United States v. Dantana Tanksley

Case: 15-11078 Document: 00513840322 Page: 1 Date Filed: 01/18/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-11078 FILED

Conference Calendar January 18, 2017

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DANTANA TANKSLEY,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR PANEL REHEARING

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

REAVLEY, Circuit Judge:

In light of Mathis v. United States, 136 S.Ct. 2243 (2016), and United

States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), we granted defendant Dantana

Tanksley’s motion for panel rehearing to decide whether United States v. Ford,

509 F.3d 714 (5th Cir. 2007), still represents the law. Ford held that a

conviction for possession with intent to deliver a controlled substance under

section 481.112(a) of the Texas Health and Safety Code (“Section 481.112(a)”)

qualifies as a “controlled substance offense” under the United States

Sentencing Commission Guidelines Manual (the “Guidelines”). On rehearing,

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No. 15-11078

our prior panel opinion is WITHDRAWN, and this opinion is SUBSTITUTED

therefor.

I.

In 2015, Tanksley pleaded guilty to violating 18 U.S.C. § 922(g), which

prohibits convicted felons from possessing firearms. At sentencing, the district

court found that a prior conviction under Section 481.112(a) for possession with

intent to deliver a controlled substance constituted a “controlled substance

offense” within the meaning of the Guidelines, § 4B1.1. Tanksley objected to

this particular enhancement but conceded his objection was foreclosed by Ford.

Tanksley then appealed, again conceding that Ford foreclosed this argument.

Indeed, both of the arguments Tanksley made on appeal—he also disputed the

constitutionality of 18 U.S.C. § 922(g)—were admittedly foreclosed, and we

granted the government’s unopposed motion for summary affirmance. See

United States v. Tanksley, Case No. 15-11078, 2016 WL 4375058 (5th Cir. Aug.

16, 2016). Shortly before we affirmed Tanksley’s conviction and sentence, the

Supreme Court issued Mathis. Based on that decision and this Court’s decision

in Hinkle, Tanksley moved for panel rehearing. We granted the motion.

Mathis is relevant to the district court’s determination that the Section

481.112(a) conviction represented a controlled substance offense under the

Guidelines. “In determining if a prior conviction is for an offense enumerated

or defined in a Guidelines provision, we generally apply the categorical

approach and look to the elements of the offense enumerated or defined by the

Guideline section and compare those elements to the elements of the prior

offense for which the defendant was convicted.” United States v. Howell, 838

F.3d 489, 494 (5th Cir. 2016). Some criminal statutes, however, are “divisible,”

meaning a single statute “define[s] multiple crimes.” Mathis, 136 S.Ct. at

2249. The Supreme Court has “approved the ‘modified categorical approach’

for use with statutes having multiple alternative elements,” permitting courts

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to examine “a limited class of documents (for example, the indictment, jury

instructions, or plea agreement and colloquy) to determine what crime, with

what elements, a defendant was convicted of.” Id. With the precise crime thus

identified, the court can then apply the categorical approach, asking whether

that precise crime matches the Guidelines offense at issue. Id.

Some criminal statutes appear divisible but are not. These statutes,

rather than providing alternative elements, instead list “various factual means

of committing a single element.” Id. In Mathis, the Supreme Court held that

the modified categorical approach is not appropriate for this species of criminal

statute. Id. at 2257. More importantly here, it also “provided helpful guidance

for determining whether a predicate statute of conviction is divisible.” United

States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016). This factual and legal

backgrounded concluded, we turn to our analysis.

II.

We have been asked to find an otherwise controlling precedent obsolete.

While the defendant argues that, together, Mathis and Hinkle put Ford into

doubt, it is appropriate to focus our inquiry on Mathis. This is because, under

the rule of orderliness, “one panel of this Court may not overrule another.”

United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (quoting Cent. Pines

Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001)). As a corollary,

“to the extent that a more recent case contradicts an older case, the newer

language has no effect.” Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4

(5th Cir. 2000). If, however, a Supreme Court decision “expressly or implicitly”

overrules one of our precedents, we have the authority and obligation to declare

and implement this change in the law. See United States v. Kirk, 528 F.2d

1057, 1063 (5th Cir. 1976). “Such an intervening change in the law must be

unequivocal, not a mere ‘hint’ of how the Court might rule in the future.”

United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Accordingly, only

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Mathis can inter Ford, and we ignore Hinkle while asking whether the

Supreme Court unequivocally abrogated Ford. 1

Under Section 481.112(a), “a person commits an offense if the person

knowingly manufactures, delivers, or possesses with intent to deliver a

controlled substance” as defined elsewhere in the Code. Ford’s feature holding

was that a conviction for “‘possession with an intent to deliver’ a controlled

substance under section 481.112(a) . . . can be used as a basis for a sentence

enhancement as a ‘controlled substance offense’ under” the Guidelines. 509

F.3d at 715. That holding, if still applicable, controls this case because the

defendant here was also convicted of possession with intent to deliver a

controlled substance.

More important for our purposes, however, is Ford’s necessary predicate

holding—that Section 481.112(a) is a divisible statute such that (1) use of the

modified categorical approach is appropriate and (2) “possession with intent to

deliver” a controlled substance is a distinct crime from mere delivery of that

same controlled substance. This holding was crucial because, in United States

v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (per curiam), we had already held

that a conviction for delivery of a controlled substance under that same Section

481.112(a) was not a “drug trafficking offense” under the Guidelines. There

being no substantive difference between a “controlled substance offense” and a

“drug trafficking offense” under the Guidelines, the holding in Gonzales would

necessarily control the outcome in Ford if Section 481.112(a)’s reference to

1 Our approach would be different if Hinkle had considered whether Mathis

unequivocally overruled Ford. Such a ruling would have resolved this case as well. Hinkle

did not take this approach, instead simply recognizing that its conclusion is potentially

“contrary to prior precedent of this court” and identifying one affected case, United States v.

Garcia–Arellano, 522 F.3d 477 (5th Cir. 2008). See 832 F.3d at 574–57 & n.27. Accordingly,

Mathis’s impact on our precedents was not settled by that case.

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manufacture, delivery, and possession with intent to deliver merely set forth

three ways to commit one crime rather than three separate crimes.

To reconcile Gonzales, Ford explained that the “significant distinction”

was that defendant Jason Jermaine Ford been convicted “for possession with

the intent to deliver rather than just delivery or transportation.” Ford, 509

F.3d at 717. In other words, possession with intent to deliver and actual (or

mere) delivery are two separate crimes—one that qualifies as a controlled

substance offense, one that does not. We have subsequently recognized and

maintained this line drawn in Ford. See Vasquez-Martinez v. Holder, 564 F.3d

712, 718–19 (5th Cir. 2009). And, prior to Mathis, Section 481.112(a)’s status

as a divisible statute subject to a modified categorical approach was firmly

established. See, e.g., United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th

Cir. 2008).

The government contends that Ford does not utilize the modified

categorical approach, but the court in Ford looked at the defendant’s

indictment to determine that he had been convicted of possession with intent

to deliver a controlled substance rather than “just” delivery of a controlled

substance. 509 F.3d at 717. This is the modified categorical approach. In

Mathis, the Supreme Court clarified when this approach is proper: where a

single statute lists elements in the alternative, and thereby defines multiple

crimes. 136 S.Ct. at 2249. Because Ford concludes that Section 481.112(a)

contained distinct criminal offenses, it complies with this aspect of Mathis.

Accordingly, if the Supreme Court had merely resolved the circuit split on

when the modified categorical approach is proper, we would be unable to say

that it unequivocally abrogated Ford.

The Supreme Court went further though, and also instructed courts on

how to identify truly divisible statutes. Mathis explains that, in “easy” cases,

a state court decision directly provides an answer. Id. at 2256. Thus, “[i]n

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light of Mathis, we know that we must determine whether ‘listed items’ in a

state statute ‘are elements or means,’ and if ‘a state court decision definitively

answers the question’ our inquiry is at an end.” Howell, 838 F.3d at 498.

Mathis, which dealt with an Iowa burglary statute, was an easy case:

The listed premises in Iowa’s burglary law, the State Supreme

Court held, are “alternative method[s]” of committing one offense,

so that a jury need not agree whether the burgled location was a

building, other structure, or vehicle. [State v. Duncan, 312 N.W.2d

519, 523 (Iowa 1981).] When a ruling of that kind exists, a

sentencing judge need only follow what it says.

Mathis, 136 S.Ct. at 2256.

Here, too, a state court decision settles the question. In Lopez v. State,

Texas’ highest criminal court was “asked to decide whether a person’s offer to

sell three kilos of cocaine in the morning and his possession of cocaine with the

intent to deliver it to complete that same sale in the evening constitutes one

offense or two.” 108 S.W.3d 293, 294 (Tex. Crim. App. 2003). Thus, the case

was specifically about whether delivery (an offer to sell a controlled substance

amounts to delivery under Texas law, see Tex. Health & Safety Code

§ 481.002(8)) and possession with intent to deliver were separate offenses. The

court held that “Section 481.112 provides several different means for

committing the offense of delivery of a single quantity of drugs so that, no

matter where along the line of actual delivery—from the offer to sell, to the

possession of the drugs with the intent to deliver them, to the actual delivery

itself—the drug dealer may be held accountable for the gravamen of the

offense—the distribution of dangerous drugs in our society.” Id. at 299–300

(emphasis added). The means or elements question has been directly answered

by the Texas court.

Mathis is “more than merely illuminating with respect to the case before

us;” it unequivocally resolves the question in favor of Tanksley. See In re Texas

Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (quoting

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Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012)). Ford cannot

stand. Section 481.112(a) is an indivisible statute to which the modified

categorical approach does not apply.

We note that Hinkle reached essentially the same result for the same

reasons. See 832 F.3d at 574–76. The government does not dispute Hinkle,

instead describing it as “merely a straightforward application of Mathis.” (Gov.

Supp. Br. at 11.) We agree with this characterization. However, the

government’s only plausible line of argument was that, under the rule of

orderliness, Hinkle must be disregarded to the extent it is incompatible with

Ford. This is because, contrary to the government’s position, Section

481.112(a) cannot be divisible if violated by mere delivery and indivisible if

violated by possession with intent to deliver. Under such a reading, courts

would be required to undertake a modified categorical approach analysis

simply to determine if the modified categorical approach is proper. The legal

physics at play simply will not be permit a single statute to be both divisible

and indivisible. Hinkle’s holding that Section 481.112 is divisible was

vulnerable to challenge only under the rule of orderliness, and we now reject

that challenge.

Because the modified categorical approach is inappropriate in this case,

we cannot use it to “narrow” Tanksley’s conviction to “possession with intent

to deliver” a controlled substance. See Howell, 838 F.3d at 499. We instead

look to Section 481.112(a) as a whole in determining whether his conviction

thereunder qualifies as a controlled substance offense under the Guidelines.

Section 481.112(a) “criminalizes a ‘greater swath of conduct than the elements

of the relevant [Guidelines] offense.’” Hinkle, 832 F.3d at 576 (quoting Mathis,

136 S.Ct. at 2251). Tanksley’s conviction under that statute does not qualify

as a controlled substance offense under the Guidelines. Id.

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III.

The government contends that any error was harmless. “[T]he harmless

error doctrine applies only if the proponent of the sentence convincingly

demonstrates both (1) that the district court would have imposed the same

sentence had it not made the error, and (2) that it would have done so for the

same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna,

628 F.3d 712, 714 (5th Cir. 2010).

Here, the district court stated that “[e]ven if the guideline calculations

are not correct, this is the sentence the Court would otherwise impose under

18 U.S.C. § 3553.” Similar statements have been sufficient to establish

harmless error in other cases. See United States v. Richardson, 713 F.3d 232,

237 (5th Cir. 2013); United States v. Garcia, 647 F. App’x 408, 410 (5th Cir.

2016). Nonetheless, it is not enough for the district court to say the same

sentence would have been imposed but for the error. See United States v.

Bazemore, 608 F. App’x 207, 216 (5th Cir. 2015). “The government must point

to evidence in the record that convincingly demonstrates the district court

would impose the same sentence for the same reasons.” United States v.

Hernandez–Montes, 831 F.3d 284, 296 (5th Cir. 2016)

In this case, our review of the record does not convince us that the within-

Guidelines sentence imposed by the district court had nothing to do with the

Guidelines calculation. See id. at 295 (To establish harmless error, “the

government ‘must show that the [sentence] the district court imposed was not

influenced in any way by the erroneous Guideline calculation.’” (quoting

United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)). At the sentencing

hearing, the district court overruled Tanksley’s objection to the Guidelines,

§ 4B1.1 enhancement, expressly adopted the probation officer’s Guidelines

calculation, and pointed out that the sentence was at “the bottom of the

guidelines.” The district court’s Statement of Reasons indicates Tanksley was

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not sentenced “outside the advisory guideline system” and that “the Court

considered the advisory guidelines.” We cannot say “with the requisite

certainty” that the error was harmless. See Ibarra-Luna, 628 F.3d at 719.

IV.

Tanksley’s unopposed motion for leave to file a reply brief is GRANTED.

Tanksley’s sentence is VACATED, and we REMAND for resentencing.

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