United States v. Sosa

Case: 21-40035 Document: 00516247487 Page: 1 Date Filed: 03/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 21, 2022
No. 21-40035 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Modesto Sosa,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:19-CR-1286
Before Stewart, Clement, and Elrod, Circuit Judges.
Per Curiam:*
Modesto Sosa was convicted of conspiring to possess with intent to
distribute more than 50 grams of methamphetamine in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A). Prior to sentencing, Sosa requested that
he be granted safety valve relief pursuant to 18 U.S.C. § 3553(f)(1)-(5) so that
he could be sentenced below the mandatory minimum—120 months.
*
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opinion should not be published and is not precedent except under the limited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. 21-40035
Specifically, he argued that his 2014 family violence conviction under
§ 22.01(a)(1) of the Texas Penal Code did not preclude relief under Sessions
v. Dimaya, 138 S. Ct. 1204 (2018), and because his prior conviction was a
misdemeanor, not a felony. The district court considered Sosa’s objection
and overruled it, finding that his § 22.01(a)(1) conviction precluded safety
valve relief as it constituted a “crime of violence” under 18 U.S.C. § 16(a).
Sosa timely appealed.
On appeal, Sosa argues that his sentence cannot stand because § 16
has been deemed unconstitutionally vague and his § 22.01(a)(1) conviction
was a misdemeanor, not a felony. Sosa filed his brief on April 29, 2021. The
government responded approximately one month later. Since we received
the parties’ briefing, however, two major developments have occurred in this
area of the law.
First, on June 30, 2021, the Supreme Court held that offenses with a
mens rea of recklessness could not serve as violent felonies under the Armed
Career Criminal Act. Borden v. United States, 141 S. Ct. 1817, 1834 (2021).
Then, on December 20, 2021, we held that that a prior conviction for assault-
family violence under “Texas Penal Code § 22.01(a)(1) and (b)(2)(A) no
longer qualifies as a crime of violence because the only force element in those
statutory subsections includes a mens rea of recklessness.” United States v.
Greer, 20 F. 4th 1071, 1075 (5th Cir. 2021); see also Tex. Penal Code
§ 22.01(a)(1) (“A person commits an offense if the person: (1) intentionally,
knowingly, or recklessly causes bodily injury to another, including the person’s
spouse.” (emphasis added)).
On February 25, 2022, we directed the parties to address the impact
of Borden and Greer on Sosa’s sentence. In the government’s supplemental
letter brief, the government argues that: (1) Sosa waived any Borden issue; (2)
if he did not waive Borden, the issue should be reviewed for plain error; (3)
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on the merits, his 2014 conviction is not a crime of violence pursuant to
Borden and Greer; and (4) Sosa bears the burden on remand of establishing
his eligibility for safety valve relief.
The district court was not afforded the benefit of these intervening
authorities when sentencing Sosa in early 2021. Nor was Sosa afforded that
same benefit when filing his briefing on appeal. The government now
concedes, as it must, that Sosa’s 2014 conviction cannot constitute a crime
of violence. Accordingly, we conclude that Sosa’s sentence must be
VACATED, and the case REMANDED for resentencing, in light of
Borden v. United States, 141 S. Ct. 1817 (2021), and United States v. Greer, 20
F. 4th 1071 (5th Cir. 2021).
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