United States v. Bell

Case: 21-10359 Document: 00516137276 Page: 1 Date Filed: 12/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 20, 2021
No. 21-10359 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael Shawn Bell,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-247-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Michael Shawn Bell appeals his guilty-plea conviction for being a felon
in possession of a firearm and his sentence of 180 months in prison pursuant
to the Armed Career Criminal Act (ACCA). According to Bell, the district
court erred by treating his prior Texas Penal Code § 30.02 convictions for
*
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opinion should not be published and is not precedent except under the limited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: 21-10359 Document: 00516137276 Page: 2 Date Filed: 12/20/2021
No. 21-10359
burglary of a habitation or building as violent felonies for purposes of the
ACCA. The Government has moved for summary affirmance based on this
court’s decision in United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en
banc), cert. denied, 141 S. Ct. 273 (2020). In the alternative, the Government
moves for an extension of time in which to file a brief.
In Herrold, 941 F.3d at 182, this court held that Texas burglary is
“generic burglary” and is therefore an enumerated-offense violent felony
under the ACCA. 1 Although Bell concedes only that his challenge is
“probably” foreclosed by this court’s precedent, he urges us to overrule
Herrold based on how other circuit courts of appeal have applied recent
Supreme Court precedent and the construction of Texas laws by Texas
courts. We are bound, however, 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.” United
States v. Montgomery, 974 F.3d 587, 590 n.4 (5th Cir. 2020) (internal
quotation marks and citation omitted), cert. denied, 141 S. Ct. 2823 (2021).
Accordingly, the district court did not err. See Herrold, 941 F.3d at 182.
In light of the foregoing, the Government’s opposed motion for
summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969), the alternative motion for an extension
of time in which to file a brief is DENIED as unnecessary, and the judgment
of the district court is AFFIRMED.
1
As a result, it is not the subject of the Supreme Court’s decision in Borden v.
United States, 141 S. Ct. 1817, 1825 (2021) addressing the elements clause.
2