United States v. Sosebee

Case: 20-11141 Document: 00516630862 Page: 1 Date Filed: 02/01/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2023
No. 20-11141 Lyle W. Cayce
consolidated with Clerk
No. 21-10780
United States of America,
Plaintiff—Appellee,
versus
Jackie Phillip Sosebee,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District Court of Texas
USDC Nos. 7:16-CV-80, 7:06-CR-22-1, 7:20-CR-41-1
Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Jackie Sosebee pled guilty to being a felon in possession of ammunition
in violation of 18 U.S.C. §§ 921(g)(1) and 922(e)(1) and was sentenced to 15
years’ imprisonment pursuant to the Armed Career Criminal Act
(“ACCA”), given his multiple prior violent felony convictions. While on
supervised release, Sosebee was again convicted of being a felon in possession
of ammunition, resulting in revocation of his release as well as a separate
conviction and an attendant sentence of 15 years and 3 months, again
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enhanced by the ACCA. Sosebee challenges the ACCA sentencing
enhancements in both cases. We DISMISS as moot his claim regarding his
first federal conviction and sentence, and we AFFIRM the sentence of his
second federal conviction.
I.
A.
Prior to the two federal convictions giving rise to this consolidated
appeal, Sosebee committed three Texas state crimes. First, a Texas court
convicted Sosebee of robbery in 1985. Second, Sosebee pled guilty to burglary
of habitation that year. Third, Sosebee pled guilty to another charge of
burglary of habitation in 2002.
In 2007, Sosebee pled guilty to being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district
court enhanced Sosebee’s sentence under the ACCA and sentenced him to
180 months’ imprisonment,1 the mandatory minimum under the ACCA, as
well as three years of supervised release. In July 2019, Sosebee was released
from prison and began his term of supervised release.
While on supervised release in January 2021, Sosebee committed
another crime: a jury convicted him of being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), resulting in a
sentence of 188 months’ imprisonment, again enhanced under the ACCA.
As a result, the district court revoked Sosebee’s term of supervised release
and sentenced him to an additional 24 months’ imprisonment for the 2007
conviction—commonly referred to as a “revocation term”—which was to
run concurrently with the 2021 conviction.
1
See 18 U.S.C. § 924(e)(1).
2
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B.
In 2016, Sosebee filed a § 2255 motion to vacate, set aside, or correct
the sentence imposed following his 2007 guilty plea, which the district court
denied. In November 2020, Sosebee filed a notice of appeal (the “first
action”).2 This Court issued a COA as to “whether Texas robbery qualifies
as a ‘violent felony’ under the ACCA.”3
Sosebee filed a notice of appeal of his 2021 conviction and sentence
(the “second action”).4 Sosebee then filed a motion to consolidate the two
cases,5 which was granted.6
II.
“Whether an appeal is moot is a jurisdictional matter, since it
implicates the Article III requirement that there be a live case or
controversy.”7 “Under Article III’s case-or-controversy requirement, ‘[t]o
invoke the jurisdiction of a federal court, a litigant must have suffered, or be
threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.’”8 “This case-or-controversy
requirement subsists through all stages of federal judicial proceedings, trial
2
Notice of Appeal, No. 20-11141 (5th Cir., Nov. 13, 2020) (Dkt. No. 1).
3
Order Granting Motion for Certificate of Appealability, No. 20-11141 (5th Cir.
Nov. 10, 2021) (Dkt. No. 37-2) (emphasis added).
4
See Notice of Appeal, No. 21-10780 (5th Cir. Aug. 5, 2021) (Dkt. No. 1).
5
See Unopposed Motion to Consolidate, No. 20-11141 (5th Cir. Dec. 17, 2021)
(Dkt. No. 46).
6
Order, No. 20-11141 (5th Cir. Dec. 20, 2021) (Dkt. No. 51).
7
Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987).
8
United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (quoting Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)).
3
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and appellate . . . . The parties must continue to have a personal stake in the
outcome of the lawsuit.”9 In other words, “[a] case becomes moot only when
it is impossible for a court to grant any effectual relief whatever to the
prevailing party.”10 “[A]s long as the parties have a concrete interest,
however small, in the outcome of the litigation, the case is not moot.” 11
Shortly before oral argument, this Court directed the parties to be
prepared to address whether Sosebee’s appeal of the order denying his
§ 2255 motion is moot.12 In response, the Government filed a Rule 28(j) letter
detailing additional information regarding Sosebee’s incarceration, averring
that “Sosebee will have actually served (as of the date of oral argument) 27
months and 19 days on that aggregate sentence—or 3 months and 19 days
longer than his 24-month revocation sentence.”13 In other words, Sosebee
had completed his “term of imprisonment imposed following the revocation
of his supervised release” and had “no remaining supervised release term
that may be modified or terminated.”14 As a result, even a favorable
determination in this action will have no impact on his sentence, meaning it
9
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis, 494 U.S. at 477–78).
10
Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (quoting City
of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)).
11
Id. (alteration in original) (quoting Ellis v. Bhd. Ry., Airline & S.S. Clerks, Freight
Handlers, Exp. & Station Emps., 466 U.S. 435, 442 (1984)).
12
Order, No. 20-11141 (5th Cir. Nov. 28, 2022) (Dkt. No. 92).
13
Letter, No. 20-11141 (5th Cir. Nov. 30, 2022) (Dkt. No. 98).
14
United States v. Nelson, 410 F. App’x 734, 735 (5th Cir. 2010) (per curiam)
(unpublished); see also Order, In re: Moses Smith, No. 16-40952 (5th Cir. July 27, 2016) (Dkt.
No. 15) (holding that a § 2255 motion was moot where the defendant “is in custody as a
result of his violation of the terms of his supervised release,” “has completed his term of
imprisonment[,] and faces no additional term of supervised release”).
4
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is “impossible for [us] to grant any effectual relief” to him. 15 That Sosebee
cannot obtain any form of relief stands in stark contrast to other cases in
which a defendant had time remaining in their revocation sentences such
that, upon prevailing, his sentence could have been reduced pursuant to
Bureau of Prisons regulations that “credit” time served beyond what was
appropriate in the initial sentence to the revocation sentence.16 Lacking the
ability to provide Sosebee any relief, we dismiss his appeal of the § 2255 order
as moot.
III.
The ACCA provides that anyone who “knowingly violates subsection
. . . (g) of section 922 shall be fined under this title, imprisoned for not more
than 15 years, or both.”17 It also provides that any defendant with “three
previous convictions by any court . . . for a violent felony . . . shall be fined
under this title and imprisoned not less than fifteen years,” 18 thereby
addressing the “special danger” associated with “armed career criminals.” 19
The Act defines a “violent felony” as:
15
Knox, 567 U.S. at 307 (quoting City of Erie, 529 U.S. at 287).
16
See United States v. Jackson, 952 F.3d 492, 498 (4th Cir. 2020) (citing BOP
PROGRAM STATEMENT § 5880.28, SENTENCE COMPUTATION MANUAL 1–69 (1999)); see
also United States v. Penn, 788 F. App’x 337, 340 (6th Cir. 2019) (unpublished) (holding a
prisoner’s case was not moot where there was remaining time left on his revocation
sentence because prevailing would shorten his sentence by several years); Parker v. Sproul,
No. 18-1697, 2022 WL 258586, at *2 (7th Cir. Jan. 27, 2022) (holding that a prisoner’s case
was not moot where “excess time spent in prison . . . [could] be credited toward a prison
term for revocation of the supervised release tied to that crime”(citing Jackson, 952 F.3d
at 498)).
17
18 U.S.C. § 924(a)(8).
18
Id. § 924(e)(1).
19
Begay v. United States, 553 U.S. 137, 146 (2008).
5
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any crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.20
“Subsection (i) of this definition is known as the elements clause.”21
The beginning of subsection (ii) is known as the enumerated offenses clause,
while “the end of subsection (ii)—‘or otherwise involves conduct that
presents a serious potential risk of physical injury to another’—is known as
the residual clause.”22
In 2010, the Supreme Court in Johnson v. United States struck down
the residual clause as unconstitutionally vague while upholding the remaining
definitions of the term “violent felony.”23 Last year, the Supreme Court in
Borden v. United States added another constraint to the definition of a violent
felony: an offense with a mens rea of recklessness “cannot so qualify.”24 But
since Johnson, we, along with our sister Circuits, have been adjudicating
whether a given criminal act is or is not a “violent felony” for purposes of the
ACCA, navigating Borden and other applicable Supreme Court precedent.
20
18 U.S.C. § 924(e)(2)(B).
21
Welch v. United States, 578 U.S. 120, 123 (2016).
22
Id.23
559 U.S. 133, 145 (2010).
24
141 S. Ct. 1817, 1822 (2021).
6
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Last year, this Court addressed whether a Texas robbery-by-threat
conviction is “a valid ACCA predicate for an enhanced sentence” post-
Borden.25 In United States v. Garrett, we held that we must “look at the statute
itself and examine the elements of that crime; that is to say, we apply a
categorical analysis to determine whether the statute itself necessarily and
invariably requires the ‘use . . . or threatened use of physical force.’”26 The
Court reasoned that the Texas robbery statute is “divisible,”27 meaning that
it “create[s] multiple distinct crimes, some violent, some non-violent.”28 We
further held that robbery-by-injury did not constitute a violent crime for
purposes of the ACCA while robbery-by-threat did.29
Sosebee takes issue with Garrett’s reasoning, but as the Government
correctly notes, “Sosebee’s arguments against Garrett cannot change that
Garrett is binding precedent and has been uniformly followed by other panels
of this Court since it was decided.” Indeed, “[w]e are bound by our
precedent ‘in the absence of an intervening contrary or superseding decision
by this court sitting en banc or by the United States Supreme Court,’ neither
of which has occurred.”30 To that end, we have repeatedly relied on Garrett
to affirm ACCA enhancements predicated upon Texas robbery-by-threat
convictions,31 just as additional published precedent has relied on Garrett in
25
United States v. Garrett, 24 F.4th 485, 487 (5th Cir. 2022).
26
Id. at 488 (quoting Borden, 141 S. Ct. at 1822).
27
Id. at 491.
28
Id. at 488 (citing Mathis v. United States, 579 U.S. 500, 505 (2016)).
29
Id. at 491.
30
United States v. Montgomery, 974 F.3d 587, 590 n.4 (5th Cir. 2020) (quoting
United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010)).
31
See, e.g., United States v. Senegal, No. 19-40930, 2022 WL 4594608, at *1 (5th
Cir. Sept. 30, 2022) (per curiam) (unpublished) (“[A] Texas robbery-by-threat conviction
satisfies the ACCA’s elements clause.”); United States v. Landaverde-Leon, No. 21-40808,
7
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related retroactivity analysis.32 Recently, a separate panel of this Court made
clear that it “agree[d] with—and are bound by—Garrett’s reasoning.”33 So
we apply Garrett’s modified categorical framework and mimic its process to
determine if Sosebee was convicted of robbery-by-injury or robbery-by-
threat.
In Garrett, we “look[ed] to the indictment and the judicial
confession” to show that the defendant’s offense “pertain[ed] to robbery-
by-threat” rather than robbery-by-injury, meaning the defendant’s
conviction “is thus a violent felony under the ACCA and may serve as a
predicate to an enhanced sentence.”34 The same is true in the instant action.
Sosebee’s robbery conviction similarly recites the statutory language
pertaining to robbery-by-threat—“intent to obtain property . . . and there
intentionally and knowingly threaten and place [the victim] in fear of imminent
bodily injury.”35 By contrast, the Information makes no mention of robbery-
2022 WL 2208400, at *1 (5th Cir. June 21, 2022) (per curiam) (unpublished) (affirming
Garrett’s holding vis-à-vis divisibility and the classification of each robbery as an ACCA
predicate or not); United States v. Balderas, No. 20-10992, 2022 WL 851768, at *1 (5th Cir.
Mar. 22, 2022) (per curiam) (unpublished) (“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.’” (quoting
Garrett, 24 F.4th at 589)); United States v. Lipscomb, No. 18-11168, 2022 WL 327472, at *1
(5th Cir. Feb. 3, 2022) (per curiam) (unpublished) (“[T]he issue before us on remand is
how the Borden decision affects [the defendant’s] sentence. In light of our recent decision
in United States v. Garrett, the answer is: not at all.”).
32
See United States v. Jackson, 30 F.4th 269, 275 (5th Cir. 2022) (citing Garrett
favorably when considering retroactivity of ACCA enhancements, i.e., whether it was
permissible to apply law as it existed at sentencing rather than as it existed when he
committed the crime), cert. denied, 143 S. Ct. 252 (2022).
33
United States v. Wheeler, No. 19-11022, 2022 WL 17729412, at *2 (5th Cir. Dec.
16, 2022) (per curiam) (unpublished).
34
Id.
35(Emphasis added).
8
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by-injury nor does it cite the language from that divisible crime. Sosebee
acknowledges as much, citing to the Information setting forth offense
conduct and arguing that this Court should overturn Garrett. Plainly, Sosebee
does not dispute that he committed robbery-by-threat. Bound by Garrett, and
on the record facts before us, we affirm Sosebee’s ACCA-enhanced
sentence.36
****
We DISMISS as moot Sosebee’s claim regarding his first federal
conviction and attendant sentence, and we AFFIRM the sentence attendant
to his second federal conviction.
36
Months after the conclusion of briefing and more than a week after oral argument
in this action, Sosebee moved to file a supplemental brief, seeking to make a new argument
premised upon the Supreme Court’s decision in Wooden v. United States, 142 S. Ct. 1063
(2022), which was issued in March 2022. The Federal Public Defender’s Office tried to
make this same motion in Wheeler, again doing so “[m]onths after the conclusion of briefing
and two weeks after oral argument in this case.” Wheeler, 2022 WL 17729412, at *4 n.3. As
the Wheeler panel dismissed this motion, so do we:
[Sosebee] concedes that “he did not raise any challenge to the” different
occasions determination at the earlier sentencing, the new sentencing, or
in his initial brief. Moreover, this precedent was available to [Sosebee] 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.
Id.9