United States v. Lipscomb

Case: 18-11168 Document: 00516190841 Page: 1 Date Filed: 02/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2022
No. 18-11168
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Eddie Lamont Lipscomb,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-357-M
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Clement, Ho, and Duncan, Circuit Judges.
Per Curiam:*
This case returns to us because the Supreme Court granted Mr.
Lipscomb’s petition for certiorari, vacated our earlier decision, and
*
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opinion should not be published and is not precedent except under the limited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: 18-11168 Document: 00516190841 Page: 2 Date Filed: 02/03/2022
No. 18-11168
remanded the case for further consideration in view of its recent decision in
Borden v. United States, 141 S. Ct. 1817 (2021).
In 2007, Mr. Lipscomb pleaded guilty to a one-count federal
indictment charging him with illegal possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g). The district court sentenced him to twenty
years in prison—a sentence that fell between the 15-year statutory minimum
required by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),
and the 24-year bottom of the sentencing guidelines. A panel of this court
affirmed in United States v. Lipscomb, 619 F.3d 474, 476 (5th Cir. 2010).
Mr. Lipscomb later requested release under 28 U.S.C. § 2255 in view
of Johnson v. United States, in which the Supreme Court struck down the
residual clause of the ACCA’s “violent felony” definition as
unconstitutionally vague and violative of due process. 576 U.S. 591, 597
(2015); see 18 U.S.C. § 924(e)(2)(B)(ii). The district court granted Mr.
Lipscomb’s motion for release, concluding that he did not have the requisite
three violent felonies to qualify as an armed career criminal. 18 U.S.C.
§ 924(e)(1). We initially reversed, vacating the district court’s order granting
Mr. Lipscomb’s motion for release and remanding to the district court with
instructions to reinstate its original judgment.
The basis for our holding was our determination that Mr. Lipscomb
had at least three prior convictions for violent felonies—two burglary
convictions, and two robbery convictions—and thus qualified for a sentence
enhancement under the ACCA.1 At the time, our precedent compelled that
1
As we noted in our previous order, Mr. Lipscomb’s criminal record actually
reflects four robbery convictions—one in 1994 and three in 2004. However, because the
Government did not contend that the three 2004 robbery convictions were “committed on
occasions different from one another” and because it did not change our analysis, we
2
Case: 18-11168 Document: 00516190841 Page: 3 Date Filed: 02/03/2022
No. 18-11168
result. See, e.g., United States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019)
(holding that robbery under Texas Penal Code § 29.02(a), either by injury or
threat, was a violent felony within the meaning of the ACCA); see also 18
U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” to include “burglary”).
But in July of 2021, the Supreme Court decided Borden, in which it
held that offenses criminalizing a mens rea of “recklessness” do not satisfy
the ACCA’s elements clause and thus do not qualify as predicate “violent
felonies” for purposes of the ACCA. 141 S. Ct. at 1825. So, the issue before
us on remand is how the Borden decision affects Mr. Lipscomb’s sentence.
In light of our recent decision in United States v. Garrett, the answer is: not at
all. United States v. Garrett, -- F. 4th --, 2022 WL 214472, at *1 (5th Cir.
2022).
Section 29.02(a) of the Texas Penal Code defines the offense of simple
robbery as follows:
(a) A person commits an offense if, in the course of committing
theft as defined in Chapter 31 and with intent to obtain or
maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another; or
(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or
death.
In Garrett, we held that § 29.02(a) is divisible and creates two distinct
crimes: robbery-by-injury, under § 29.02(a)(1); and robbery-by-threat, under
§ 29.02(a)(2). Id. at *3. This means that we apply the modified categorical
approach to determine which offense is the crime of conviction. Id. at *4.
treated the three 2004 robbery convictions as one. See 18 U.S.C. § 924(e)(1). We continue
to do so here.
3
Case: 18-11168 Document: 00516190841 Page: 4 Date Filed: 02/03/2022
No. 18-11168
Under the modified categorical approach, to determine the crime of
conviction, we may refer to “a limited class of documents, such as a ‘charging
document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.’”
United States v. Enrique-Ascencio, 857 F.3d 668, 676 (5th Cir. 2017) (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)). “Proper documents are
limited to ‘conclusive records made or used in adjudicating guilt.’” Id.(quoting Shepard, 544 U.S. at 21).
Here, Mr. Lipscomb’s conviction documents reflect that his 1994
robbery conviction was for “ROBBERY/TBI,” which corresponds to
“Threat of Bodily Injury.” That is a § 29.02(a)(2) conviction. Because a
defendant cannot violate § 29.02(a)(2) recklessly—rather, only intentionally
or knowingly—a conviction under § 29.02(a)(2) qualifies as a predicate
violent felony for purposes of an ACCA sentence enhancement.
Therefore, Mr. Lipscomb has three predicate violent felony
convictions: two burglary convictions, and at least one qualifying robbery
conviction. As such, he is an armed career criminal and eligible for a sentence
enhancement under the ACCA.
* * *
Accordingly, we AFFIRM our prior judgment. The district court’s
order granting Mr. Lipscomb’s motion for release under 28 U.S.C. § 2255 is
once again VACATED and REMANDED for the district court to
reinstate its original judgment.
4