United States v. Kerstetter

Case: 22-10253 Document: 00516907312 Page: 1 Date Filed: 09/25/2023

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

____________ FILED

September 25, 2023

No. 22-10253 Lyle W. Cayce

____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Dylan Gregory Kerstetter,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CR-35-1

______________________________

Before Smith, Southwick, and Higginson, Circuit Judges.

Per Curiam:

Dylan Gregory Kerstetter pled guilty to possession of a firearm by a

felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, he argues that a

sentencing enhancement that requires certain prior convictions be for

offenses committed on different occasions could not be applied unless the

facts supporting it were charged in the indictment and admitted by the

accused or proved to a jury. He also argues that his prior convictions did not

qualify for the enhancement.

We AFFIRM.

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No. 22-10253

Factual and Procedural Background

In 2019, Dylan Kerstetter was stopped by police in Dallas, Texas,

because his vehicle allegedly had false license plates. One thing led to

another. First, an officer saw a bag of suspected methamphetamine on the

floorboard of the car. A later search discovered more illegal drugs. Finally,

officers found two firearms, one in the car’s console and the other in a

backpack sitting on the back seat.

In January 2020, a federal grand jury indicted Kerstetter for being a

felon in possession of a firearm, violating 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Later that year, Kerstetter stipulated that he was guilty of being a

felon in possession. In a footnote in the stipulation, he acknowledged that

current law would allow his sentence to be enhanced due to prior felonies,

but he argued that this law denied him due process because the facts relevant

to the enhancement needed to be in the indictment and then proven beyond

a reasonable doubt.

In February 2021, Kerstetter pled guilty. His counsel challenged some

of the presentence report’s recommendations. The parties dispute here

whether he sufficiently presented his due process argument in district court

by referring to it in a footnote in the just-mentioned stipulation, a dispute that

affects the standard of review. We will discuss that later.

The district court imposed a sentence of 190 months of imprisonment.

This sentence reflected the court’s application of the sentencing

enhancement under the Armed Career Criminal Act (“ACCA”), which

applies when a Section 922(g) offender has three prior convictions for

“violent felon[ies]” or “serious drug offense[s]” that were “committed on

occasions different from one another.” 18 U.S.C. § 924(e)(1).

Kerstetter timely appealed.

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DISCUSSION

Each of Kerstetter’s arguments challenges the district court’s

decision to sentence him as an armed career criminal under Section 924(e).

The district court had to find that Kerstetter had the proper number of prior

convictions for the proper category of crimes and find that they were

committed separately from each other. § 924(e).

Kerstetter does not dispute the existence of the following convictions,

all of which were identified in his presentence report: (1) 1993 guilty-plea

conviction for unlawful delivery of less than 28 grams of cocaine; (2) June

2008 guilty-plea conviction for burglary of a building; (3) August 2008 guilty-

plea conviction for burglary of a building; and (4) 2013 guilty-plea conviction

for delivery of less than one gram of methamphetamine.

This court reviews a preserved legal challenge to an ACCA-enhanced

sentence de novo. United States v. White, 465 F.3d 250, 254 (5th Cir. 2006).

However, unpreserved challenges to the application of the ACCA are

reviewed only for plain error. United States v. Davis, 487 F.3d 282, 284 (5th

Cir. 2007).

1. Need for prior offenses to be charged in indictment and proven to jury

Kerstetter argues that the ACCA enhancement violated his

constitutional rights because the facts establishing that he committed his

previous qualifying offenses on different occasions were not charged in the

indictment nor were they admitted by him or proved to a jury. We have

mentioned already that the Government argues that this issue should be

reviewed only for plain error, as Kerstetter presented the issue in district

court only by discussing it in a footnote in his factual resume. We need not

address the sufficiency of that presentation, as this court has recently and

definitively resolved the issue being raised.

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The argument that the indictment must allege, and evidence at trial

must prove, the facts of the commission of qualifying offenses on different

occasions has long been rejected by this court. See Davis, 487 F.3d at 287–

88; see also White, 465 F.3d at 254. What is new, according to Kerstetter, was

the Supreme Court’s decision in Wooden v. United States, 142 S. Ct. 1063

(2022). There, the Court specifically declined to address whether “a jury,

rather than a judge, [must] resolve whether prior crimes occurred on a single

occasion.” Id. at 1068 n.3.

To end the argument for now in this court, a recent decision held that

Wooden is “not directly on point” to this issue and does not “alter the binding

nature” of Davis and White. United States v. Valencia, 66 F.4th 1032, 1033

(5th Cir. 2023) (quoting United States v. Traxler, 764 F.3d 486, 489 (5th Cir.

2014)). Our prior caselaw continues in full force, and we reject Kerstetter’s

argument.

2. Need for prior convictions to be violent felonies

In his other two issues, Kerstetter argues that the district court erred

in applying the ACCA enhancement because his prior convictions were not

violent felonies or serious drug offenses for purposes of Section 924(e). We

review these issues de novo. See United States v. Prentice, 956 F.3d 295, 298

(5th Cir. 2020).

Two of Kerstetter’s prior convictions were for the Texas offense of

burglary of a building. It has been settled that convictions for Texas burglary

qualify as violent felonies under the ACCA. Id. at 298; United States v.

Herrold, 941 F.3d 173, 182 (5th Cir. 2019) (en banc). The test we have applied

is that a defendant needs to show “a realistic probability, not a theoretical

possibility, that the State would apply its statute to conduct that falls outside

the generic definition of the crime.” Herrold, 941 F.3d at 179 (quoting

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

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Yet again, though, Kerstetter argues that a recent Supreme Court

decision has abrogated our existing law. See United States v. Taylor, 142 S.

Ct. 2015 (2022). Yet again, another precedential opinion of this court has

applied our prior caselaw after the relevant Supreme Court decision was

issued. See Ponce v. Garland, 70 F.4th 296 (5th Cir. 2023).

It is true that the Ponce court did not discuss Taylor. That makes sense

because in Taylor, the Court compared two federal statutes and analyzed

whether the elements of one aligned with the elements of the other. Taylor,

142 S. Ct. at 2018–19. The Court distinguished Duenas-Alvarez, first by

saying that the federalism concerns involved when comparing state offenses

with federal sentencing enhancements made it reasonable “to consult how a

state court would interpret its own State’s law.” Id. at 2025. “Second, in

Duenas-Alvarez the elements of the relevant state and federal offenses clearly

overlapped and the only question the Court faced was whether state courts

also ‘appl[ied] the statute in [a] special (nongeneric) manner.’” Id. (quoting

Duenas-Alvarez, 549 U.S. at 193) (emphasis omitted). The Court closed with

stating that “nothing in Duenas-Alvarez suggests otherwise,” i.e., suggests

that an opinion discussing how to compare state and federal statutes affects

how to compare two federal statutes. Id. We reverse the point being made

and hold that nothing in Taylor affects how to compare a state statute of

conviction with a federal enhancement.

We turn now to Kerstetter’s two prior convictions for delivery of a

controlled substance under Texas Health and Safety Code § 481.112(a).

Though we have long held that a Texas conviction for delivery of a controlled

substance is a serious drug offense for purposes of an ACCA enhancement,

United States v. Cain, 877 F.3d 562, 562–63 (5th Cir. 2017); United States v.

Vickers, 540 F.3d 356, 366 (5th Cir. 2008), Kerstetter nevertheless argues

that, in two respects, Section 481.112(a) sweeps too broadly to be a serious

drug offense as defined at 18 U.S.C. § 924(e)(2)(A)(ii).

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First, Kerstetter contends that Section 481.112(a) is overbroad

because the delivery of a controlled substance includes an offer to sell,

meaning a person can be convicted for a fraudulent offer to sell. He maintains

that the Supreme Court in Shular v. United States, 140 S. Ct. 779 (2020),

recently interpreted the reach of Section 924(e)(2)(A)(ii) much more

narrowly than this court did in Vickers. However, in United States v. Clark,

49 F.4th 889, 893 (5th Cir. 2022), we rejected the argument Kerstetter makes

here.

Second, Kerstetter maintains that Section 481.112(a) is overbroad

because the list of substances it covers includes at least one that is not covered

by the Controlled Substances Act. See TEX. HEALTH & SAFETY CODE

§ 481.102. We have recognized in the immigration context that Section

481.102 sweeps more broadly than its federal counterpart by defining the

term cocaine to include the position isomers of cocaine. Alexis v. Barr, 960

F.3d 722, 726–27 (5th Cir. 2020). Even so, to avoid the ACCA enhancement,

Kerstetter had to show “a realistic probability . . . that the State would apply

its statute to conduct that falls outside the generic definition of a crime.”

Duenas-Alvarez, 549 U.S. at 193; Herrold, 941 F.3d at 179. Kerstetter did not

meet that test because he did not identify any actual cases where Texas

brought charges against someone under Section 481.112(a) for delivery of

position isomers of cocaine.

AFFIRMED.

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