The opinion
Case: 23-50040 Document: 77-1 Page: 1 Date Filed: 03/15/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50040
FILED
March 15, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Richard Schorovsky,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-173-1
______________________________
Before Elrod, Willett, and Duncan, Circuit Judges.
Don R. Willett, Circuit Judge:
In 2022, Richard Schorovsky pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He had
previously been convicted in Texas of felony robbery, aggravated robbery,
and burglary of a habitation. The district court found that these prior
convictions were “violent felon[ies] . . . committed on occasions different
from one another” and thus qualified Schorovsky for sentence enhancement
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under the Armed Career Criminal Act (ACCA). 1 The district court
sentenced Schorovsky to the ACCA’s mandatory minimum of 15 years of
imprisonment and five years of supervised release. 2 Schorovsky appealed,
raising four challenges to his enhanced sentence and one challenge to his
guilty plea. We AFFIRM.
I
Schorovsky first argues that no Shepard-approved documents proved
that his robbery and aggravated robbery offenses were “committed on
occasions different from one another,” as required by § 924(e). To
determine whether offenses were “committed on occasions different from
one another,” a court may examine only Shepard-approved material: “the
statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which
the defendant assented.” 3 “Offenses committed close in time, in an
uninterrupted course of conduct, will often count as part of one occasion; not
so for offenses separated by substantial gaps in time or significant intervening
events.” 4 Offenses committed “a day or more apart” are rightly treated “as
occurring on separate occasions.” 5
Schorovsky did not argue below that the district court relied on non-
Shepard-approved documents to determine that his offenses were committed
on different occasions—rather, he objected only that the ACCA should not
apply because his prior convictions constituted a single criminal episode.
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1
See 18 U.S.C. § 924(e)(1).
2
Id.
3
Shepard v. United States, 544 U.S. 13, 16 (2005).
4
Wooden v. United States, 595 U.S. 360, 369 (2022).
5
Id. at 370.
2
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Accordingly, we review the former argument for plain error and the latter de
novo. 6 Under plain-error review, Schorovsky must establish (1) an error
(2) that is “clear or obvious” and that (3) affected his “substantial rights.” 7
If he makes this showing, then we have discretion to remedy the error—
discretion we should exercise only if the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” 8
Even if the district court erred in relying on the presentence
investigation report (PSR), 9 the error did not affect Schorovsky’s substantial
rights because “Shepard-approved documents are conclusive as to whether
the predicate ACCA offenses occurred on separate occasions.” 10 The
Government provided the district court with Shepard-approved documents:
the indictments and judgments for Schorovsky’s prior convictions.
Schorovsky did not object.
Schorovsky now argues that (1) his prior indictments cannot be used
to prove the dates of his prior offense conduct because Texas law does not
require an indictment to allege a specific date, and (2) the dates listed in the
judgments are not factual findings for purposes of the ACCA. 11 However,
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6
See United States v. Alkheqani, 78 F.4th 707, 723 (5th Cir. 2023).
7
See Puckett v. United States, 556 U.S. 129, 135 (2009).
8
Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)).
9
See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (“[A] district
court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for
enhancement purposes.”)
10
See Alkheqani, 78 F.4th at 726 (quoting United States v. Wright, No. 21-60877,
2022 WL 3369131, at *1 (5th Cir. Aug. 16, 2022) (per curiam)).
11
Schorovsky cites Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997), and
United States v. Solano-Hernandez, 761 F. App’x 276 (5th Cir. 2019). See Sledge, 953 S.W.2d
at 255 (stating that “the State need not allege a specific date in an indictment”); Solano-
Hernandez, 761 F. App’x at 281–82 (holding that the district court clearly and obviously
3
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our precedent makes clear that judgments and indictments are Shepard-
approved documents that can be used to determine that Texas offenses
occurred on different dates and thus on separate occasions. 12 Even if the
cases Schorovsky cites cast doubt on the use of indictments and judgments
under some circumstances, as Schorovsky argues, it is not “clear or obvious”
that the district court erred in relying on them here.
Because Schorovsky’s prior indictments and judgments indicate that
the offenses were committed two days apart, 13 the district court properly
treated them as occurring on different occasions. 14 Accordingly, the district
court did not plainly err under Shepard and properly treated Schorovsky’s
prior convictions as ACCA predicates.
II
Schorovsky next argues that the district court violated Apprendi v. New
Jersey by finding that his prior convictions occurred on different occasions
_____________________
erred in relying on the “Statement of Reasons” in the judgment “to narrow the statute of
conviction”); see also United States v. Fuller, 453 F.3d 274, 279–80 (5th Cir. 2006) (holding
that the indictments could not establish that the burglaries occurred on different occasions
because the indictments need not identify whether the defendant aided and abetted or
committed the robbery himself), abrogated on other grounds by Wooden, 595 U.S. 360.
12
See, e.g., Alkheqani, 78 F.4th at 727 (stating approvingly that the indictments
listed the dates of the offenses); United States v. Bookman, 263 F. App’x 398, 399–400 (5th
Cir. 2008) (per curiam) (stating that the indictments and judgments “show that the
burglaries were committed on different dates”); see also United States v. White, 465 F.3d
250, 254 (5th Cir. 2006) (noting that the indictments and judgments were among the
“ample bases [in that case] to determine that White’s drug offenses were separate”);
United States v. Martin, 447 F. App’x 546, 548 (5th Cir. 2011) (per curiam) (same).
13
His aggravated robbery occurred on January 26, 2012, and his robbery occurred
on January 28, 2012.
14
See Wooden, 595 U.S. at 370.
4
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for the ACCA enhancement. 15 He argues that the jury should have found
that fact beyond a reasonable doubt. Because Schorovsky did not raise an
Apprendi objection below, we review for plain error. 16
Supreme Court and circuit precedent squarely foreclose Schorovsky’s
argument. In Apprendi, the Supreme Court said, “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” 17 Consistent with Apprendi, we have held that
“‘because [Section] 924(e)(1) does not create a separate offense but is merely
a sentence enhancement provision,’ neither the statute nor the Constitution
requires a jury finding on the existence of the three previous felony
convictions required for the enhancement.” 18 The Supreme Court’s 2002
decision in Wooden v. United States does not demand a contrary result. 19
Accordingly, the district court did not err under Apprendi by finding that
Schorovsky’s prior convictions were committed on different occasions.
III
Schorovsky next argues that his burglary-of-a-habitation conviction
cannot be an ACCA predicate because the relevant statute, Texas Penal
Code § 30.02(a), covers “buildings” that are not used for habitation and is
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15
See 530 U.S. 466, 490 (2000).
16
See United States v. Davis, 487 F.3d 282, 287–88 (5th Cir. 2007).
17
530 U.S. at 490 (emphasis added).
18
See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002) (alteration in
original) (quoting United States v. Affleck, 861 F.2d 97, 98–99 (5th Cir. 1988)); see also
White, 465 F.3d at 254 (rejecting Apprendi argument); Davis, 487 F.3d at 287–88 (same);
United States v. Hageon, 418 F. App’x 295, 299 (5th Cir. 2011) (same).
19
See United States v. Valencia, 66 F.4th 1032, 1032–33 (5th Cir. 2023) (per curiam)
(discussing Wooden, 595 U.S. 360).
5
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thus broader than “generic” burglary in the ACCA. Because Schorovsky
objected below, our review is de novo. 20
Binding circuit precedent forecloses this argument. Burglary is an
enumerated “violent felony” under the ACCA. 21 We previously held en
banc that Penal Code § 30.02(a) fits within the generic definition of burglary
and thus qualifies as an ACCA violent felony. 22 Since that decision in
Herrold II, we have reiterated that Ҥ 30.02(a) constitutes generic burglary
in its entirety, and thus any § 30.02(a) conviction qualifies as a predicate
under the ACCA.” 23 Accordingly, the district court properly classified
Schorovsky’s burglary-of-a-habitation conviction as an ACCA predicate.
IV
Schorovsky also argues that the district court violated his due process
right to notice by finding that his burglary conviction was an ACCA violent
felony. He explains that “burglary of a dwelling” is no longer considered a
violent crime under the Sentencing Guidelines’ career offender
enhancement and that this disparity with the ACCA makes him wonder
“whether or not burglary should now be considered a violent crime.”
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20
See Fuller, 453 F.3d at 278; Alkheqani, 78 F.4th at 723.
21
18 U.S.C. § 924(e)(2)(B)(ii).
22
United States v. Herrold (Herrold II), 941 F.3d 173, 182 (5th Cir. 2019) (en banc).
23
United States v. Clark, 49 F.4th 889, 892 (5th Cir. 2022) (per curiam) (emphasis
added); see also United States v. Wallace, 964 F.3d 386, 389 (5th Cir. 2020) (“[W]e disagree
with Wallace’s assertion that our holding in Herrold II is confined to Herrold’s failure to
provide supportive Texas cases.”); United States v. Walton, 804 F. App’x 281, 282 (5th
Cir. 2020) (per curiam) (“[C]hallenges to the Texas burglary statute as being nongeneric
for purposes of the ACCA enhancement are foreclosed.”).
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Because Schorovsky raises this argument for the first time on appeal, we
review for plain error. 24
This argument likewise fails. As the Government notes, the ACCA
“unambiguously gives the public notice that a prior burglary conviction may
be used for the purpose [of] enhancing a criminal actor’s penalty range to
ACCA’s 15-year mandatory minimum sentence, even though the § 4B1.2
definition of a crime of violence excludes that offense.” In Herrold II, we held
en banc that burglary of a habitation categorically fits within the definition of
burglary under the ACCA. 25 Moreover, the Guidelines themselves “do not
implicate” Schorovsky’s due process right to notice. 26 “All of the notice
required is provided by the applicable statutory range, which establishes the
permissible bounds of the court’s sentencing discretion.” 27 Schorovsky
points to no case law—because there is none—to show that the Guidelines’
definition of “crime of violence” overrides the ACCA’s definition of
“violent felony” or that the ACCA is unconstitutionally vague. “We
ordinarily do not find plain error when we ‘have not previously addressed’
an issue.” 28 Accordingly, the district court did not, plainly or otherwise,
violate Schorovsky’s due process rights by characterizing burglary as a
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24
See Puckett, 556 U.S. at 135.
25
See Herrold II, 941 F.3d at 176–77.
26
See Beckles v. United States, 580 U.S. 256, 265 (2017); see also United States v.
Osorio, 734 F. App’x 922, 924 (5th Cir. 2018) (per curiam) (same).
27
Beckles, 580 U.S. at 266.
28
See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting United
States v. Lomas, 304 F. App’x 300, 301 (5th Cir. 2008) (per curiam)).
7
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violent felony and sentencing him to the ACCA’s 15-year mandatory
minimum.
V
Finally, Schorovsky argues that his guilty plea was not knowing and
voluntary because the magistrate judge advised him during the plea colloquy
that his maximum sentence was 15 years (when the ACCA’s mandatory
maximum is life in prison), that his minimum sentence was 0 years (when the
ACCA’s mandatory minimum is 15 years), and that the maximum term of
supervised release was 3 years (when it is 5 years).
Schorovsky says that he preserved this Rule 11 claim by making it
“abundantly clear [before the district court] that he felt like he’d been
blindsided by being characterized as an armed career criminal.” 29 However,
his objection was not “sufficiently specific to alert the district court to the
nature of the alleged [Rule 11] error and to provide an opportunity for
correction.” 30 Even liberally construing his objection, he did not object to his
plea or to the district court’s alleged miscommunication about the proper
sentencing range—he objected only to “getting enhanced on something
that’s not even nowhere in the sentencing guideline or the ACC Act.”
Accordingly, we review for plain error. 31
The district court undeniably erred when it advised Schorovsky of the
incorrect minimum and maximum terms of imprisonment that could result
from his plea. 32 In United States v. Rodriquez, the Supreme Court observed,
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29
See Fed R. Crim. P. 11(c)(1)(H)–(I).
30
See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
31
See United States v. Vonn, 535 U.S. 55, 58–59 (2002).
32
See Fed R. Crim. P. 11(b)(1)(H)–(I).
8
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“If the judge told the defendant that the maximum possible sentence was 10
years and then imposed a sentence of 15 years based on ACCA, the
defendant would have been sorely misled and would have a ground for
moving to withdraw the plea.” 33 Accordingly, “we have no difficulty
concluding that the error was ‘clear or obvious.’” 34
Even so, the district court’s error did not affect Schorovsky’s
substantial rights and thus fails to satisfy the third prong of plain-error
review. 35 Schorovsky fails to meet his burden of showing “a reasonable
probability that, but for the error, he would not have entered the plea.” 36
“Though the district court failed to inform [Schorovsky] of the punishment
range for the charged crime, the presentence report specifically detailed the
punishment range” applicable in light of the enhancement. 37 At sentencing,
Schorovsky confirmed that he had reviewed the PSR. Despite learning of the
ACCA statutory sentencing range in his PSR, Schorovsky did not object or
seek to withdraw his plea. 38 Under these circumstances, Schorovsky was
“aware of and understood” that his ACCA enhancement carried a statutory
_____________________
33
553 U.S. 377, 384 (2008).
34
See United States v. Wallace, 551 F. App’x 193, 196 (5th Cir. 2014) (per curiam)
(quoting Puckett, 556 U.S. at 135).
35
See id. (concluding that the Rule 11 error was “clear or obvious” under Rodriquez
before proceeding to the “substantial rights” plain-error prong).
36
See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
37
See United States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999) (per curiam)
(discussing similar facts and holding that the Rule 11 error did not affect substantial rights).
38
See United States v. Herndon, 7 F.3d 55, 57 (5th Cir. 1993) (per curiam)
(considering whether the PSR and sentencing hearing provided “any basis upon which
[the court] could reasonably conclude that the defendant was ‘aware of and understood’
that there was a [certain] minimum statutory sentence”).
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minimum sentence of 15 years, a statutory maximum of life, and a maximum
term of supervised release of five years. 39
And, critically, Schorovsky does not allege, let alone prove, that he
would not have pleaded guilty had he been informed during his plea colloquy
of the proper statutory sentencing range. 40 He merely “requests that he be
returned to the pre-plea status so he can decide whether or not to take his
case to trial.” 41 Thus, the district court did not plainly err.
* * *
Accordingly, we AFFIRM Schorovsky’s guilty plea and sentence.
_____________________
39
See id.
40
See Dominguez Benitez, 542 U.S. at 83.
41
See Vasquez-Bernal, 197 F.3d at 171.
10