d at 717. In other words, possession with intent to deliver and actual (or
mere) delivery are two separate crimes—one that qualifies as a controlled
substance offense, one that does not. We have subsequently recognized and
maintained this line drawn in Ford. See Vasquez-Martinez v. Holder, 564 F.3d
712, 718–19 (5th Cir. 2009). And, prior to Mathis, Section 481.112(a)’s status
as a divisible statute subject to a modified categorical approach was firmly
established. See, e.g., United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th
Cir. 2008).
The government contends that Ford does not utilize the modified
categorical approach, but the court in Ford looked at the defendant’s
indictment to determine that he had been convicted of possession with intent
to deliver a controlled substance rather than “just” delivery of a controlled
substance. 509 F.3d at 717. This is the modified categorical approach. In
Mathis, the Supreme Court clarified when this approach is proper: where a
single statute lists elements in the alternative, and thereby defines multiple
crimes. 136 S. Ct. at 2249. Because Ford concludes that Section 481.112(a)
contained distinct criminal offenses, it complies with this aspect of Mathis.
Accordingly, if the Supreme Court had merely resolved the circuit split on
when the modified categorical approach is proper, we would be unable to say
that it unequivocally abrogated Ford.
The Supreme Court went further though, and also instructed courts on
how to identify truly divisible statutes. Mathis explains that, in “easy” cases,
a state court decision directly provides an answer. Id. at 2256. Thus, “[i]n
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light of Mathis, we know that we must determine whether ‘listed items’ in a
state statute ‘are elements or means,’ and if ‘a state court decision definitively
answers the question’ our inquiry is at an end.” Howell, 838 F.3d at 498.
Mathis, which dealt with an Iowa burglary statute, was an easy case:
The listed premises in Iowa’s burglary law, the State Supreme
Court held, are “alternative method[s]” of committing one offense,
so that a jury need not agree whether the burgled location was a
building, other structure, or vehicle. [State v. Duncan, 312 N.W.2d
519, 523 (Iowa 1981).] When a ruling of that kind exists, a
sentencing judge need only follow what it says.
Mathis, 136 S. Ct. at 2256.
Here, too, a state court decision settles the question. In Lopez v. State,
Texas’ highest criminal court was “asked to decide whether a person’s offer to
sell three kilos of cocaine in the morning and his possession of cocaine with the
intent to deliver it to complete that same sale in the evening constitutes one
offense or two.” 108 S.W.3d 293, 294 (Tex. Crim. App. 2003). Thus, the case
was specifically about whether delivery (an offer to sell a controlled substance
amounts to delivery under Texas law, see Tex. Health & Safety Code
§ 481.002(8)) and possession with intent to deliver were separate offenses. The
court held that “Section 481.112 provides several different means for
committing the offense of delivery of a single quantity of drugs so that, no
matter where along the line of actual delivery—from the offer to sell, to the
possession of the drugs with the intent to deliver them, to the actual delivery
itself—the drug dealer may be held accountable for the gravamen of the
offense—the distribution of dangerous drugs in our society.” Id. at 299–300
(emphasis added). The means or elements question has been directly answered
by the Texas court.
Mathis is “more than merely illuminating with respect to the case before
us;” it unequivocally resolves the question in favor of Tanksley. See In re Texas
Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (quoting
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Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012)). Ford cannot
stand. Section 481.112(a) is an indivisible statute to which the modified
categorical approach does not apply.
We note that Hinkle reached essentially the same result for the same
reasons. See 832 F.3d at 574–76. The government does not dispute Hinkle,
instead describing it as “merely a straightforward application of Mathis.” (Gov.
Supp. Br. at 11.) We agree with this characterization. However, the
government’s only plausible line of argument was that, under the rule of
orderliness, Hinkle must be disregarded to the extent it is incompatible with
Ford. This is because, contrary to the government’s position, Section
481.112(a) cannot be divisible if violated by mere delivery and indivisible if
violated by possession with intent to deliver. Under such a reading, courts
would be required to undertake a modified categorical approach analysis
simply to determine if the modified categorical approach is proper. The legal
physics at play simply will not be permit a single statute to be both divisible
and indivisible. Hinkle’s holding that Section 481.112 is divisible was
vulnerable to challenge only under the rule of orderliness, and we now reject
that challenge.
Because the modified categorical approach is inappropriate in this case,
we cannot use it to “narrow” Tanksley’s conviction to “possession with intent
to deliver” a controlled substance. See Howell, 838 F.3d at 499. We instead
look to Section 481.112(a) as a whole in determining whether his conviction
thereunder qualifies as a controlled substance offense under the Guidelines.
Section 481.112(a) “criminalizes a ‘greater swath of conduct than the elements
of the relevant [Guidelines] offense.’” Hinkle, 832 F.3d at 576 (quoting Mathis,
136 S. Ct. at 2251). Tanksley’s conviction under that statute does not qualify
as a controlled substance offense under the Guidelines. Id.
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III.
The government contends that any error was harmless. “[T]he harmless
error doctrine applies only if the proponent of the sentence convincingly
demonstrates both (1) that the district court would have imposed the same
sentence had it not made the error, and (2) that it would have done so for the
same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna,
628 F.3d 712, 714 (5th Cir. 2010).
Here, the district court stated that “[e]ven if the guideline calculations
are not correct, this is the sentence the Court would otherwise impose under
18 U.S.C. § 3553.” Similar statements have been sufficient to establish
harmless error in other cases. See United States v. Richardson, 713 F.3d 232,
237 (5th Cir. 2013); United States v. Garcia, 647 F. App’x 408, 410 (5th Cir.
2016). Nonetheless, it is not enough for the district court to say the same
sentence would have been imposed but for the error. See United States v.
Bazemore, 608 F. App’x 207, 216 (5th Cir. 2015). “The government must point
to evidence in the record that convincingly demonstrates the district court
would impose the same sentence for the same reasons.” United States v.
Hernandez–Montes, 831 F.3d 284, 296 (5th Cir. 2016)
In this case, our review of the record does not convince us that the within-
Guidelines sentence imposed by the district court had nothing to do with the
Guidelines calculation. See id. at 295 (To establish harmless error, “the
government ‘must show that the [sentence] the district court imposed was not
influenced in any way by the erroneous Guideline calculation.’” (quoting
United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)). At the sentencing
hearing, the district court overruled Tanksley’s objection to the Guidelines,
§ 4B1.1 enhancement, expressly adopted the probation officer’s Guidelines
calculation, and pointed out that the sentence was at “the bottom of the
guidelines.” The district court’s Statement of Reasons indicates Tanksley was
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not sentenced “outside the advisory guideline system” and that “the Court
considered the advisory guidelines.” We cannot say “with the requisite
certainty” that the error was harmless. See Ibarra-Luna, 628 F.3d at 719.
IV.
Tanksley’s unopposed motion for leave to file a reply brief is GRANTED.
Tanksley’s sentence is VACATED, and we REMAND for resentencing.
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