United States v. Wheeler ( 2022 )


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  • Case: 19-11022        Document: 00516580751             Page: 1      Date Filed: 12/16/2022
    United States Court of Appeals
    for the Fifth Circuit                                              United States Court of Appeals
    Fifth Circuit
    FILED
    December 16, 2022
    No. 19-11022
    Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Vernon Lee Wheeler,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:16-CR-75-1
    Before Smith, Barksdale, and Haynes, Circuit Judges.
    Per Curiam:*
    Defendant-Appellant Vernon Wheeler pleaded guilty to being a felon
    in possession of a firearm. At sentencing, the district court determined that
    Wheeler had at least three prior convictions for violent felonies and
    subsequently applied the enhancement mandated by the Armed Career
    Criminal Act (“ACCA”), 
    18 U.S.C. § 924
    (e). The court sentenced Wheeler
    to 180 months in prison. On appeal, Wheeler argues that the district court
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 19-11022         Document: 00516580751               Page: 2       Date Filed: 12/16/2022
    No. 19-11022
    erred in applying the enhancement. For the reasons set forth below, we
    AFFIRM Wheeler’s sentence and DENY his motion to file a supplemental
    brief.
    I.
    In November 2015, police officers arrested Wheeler for jaywalking.
    During the arrest, the officers discovered a pistol in his car. Because Wheeler
    had prior felony convictions, the Government charged him with unlawful
    possession of a firearm in violation of 
    18 U.S.C. § 922
    (g)(1).
    A felon-in-possession conviction typically carries a maximum 10-year
    penalty. 
    18 U.S.C. § 924
    (a)(2). However, under the ACCA, a person who
    has been convicted of possessing a gun as a felon is subject to a 15-year
    mandatory minimum sentence if he has three prior convictions for “violent
    felon[ies].” 
    Id.
     § 924(e)(1); see also United States v. Lerma, 
    877 F.3d 628
    , 629
    (5th Cir. 2017).        The ACCA defines “violent felony” as “any crime
    punishable by imprisonment for a term exceeding one year” that (1) “has as
    an element the use, attempted use, or threatened use of physical force against
    the person of another,”1 or (2) “is burglary, arson, or extortion, involves use
    of explosives, or otherwise involves conduct that presents a serious potential
    risk of physical injury to another.” 
    18 U.S.C. § 924
    (e)(2)(B)(i)–(ii).
    At the time Wheeler committed the underlying offense, he had four
    previous convictions for aggravated robbery with a deadly weapon in
    violation of the Texas robbery statute. Accordingly, Wheeler’s indictment
    gave him notice that he was subject to the enhanced penalties of § 924(e).
    He subsequently pleaded guilty to the felon-in-possession charge but
    disputed the applicability of the ACCA enhancement, asserting that his
    1
    The first portion of the statute, colloquially referred to as the “elements clause,”
    is at issue here.
    2
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    No. 19-11022
    convictions were not categorically “violent felonies” within the ACCA’s
    elements clause. After conducting a sentencing hearing, the district court
    agreed with Wheeler and declined to apply the enhancement.               The
    Government subsequently appealed.
    Initially, we affirmed. United States v. Wheeler (“Wheeler I”), 733 F.
    App’x 221, 222–23 (5th Cir. 2018) (per curiam), vacated and superseded on
    reh’g, 754 F. App’x 282 (5th Cir. 2019) (per curiam) (mem.) (“Wheeler II”).
    But, in light of intervening precedent from our court, we vacated our prior
    opinion, vacated Wheeler’s sentence, and remanded for a full resentencing.
    Wheeler II, 754 F. App’x at 282. In doing so, we instructed the district court
    to consider the sentence, “in the first instance” based on (1) intervening
    precedent, (2) “any other new cases,” and (3) “arguments about whether
    applying such cases to Wheeler’s sentence [would be] consistent with due
    process.” Id. at 283.
    At resentencing, the district court concluded it was obligated to apply
    the ACCA-enhancement and accordingly sentenced Wheeler to 180 months
    in prison. Wheeler timely appealed.
    II.
    On appeal, Wheeler challenges the district court’s imposition of the
    ACCA enhancement based on his prior convictions for robbery in violation
    of the Texas robbery statute. He argues that the district court erred because:
    (1) his Texas robbery convictions are not categorically “violent felonies”
    under the ACCA, and (2) due process concerns preclude the imposition of
    an ACCA-enhanced sentence. We address each argument in turn, reviewing
    the legal conclusions underlying the district court’s application of the ACCA
    de novo. United States v. Hawley, 
    516 F.3d 264
    , 269 (5th Cir. 2008).
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    III.
    First, Wheeler maintains that the district court erred in concluding
    that he was subject to the ACCA-enhancement based on his prior Texas
    robbery convictions. Wheeler begins by asserting that convictions under the
    Texas robbery statute are not categorically violent felonies—and we agree
    with that. The Supreme Court made clear in Borden v. United States, 
    141 S. Ct. 1817
     (2021), that crimes which can be committed “with a mens rea of
    recklessness do not qualify as violent felonies under [the] ACCA
    . . . [because] [t]hey do not require . . . the active employment of force against
    another person.” 
    Id. at 1834
    . Because an individual may be convicted under
    the Texas robbery statute without acting with purpose or knowledge, see
    
    Tex. Penal Code Ann. § 29.02
    (a), we agree that a conviction under the
    Texas robbery statute would not per se qualify as a violent felony for ACCA
    purposes.
    But whether or not convictions under the Texas robbery statute are
    categorically violent felonies is not dispositive here. Rather, what matters is
    whether the Texas robbery statute is “divisible” or “indivisible.” United
    States v. Garrett, 
    24 F.4th 485
    , 489–90 (5th Cir. 2022). “An indivisible
    statute sets out a single set of elements to define a single crime. In contrast,
    a divisible statute lists elements in the alternative, and thereby defines
    multiple crimes.” Lerma, 877 F.3d at 631 (internal citation, quotation marks,
    and brackets omitted). Therefore, a divisible statute can “create multiple,
    distinct crimes, some violent, some non-violent.” Garrett, 24 F.4th at 488.
    As we explained in Garrett, the Texas robbery statute is divisible: it
    creates multiple crimes, including (1) robbery-by-injury, which may be
    committed recklessly, and (2) robbery-by-threat, which may be committed
    intentionally or knowingly. Id. at 489–90. Because robbery-by-threat may
    only be committed with an intentional and knowing mens rea, a conviction
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    under this portion of the statute therefore qualifies as a violent felony under
    the ACCA. Id. at 491. Wheeler devotes much of his appellate briefing trying
    to convince us otherwise. But we agree with—and are bound by—Garrett’s
    reasoning.
    Because the Texas robbery statute is divisible, we then must apply a
    “modified categorical approach” to determine whether Wheeler’s
    convictions qualify as violent felonies. Under this approach, we consider “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.” Lerma, 877 F.3d at 631.
    The record here makes plain that Wheeler’s prior convictions were
    predicated on the robbery-by-threat portion of the statute. Like the evidence
    in Garrett, the record here “recites the statutory language pertaining to
    robbery-by-threat and makes no mention of robbery-by-injury.” Garrett, 24
    F.4th at 491. For example, the presentence report (“PSR”) indicates that
    Wheeler was convicted of intentionally and knowingly threatening and
    placing the victims in fear of imminent bodily injury and death. Under our
    precedent, then, Wheeler’s convictions qualify as violent felonies.
    Therefore, the district court did not err in applying the ACCA enhancement,
    and in fact, it was obligated to do so.
    In an attempt to overcome the binding precedent on this issue,
    Wheeler asserts that the Government expressly waived the divisibility
    argument in the prior appeal. Therefore, per Wheeler, the district court
    erred in considering divisibility when evaluating the ACCA enhancement.
    Wheeler’s argument, though, falls short for several reasons.
    First, our remand order directed the district court to conduct a full
    resentencing, including considering—in the first instance—Wheeler’s
    sentence in light of intervening binding precedent, as well as “any other new
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    cases.” Wheeler II, 754 F. App’x at 283. Under the mandate rule, the district
    court was compelled to comply on remand with the dictates of our court.
    United States v. Lee, 
    358 F.3d 315
    , 321 (5th Cir. 2004). Our broad mandate
    required the district court to consider all arguments relevant to the ACCA
    enhancement, including those related to divisibility, and the district court did
    just that.
    Second, and separately, we “may affirm on any basis supported by the
    record.” United States v. Barlow, 
    17 F.4th 599
    , 602 (5th Cir. 2021) (forgoing
    “resolution of the waiver issue” and instead affirming on an independent
    basis). The district court was guided by the PSR in sentencing Wheeler. The
    PSR independently recommended an ACCA enhancement based, at least in
    part, on divisibility. Therefore, the PSR, as part of the record, provides an
    independent basis supporting the ACCA enhancement. We therefore reject
    Wheeler’s waiver contentions.
    In sum, we conclude that the district court did not err in concluding
    that Wheeler was subject to an ACCA-enhanced sentence based on his Texas
    robbery convictions.
    IV.
    Wheeler next urges that the district court erred because applying the
    ACCA enhancement to his sentence would violate due process principles.
    Per Wheeler, he lacked fair notice that he would be eligible for a sentence
    longer than ten years because this court’s precedent at the time he committed
    his offense did not make clear that a Texas robbery conviction would qualify
    as a violent felony.    We recognize that our precedent related to the
    applicability of the ACCA enhancement has not always been well-defined.
    However, for the reasons discussed below, we are unpersuaded that this
    amounts to a due process violation.
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    Generally, “most judicial decisions apply retroactively.” United
    States v. Jackson, 
    30 F.4th 269
    , 272 (5th Cir. 2022). But due process
    principles require that individuals have “notice of what conduct is criminal
    and the punishment that attaches to each crime.” 
    Id.
     So, in narrow and
    limited circumstances, a retroactive application of a judicial decision could
    violate the Due Process Clause. For example, in Bouie v. City of Columbia,
    
    378 U.S. 347
     (1964), the Supreme Court held that a defendant’s due process
    rights could be violated by a retroactive application of an “unexpected and
    indefensible” expansion of substantive criminal liability. 
    Id. at 354
    .
    In line with that decision, our court has held that such “Bouie
    situation[s]” arise if a judicial opinion (1) is a “stark divergence from the
    statutory text,” (2) “depart[s] from prior caselaw,” (3) is “inconsist[ent]
    with the expectations of the legislature and law enforcement,” or
    (4) criminalizes “otherwise innocent conduct.” Jackson, 30 F.4th at 272.
    But Bouie situations are exceedingly rare; in fact, this court has never applied
    Bouie to find a due process violation. See id. at 274. Because this case does
    not present any of the hallmarks of an “exceedingly rare” circumstance
    warranting its application, we similarly decline to do so here.
    First, our later precedent establishing that an aggravated robbery
    conviction could be a violent felony is not in conflict with the ACCA’s text.
    To the contrary, it is in accord with the ACCA’s text and Congress’s intent in
    enacting the statute. See Taylor v. United States, 
    495 U.S. 575
    , 581 (1990)
    (recognizing that “the first version of the sentence-enhancement provision”
    subjected defendants to a 15-year mandatory minimum term if they had
    “three previous convictions ‘for robbery or burglary.’”). Second, our recent
    precedent was certainly not “unexpected.” Instead, “[i]t merely reconciled
    [this] circuit[’s] precedents with the Supreme Court’s decision.” United
    7
    Case: 19-11022         Document: 00516580751              Page: 8       Date Filed: 12/16/2022
    No. 19-11022
    States v. Gomez Gomez, 
    917 F.3d 332
     (5th Cir. 2019),2 overruled on other
    grounds by Gomez v. United States, 
    141 S. Ct. 2779
     (2021) (mem.). Third, our
    decisions did not make previously innocent conduct criminal. See Proctor v.
    Cockrell, 
    283 F.3d 726
    , 732 (5th Cir. 2002). Possession of a firearm with a
    prior felony conviction has long been a federal crime. See 
    18 U.S.C. § 922
    (g)(1). This is in stark contrast to Marks v. United States, 
    430 U.S. 188
    (1977), one of the very few instances where the Supreme Court has found a
    due process violation based on the retroactive application of new judicial
    precedent.      See 
    id. at 191
    .       In Marks, the Court’s opinion redefined
    “obscenity,” thereby criminalizing acts that were wholly legal at the time of
    the challenged conduct. See 
    id.
     But such is not the case here—Wheeler
    wasn’t participating in wholly innocent conduct, rendered unlawful by a later
    judicial opinion. He instead illegally possessed a firearm, in violation of a
    federal law that had long been in effect.
    At bottom, none of the Bouie hallmarks are present here. We are thus
    assured that Wheeler had fair notice of the potential sentence authorized.
    United States v. Batchelder, 
    442 U.S. 114
    , 123 (1979). As such, we reject
    Wheeler’s challenge and hold that the ACCA-enhanced sentence conforms
    with due process principles.
    V.
    For the foregoing reasons, we AFFIRM Wheeler’s sentence.
    Wheeler’s motion to file a supplemental brief is DENIED.3
    2
    The Supreme Court overruled Gomez Gomez on other grounds, see Gomez, 141 S.
    Ct. at 2780, but its reasoning on this point is still true.
    3
    Months after the conclusion of briefing and weeks after oral argument in this case,
    Wheeler moved to file a supplemental brief. His motion sought to make a new argument
    that his prior convictions did not occur on “different occasions” based on Wooden v. United
    States, 
    142 S. Ct. 1063
     (2022). But Wheeler concedes that “he did not raise any challenge
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    to the” different occasions determination at the earlier sentencing, the new sentencing, or
    in his initial brief. Moreover, this precedent was available to Wheeler at the time he filed
    his reply brief and at oral argument. Yet he failed to raise Wooden at any time until now.
    We thus decline to consider it.
    9