United States v. Williams ( 2022 )

Case: 21-10471 Document: 00516158062 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 21-10471 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jaako Williams
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-180-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Jaako Williams appeals the 110-month below-guidelines sentence
imposed following his guilty plea conviction for possessing a firearm after a
felony conviction. For the first time on appeal, he argues that the district
court plainly erred in assigning him a base offense level pursuant to U.S.S.G.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 21-10471
§ 2K2.1(a)(3) because his prior simple robbery conviction under Texas Penal
Code § 29.02(a)(1) no longer constitutes a “crime of violence” in light of
Borden v. United States, 141 S. Ct. 1817 (2021). See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Ronquillo, 508 F.3d 744, 748 (5th
Cir. 2007). Williams concedes, however, that his argument is foreclosed, and
he seeks to preserve it for further appellate review.
The Texas felony offense of simple robbery is a “crime of violence”
if it “(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) is [the enumerated offense
of] robbery.” U.S.S.G. § 4B1.2(a)(1) & (2); see § 2K2.1, cmt. (n.1). Borden
held that an offense with a mens rea of recklessness cannot qualify as a
“violent felony” under the use-of-force clause of the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(i). See 141 S. Ct. at 1825. By extension, a
§ 29.02(a)(1) Texas conviction for simple robbery, which could be
committed simply by recklessly causing another to suffer injury during a
theft, also no longer qualifies as a “crime of violence” under § 4B1.2(a)(1)’s
force clause. See United States v. Greer, __F.4th__, No. 19-11348, 2021 WL
5999193, at *2 (5th Cir. Dec. 20, 2021) (holding that after Borden, prior
convictions under Texas Penal Code § 22.01(a)(1), (b)(2)(A), and (b)(2)(B)
for assault family violence no longer qualify as crimes of violence because the
applicable statutory subsections do not include a force element with a mens
rea greater than recklessness). Borden, however, did not address recklessness
in the context of the enumerated-offenses clause, which is at issue here, and
is therefore not controlling. See United States v. Rayo-Valdez, 302 F.3d 314,
318-19 (5th Cir. 2002) (explaining that enumerated offenses can be “crimes
of violence” regardless of whether they necessarily involve the use of force).
In United States v. Santiesteban-Hernandez, 469 F.3d 376, 377–82 (5th
Cir. 2006), abrogated on other grounds by United States v. Rodriguez, 711 F.3d
541 (5th Cir. 2013) (en banc), this court held that the elements of the Texas
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No. 21-10471
robbery statute “substantially correspond to the basic elements of the generic
offense, in that they both involve theft and immediate danger to a person.”
Texas robbery therefore qualifies as a crime of violence under the
enumerated-offenses clause of § 4B1.2(a), and the district court properly
applied U.S.S.G. § 2K2.1(a)(3). Santiesteban-Hernandez, 469 F.3d at 381; see
also United States v. Adair, 16 F.4th 469, 470-71 (5th Cir. 2021) (treating
Santiesteban-Hernandez as good law post-Borden).
AFFIRMED.
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