The opinion
Case: 20-11169 Document: 00516260451 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 20-11169
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Devoris Lamont Jackson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-637
Before Smith, Costa, and Wilson, Circuit Judges.
Gregg Costa, Circuit Judge:
When Devoris Jackson unlawfully possessed a firearm, our precedent
did not treat his burglary convictions as violent felonies that could enhance
his sentence under the Armed Career Criminal Act (ACCA). But by the time
he was sentenced for the gun crime, the Supreme Court had rejected our
view. The district court thus counted Jackson’s burglary convictions as
violent felonies. The principal issue on appeal is whether using the new
precedent to enhance Jackson’s sentence violated due process.
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I
It is unlawful for felons to possess a firearm. 18 U.S.C. § 922(g)(1).
Felon-in-possession convictions typically carry a maximum ten-year penalty.
18 U.S.C. § 924(a)(2). But the ACCA increases the penalty to a fifteen-year
minimum if the defendant “has three previous convictions . . . for a violent
felony.” Id. § 924(e)(1). A “violent felony” is any crime punishable by more
than one year in prison 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, [or] involves the use of explosives.” Id.
§ 924(e)(2)(B).
The district court applied the ACCA at Jackson’s sentencing—
imposing the minimum sentence of fifteen years—after he pled guilty to
possessing a firearm as a felon. The court treated Jackson’s Texas aggravated
robbery conviction and two Texas burglary-of-a-habitation convictions as the
violent felonies compelling the enhanced sentence.
II
As he did in the district court, Jackson concedes that his Texas
burglary-of-a-habitation convictions qualify as violent felonies under current
precedent. 1 See United States v. Herrold (Herrold II), 941 F.3d 173, 177, 182
(5th Cir. 2019) (en banc), cert. denied, 141 S. Ct. 273 (2020). Jackson argues,
however, that the Due Process Clause required the district court to instead
apply our precedent as it existed when he committed the gun crime in August
2018.
1
He challenges that caselaw only to preserve an attempt to seek its reversal in the
Supreme Court.
2
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Understanding Jackson’s claim requires a brief history of our changing
precedent on whether Texas burglary of a habitation is an ACCA predicate.
When Congress named “burglary” a violent felony, it “had in mind a
modern ‘generic’ view” of the crime. Taylor v. United States, 495 U.S. 575,
589 (1990). Generic burglary is the “unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Id. at
599. Shortly before Jackson was caught in possession of the firearm, we held
that Texas burglary of a habitation was broader than generic burglary because
it reached defendants who formed intent to commit a crime after entering the
building. United States v. Herrold (Herrold I), 883 F.3d 517, 532–36 (5th Cir.
2018) (en banc), vacated, 139 S. Ct. 2712 (2019). That precedent was short-
lived. The following year, the Supreme Court resolved a circuit split and held
that generic burglary occurs regardless of when intent is formed. Quarles v.
United States, 139 S. Ct. 1872, 1875 (2019). Because we were on the wrong
side of the split, the Supreme Court returned Herrold to us. 139 S. Ct. 2712
(2019). Bound by stare decisis, we then held that Texas burglary of a
habitation is generic burglary and thus is a violent felony. Herrold II, 941 F.3d
at 177, 182. Herrold II was on the books when Jackson was sentenced.
Jackson contends that it was unconstitutional for the district court to
apply the law as it existed when he was sentenced rather than when he
committed the crime. He relies on the due process principle that guarantees
notice of what conduct is criminal and the punishment that attaches to each
crime. See Johnson v. United States, 576 U.S. 591, 595–96 (2015). One
corollary of that notice requirement is a bar on the retroactive application of
a judicial interpretation of a criminal law when the decision is “unexpected
and indefensible by reference to the law which had been expressed prior to
the conduct at issue.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).
The “unexpected and indefensible” qualifier recognizes that most
judicial decisions apply retroactively. After all, an outright prohibition on
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retroactive application “would place an unworkable and unacceptable
restraint on normal judicial processes and would be incompatible with the
resolution of uncertainty that marks any evolving legal system.” Rogers v.
Tennessee, 532 U.S. 451, 461 (2001).
What makes a judicial ruling “unexpected and indefensible”? The
Civil Rights Era case that gave rise to this antiretroactivity doctrine is
illustrative. In Bouie v. City of Columbia, the Supreme Court invalidated
convictions of two African-American college students who were arrested for
‘sitting in’ at a whites-only lunch counter. 378 U.S. at 348–49. The students
had been charged under South Carolina’s criminal trespass statute, which
prohibited “entry” onto another’s property “after notice prohibiting [the]
same.” Id. at 349 n.1. South Carolina courts had long read the statute to
require pre-entry notice. Id. at 356. The state supreme court nonetheless
affirmed the students’ convictions, holding that the law also criminalized
remaining on another’s property after being asked to leave. Id. at 350. That
novel reading of the statute could not be applied retroactively, the Supreme
Court of the United States held, because the state’s preexisting law did not
suggest that the students might be jailed for “sit[ting] quietly” in the
restaurant. See id. at 348.
The hallmarks of the Bouie situation when a law cannot apply
retroactively include stark divergence from the statutory text, departure from
prior caselaw, inconsistency with the expectations of the legislature and law
enforcement, and the criminalization of otherwise innocent conduct. Bouie,
378 U.S. at 355–56, 361–63. 2 Those hallmarks are absent here.
2
Only one other time has the Supreme Court found a Bouie violation. Marks v.
United States, 430 U.S. 188 (1977)—a decision better known for trying to explain which of
many separate opinions in a decision is controlling, see id. at 192–94—barred the retroactive
application of the obscenity definition announced in Miller v. California, 413 U.S. 15 (1973).
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First and foremost, classifying Texas burglary of a habitation as a
violent felony is not “clearly at variance” with the ACCA’s text. See Bouie,
378 U.S. at 356. The ACCA defines “violent felony” to include “burglary.”
18 U.S.C. § 924(e)(2)(B)(ii). Judges can debate whether this generic
reference to “burglary” includes a burglary law that allows intent to be
formed after entry, but a layperson reading the law would likely expect Texas
burglary to be an ACCA predicate. Contrast Bouie, 378 U.S. at 355–56
(holding that extending South Carolina’s trespassing statute to remaining on
another’s property after being asked to leave was inconsistent with the law’s
text barring only “entry” upon another’s property). Treating Texas burglary
as a violent felony did not read into the statute “an intention which the
[ACCA’s] words themselves did not suggest.” See id. at 362 (quoting United
States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 86 (1820) (Marshall, C.J.)).
Nor was counting Jackson’s burglary convictions as violent felonies
“unexpected” in light of precedent. In fact, Herrold I’s fleeting holding—
that Texas burglary of a habitation was not generic burglary—departed from
a quarter century of Fifth Circuit caselaw. Compare Herrold I, 883 F.3d at
517, with United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992); United
States v. Constante, 544 F.3d 584, 586–87 (5th Cir. 2008); and United States
v. Uribe, 838 F.3d 667, 671 (5th Cir. 2016) (all considering Texas burglary of
a habitation an ACCA predicate). Herrold I was a closely divided (8-7) en
banc decision. And it clashed with other circuits’ view that generic burglary
includes burglaries with post-entry intent. See United States v. Bonilla, 687
Miller, which asked whether the materials lack “serious literary, artistic, political, or
scientific value,” punished conduct innocent under the prior “utterly without redeeming
social value” test. Marks, 430 U.S. at 194. In the 45 years since Marks, the Supreme Court
thrice has rejected Bouie claims. See Brian R. Means, Postconviction
Remedies § 41:2 (2021) (reviewing those decisions and generally noting the narrowness
of the doctrine).
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F.3d 188, 193–94 (4th Cir. 2012) (finding Texas burglary generic and thus a
“violent felony” under the ACCA); see also United States v. Priddy, 808 F.3d
676, 684 (6th Cir. 2015) (deeming Tennessee’s similar burglary statute
generic). That circuit split created a reasonable likelihood that the Supreme
Court would resolve the disagreement. It soon did so. Quarles, 139 S. Ct. at
1872; Herrold, 139 S. Ct. at 2712 (vacating Herrold I and remanding for
reconsideration in light of Quarles).
That the Supreme Court’s resolution of a circuit split prompted the
ruling Jackson calls “unexpected and indefensible” reveals bigger problems
with his argument. It is difficult to see how a high court decision overruling
an intermediate one could be an unforeseeable change in law; our decisions are
always subject to Supreme Court review. And it is not even clear that
applying Herrold II to Jackson was in any way retroactive because it was a
later phase of the very case he says should control. At a minimum, it is not
reasonable to treat a divided decision of an intermediate court like ours as
providing the unalterable notice that Bouie contemplates. Contrast Bouie, 378
U.S. at 356–57 (noting that the Supreme Court of South Carolina’s ruling
upholding the trespass prosecution for the sit-in went against almost a
hundred years of the state high court’s having “uniformly emphasized the
notice-before-entry requirement”).
Finding a retroactivity problem when a high court overrules a lower
one would undermine vertical precedent. It would mean that anytime the
Supreme Court resolves a circuit split on the interpretation of a criminal
statute in favor of the government, the high court’s decision could not be
applied to pending prosecutions in the circuit that had taken the pro-
defendant position (it could not apply even to the Supreme Court defendant
if the decision reversed circuit precedent that predated the defendant’s
crime).
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We are not aware of any case ever so holding despite this being a
common occurrence. Consider a Supreme Court decision from just a few
years before Quarles. Voisine v. United States, 579 U.S. 686 (2016), likewise
resolved a circuit split in favor of the government, holding that reckless
domestic assault counts as a “misdemeanor crime of domestic violence” that
prevents one from possessing a gun. At least two circuits (including ours)
that had pre-Voisine caselaw requiring a mens rea higher than recklessness for
similarly-worded provisions applied the Supreme Court’s reasoning to cases
already in the pipeline when Voisine issued. See United States v. Burris (Burris
I), 920 F.3d 942, 952–53 (5th Cir. 2019), vacated on other grounds, 141 S. Ct.
2781 (2021); United States v. Pam, 867 F.3d 1191, 1207–08 (10th Cir. 2017). 3
The contrary idea—that due process prevents us from applying Supreme
Court caselaw that overrides earlier circuit precedent to already-pending
cases—would deprive the Supreme Court of its final say.
What we have said so far is enough to doom Jackson’s due process
claim. We also note that Quarles did not “make previously innocent conduct
criminal.” See Proctor v. Cockrell, 283 F.3d 726, 732 (5th Cir. 2002).
Possessing a firearm with a prior felony conviction was a federal crime long
before Jackson’s offense. See 18 U.S.C. § 922(g)(1); contrast Marks, 430 U.S.
at 191 (finding a due process violation because new definition of obscenity
criminalized acts that were legal at the time of the challenged conduct).
None of the features of the egregious state court decision that led
Bouie to find a due process violation exist here. And our court has never
3
These cases’ view that Voisine’s holding about mens rea also governed the
ACCA’s definition of “violent felony” requiring the “use . . . of physical force” was later
rejected by the Supreme Court. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021)
(holding that a crime requiring only a mens rea of recklessness does not qualify as a “violent
felony” under ACCA’s element clause). Our point, however, is that neither Burris nor
Pam saw a problem with applying Voisine to crimes that occurred before Voisine issued.
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recognized a Bouie violation. See United States v. Kay, 513 F.3d 432, 441–46
(5th Cir. 2007); United States v. Martinez, 496 F.3d 387, 389–90 (5th Cir.
2007) (both rejecting Bouie claims). Nor have we seen a case from any court
holding that the Supreme Court’s abrogation of circuit precedent cannot be
applied to conduct occurring before the high court ruled. This case should
not be the pioneer in either of those categories. It was neither “unexpected”
nor “indefensible” when the Supreme Court abrogated an 8-7 decision of our
en banc court, siding with circuits that had held generic burglary did not
require intent to commit a crime contemporaneous with entry into the
building. Applying that same interpretation of the law to crimes occurring in
this circuit during the brief interregnum between Herrold I and Quarles was
neither unexpected nor indefensible.
It did not violate due process to count Jackson’s burglary convictions
as violent felonies.
III
The district court thus properly sentenced Jackson as an armed career
criminal if his Texas aggravated robbery conviction is a third violent felony.
This conviction qualifies under the ACCA’s elements clause if it “has as an
element the use, attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
On this issue, Jackson is aided rather than hindered by a recent
Supreme Court decision that abrogated some of our caselaw. A crime falls
within the elements clause only if it requires the defendant to act with
purpose or knowledge. Borden, 141 S. Ct. at 1834 (“Offenses with a mens
rea of recklessness do not qualify as violent felonies under ACCA . . .
[because] [t]hey do not require . . . the active employment of force against
another person.”); see United States v. Greer, 20 F.4th 1071, 1076 (5th Cir.
2021) (recognizing Borden as an intervening change in the law abrogating our
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inconsistent precedent). Jackson points out that one predicate for Texas
aggravated robbery—robbery-by-injury, see Tex. Penal Code
§ 29.02(a)(1)—allows conviction based on mere recklessness. United States
v. Garrett, 24 F.4th 485, 488–89 (5th Cir. 2022). It follows under the
categorical approach, he contends, that no Texas aggravated robbery
conviction is a volent felony.
Normally Jackson might have a point; courts usually look at the
elements of the entire statute to determine if all iterations of the crime have
the required force element. Borden, 141 S. Ct. at 1822. But when a statute is
divisible into multiple crimes, the court may look to “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.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Those
documents show that the predicate for Jackson’s aggravated robbery was
robbery-by-threat, see Tex. Penal Code § 29.02(a)(2), which does
require a mens rea higher than recklessness. 4 Garrett, 24 F.4th at 491 (holding
that “intentionally or knowingly threatening or placing another in fear of
imminent bodily injury or death plainly constitutes the ‘threatened use of
physical force’ under the ACCA”).
Jackson’s reliance on the insufficient mens rea of robbery-by-injury
thus depends on his showing that the Texas simple robbery statute is
indivisible and must be viewed as a whole. But we recently reaffirmed that
the robbery statute is divisible and creates two distinct crimes. Garrett, 24
4 Jackson’s judicial confession and the corresponding indictment show that his
predicate offense was robbery-by-threat. Both documents explain that Jackson “did . . .
intentionally and knowingly threaten and place [the victim] in fear of imminent bodily
injury and death.” These documents closely track the language of the robbery-by-threat
statute and do not mention the bodily injury required for a robbery-by-injury conviction.
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F.4th at 489–90. Because the modified categorical approach shows that
Jackson was convicted of the qualifying predicate of robbery-by-threat, it
does not matter that a different predicate is not considered a violent felony.
Garrett addressed only a simple robbery conviction. But as common
sense suggests, the fact that Jackson committed an aggravated robbery does
not transform his violent felony into a nonviolent one. United States v. Powell,
No. 18-11050, 2022 WL 413943, at *2 n.3 (5th Cir. 2022) (unpublished)
(“[R]obbery-by-threat, whether simple or aggravated, is a violent felony
under the ACCA.”). Aggravated robbery requires a simple robbery predicate
plus an aggravating circumstance such as serious bodily injury, the use or
exhibition of a deadly weapon, or a vulnerable victim. Tex. Penal Code
§ 29.03(a). When the underlying robbery—here robbery-by-threat—has as
an element “the use, attempted use, or threatened use of physical force
against the person of another,” the aggravating circumstance is irrelevant for
ACCA purposes. To establish the underlying simple robbery, the state had
to prove a crime that falls within the ACCA’s elements clause.
Jackson’s aggravated robbery conviction is also a violent felony.
***
We AFFIRM.
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