United States v. Balderas ( 2022 )

Case: 20-10992 Document: 00516249052 Page: 1 Date Filed: 03/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2022
No. 20-10992 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Modesto Balderas,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-66
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Modesto Balderas pleaded guilty to possession of a firearm by a felon,
18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial
*
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opinion should not be published and is not precedent except under the limited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. 20-10992
number, 18 U.S.C. § 922(k). After concluding that Balderas was subject to
enhanced penalties, including a 15-year mandatory minimum sentence,
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B),
the district court sentenced him to 186 months of imprisonment. On appeal,
Balderas challenged the characterization of two of three prior convictions as
violent felonies for purposes of the enhanced penalties of the ACCA.
§ 924(e). We granted the Government’s motion for summary affirmance
following Balderas’s concession that his arguments were foreclosed by this
court’s prior decisions. Balderas petitioned the United States Supreme
Court for a writ of certiorari.
While his petition was pending, the Supreme Court decided that a
crime capable of commission with “a less culpable mental state than purpose
or knowledge,” such as “recklessness,” cannot qualify as a “violent felony”
under § 924(e)(2)(B) of the ACCA. Borden v. United States, 141 S. Ct. 1817,
1821–22, 1825, quotations at 1821-22 (2021) (plurality opinion); id. at 1835.
After Borden, the Court granted Balderas’s petition, vacated our judgment,
and remanded “for further consideration in light of Borden.” Balderas v.
United States, 142 S. Ct. 860, 860 (2022).
The ACCA provides for enhanced penalties for defendants who have
three prior convictions for “a violent felony or a serious drug offense, or
both.” § 924(e)(1). The statute defines a “violent felony” as including “any
crime punishable by imprisonment for a term exceeding one year” that “has
as an element the use, attempted use, or threatened use of physical force
against the person of another.” § 924(e)(2)(B). We review Balderas’s
preserved challenges to the application of § 924(e) de novo. See United States
v. Flores, 922 F.3d 681, 683 (5th Cir. 2019).
Post-Borden, the question is whether Balderas’s prior Texas
convictions of simple robbery and of aggravated assault constitute violent
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Case: 20-10992 Document: 00516249052 Page: 3 Date Filed: 03/22/2022
No. 20-10992
felonies. See § 924(e)(2)(B). We recently decided that Texas simple robbery,
is divisible into robbery-by-injury, which may be committed recklessly, and
robbery-by-threat, which may only be committed “intentionally and
knowingly.” United States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022)
(quoting Tex. Penal Code Ann. § 29.02(a)). Robbery-by-injury no
longer qualifies as a violent felony post-Borden. See Garrett, 24 F.4th at 487-
91. Because robbery-by-threat may only be committed with an intentional
and knowing mens rea, however, a conviction under § 29.02(a)(2) qualifies
as a violent felony under the ACCA post-Borden. Id. at 491.
The only information in the record concerning Balderas’s prior
convictions is the presentence report’s characterization of the offenses which
do not indicate the subsection of conviction. Without that information, we
cannot determine whether the simple robbery conviction qualifies as a violent
felony under the ACCA post-Borden. We therefore vacate and remand this
matter for resentencing in light of Borden and Garrett. See United States v.
Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.2005). On remand, the district
court should permit the government to supplement the record with
appropriate documents that may establish the applicable elements of
Balderas’s prior offense. See id. Because we vacate and remand Balderas’s
entire sentence, we need not reach his challenge to the characterization of his
prior Texas aggravated assault conviction as a violent felony under the
ACCA.
VACATE AND REMAND.
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