Petition for Writ of Certiorari — Eddie Charles Webb, Petitioner v. United States

r

No.

In the

Supreme Court of the United States

___________

EDDIE CHARLES WEBB,

PETITIONER,

V.

UNITED STATES OF AMERICA,

RESPONDENT,

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

J. MATTHEW WRIGHT

* COUNSEL OF RECORD

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

500 SOUTH TAYLOR STREET, SUITE 110

AMARILLO, TEXAS 79101

(806) 324-2370

MATTHEW_WRIGHT@FD.ORG

QUESTIONS PRESENTED

To decide whether a prior burglary conviction qualifies as a

predicate violent felony under the Armed Career Criminal Act, 18

U.S.C. § 924(e), “courts compare the elements of the crime of

conviction with the elements of the ‘generic’ version of the listed

offense—i.e., the offense as commonly understood.” Mathis v.

United States, 136 S. Ct. 2243, 2247 (2016). “[T]he prior crime

qualifies as an ACCA predicate if, but only if, its elements are the

same as, or narrower than, those of the generic offense.” Id. This

categorical approach” “demand[s] . . . certainty when identifying

a generic offense.” Shepard v. United States, 544 U.S. 13, 21

(2005).

1. When applying the categorical approach, federal courts are

“bound by” a state supreme court’s “interpretation of state law,

including its determination of the elements” of the prior crime.

Johnson v. United States, 559 U.S. 133, 138 (2010); accord James

v. United States, 550 U.S. 192, 205–206 (2007). Does “Taylor’s

demand for certainty” apply to federal courts’ application and

interpretation of state-court decisional law?

2. Where a state statute explicitly defines “burglary” in a way

that does not require proof of an intent to commit a crime, and

thus lacks an element necessary to satisfy Taylor’s generic definition of “burglary,” 18 U.S.C. 924(e)(2)(B)(ii), is that facial

overbreadth enough to demonstrate that the crime is non-generic,

or must a federal defendant also prove that the state has

convicted someone who did not, in fact, harbor specific intent?

i

PARTIES TO THE PROCEEDING

The parties to the proceeding are named in the caption.

DIRECTLY RELATED PROCEEDINGS

1.

United States v. Eddie Charles Webb, No. 5:01-CR-74 (N.D. Tex.)

2.

Eddie Charles Webb v. United States, No. 5:16-CV-94 (N.D. Tex.)

3.

United States v. Eddie Charles Webb, No. 17-11211 (5th Cir.)

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

DIRECTLY RELATED PROCEEDINGS ..................................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISIONS INVOLVED .................................................................... 1

STATEMENT ................................................................................................................. 3

REASONS TO GRANT THE PETITION...................................................................... 4

I. The Court should grant the petition because the circuit courts have reached

irreconcilable results regarding identical burglary statutes. ................................. 4

II. The divergent outcomes arise from broader disagreements about how to

apply the categorical approach. ............................................................................... 7

A. The circuits are divided over how to apply this Court’s decision in

Gonzales v. Duenas-Alvarez. ............................................................................... 7

B. As an alternative rationale for holding that Texas burglary is

categorically generic, the Fifth Circuit has embraced a strained

construction of Texas law that does not satisfy Taylor’s demand for

certainty. ........................................................................................................... 16

CONCLUSION............................................................................................................. 21

iii

PETITION APPENDIX

Fifth Circuit Opinion ................................................................................................. 1a

Fifth Circuit Order Granting Certificate of Appealability ....................................... 3a

District Court Order Denying and Dismissing Motion Under 28 U.S.C.

§ 2255 ............................................................................................................... 5a

District Court Judgment ........................................................................................... 8a

iv

TABLE OF AUTHORITIES

Cases

Alacan v. State,

03-14-00410-CR, 2016 WL 286215 (Tex. App.—Austin Jan. 21,

2016, no pet.) .......................................................................................................... 18

Battles v. State,

13-12-00273-CR, 2013 WL 5520060 (Tex. App. Oct. 3, 2013) ......................... 18, 19

Betansos v. Barr,

928 F.3d 1133 (9th Cir. 2019) ................................................................................ 14

Brooks v. State,

08-15-00208-CR, 2017 WL 6350260 (Tex. App.—El Paso Dec. 13,

2017, pet. ref’d) ....................................................................................................... 19

Chavez v. State,

08-04-00319-CR, 2006 WL 2516464 (Tex. App.—El Paso Aug. 31,

2006, no pet.) .......................................................................................................... 20

Chazen v. Marske,

938 F.3d 851 (7th Cir. 2019) .............................................................................. 4, 19

Crawford v. State,

05-13-01494-CR, 2015 WL 1243408 (Tex. App.—Dallas Mar. 16,

2015, no pet.) .......................................................................................................... 19

Daniel v. State,

07-17-00216-CR, 2018 WL 6581507 (Tex. App.—Amarillo Dec. 13,

2018, no pet.) .......................................................................................................... 18

DeVaughn v. State,

749 S.W.2d 62 (Tex. Crim. App. 1988)............................................................... 6, 16

Duran v. State,

492 S.W.3d 741 (Tex. Crim. App. 2016)................................................................. 18

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) .................................................................................................... 20

Gomez-Perez v. Lynch,

829 F.3d 323 (5th Cir. 2016) .................................................................................. 15

Gonzales v. Duenas-Alvarez,

549 U.S. 183 (2007) .................................................................................. 8, 9, 10, 13

v

Guzman v. State,

2-05-096-CR, 2006 WL 743431 (Tex. App.—Fort Worth Mar. 23,

2006, no pet.) .......................................................................................................... 19

Herrold v. United States,

No. 19-7731 ............................................................................................................. 20

Hylton v. Sessions,

897 F.3d 57 (2d Cir. 2018) .......................................................................... 11, 13, 15

Johnson v. State,

14-10-00931-CR, 2011 WL 2791251 (Tex. App.—Houston [14th

Dist.] July 14, 2011, no pet.) .................................................................................. 19

Johnson v. United States,

576 U.S. 591, 135 S. Ct. 2551 (2015) ....................................................................... 4

Leaks v. State,

13-03-613-CR, 2005 WL 704409 (Tex. App.—Corpus Christi Mar.

24, 2005, pet. ref’d) ................................................................................................. 20

Lomax v. State,

233 S.W.3d 302 (Tex. Crim. App. 2007)........................................................... 17, 19

Lopez-Aguilar v. Barr,

948 F.3d 1143 (9th Cir. 2020) ................................................................................ 11

Matini v. State,

05-03-00686-CR, 2004 WL 1089197 (Tex. App.—Dallas May 17,

2004, no pet.) .......................................................................................................... 19

Mathis v. United States,

136 S. Ct. 2243 (2016) ................................................................................ 12, 14, 21

Mowlana v. Lynch,

803 F.3d 923 (8th Cir. 2015) .................................................................................. 10

Quarles v. United States,

139 S. Ct. 1872 (2019) .............................................................................................. 6

Ramos v. Att’y Gen.,

709 F.3d 1066 (11th Cir. 2013) .............................................................................. 12

Salmoran v. Att’y Gen.,

909 F.3d 73 (3d Cir. 2018) ...................................................................................... 13

vi

Scroggs v. State,

396 S.W.3d 1 (Tex. App.—Amarillo 2010, pet. ref’d, untimely filed) ................... 18

Singh v. Att’y Gen.,

839 F.3d 273 (3d Cir. 2016) .............................................................................. 12, 13

Swaby v. Yates,

847 F.3d 62 (1st Cir. 2017) ............................................................................... 11, 13

Torrez v. State,

12-05-00226-CR, 2006 WL 2005525 (Tex. App.—Tyler July 19,

2006, no pet.) .......................................................................................................... 19

United States v. Castillo-Rivera,

853 F.3d 218 (5th Cir. 2017) (en banc) .............................................................. 7, 13

United States v. Grisel,

488 F.3d 844 (9th Cir. 2007) (en banc) .................................................................. 11

United States v. Herrold,

941 F.3d 173 (5th Cir. 2019) (en banc) ............................................................ 5, 7, 9

United States v. Stitt,

139 S. Ct. 399 (2018) .............................................................................................. 11

United States v. Titties,

852 F.3d 1257 (10th Cir. 2017) ........................................................................ 12, 13

United States v. Wallace,

964 F.3d 386 (5th Cir. 2020) ................................................................................ 5, 7

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) ...........................................................................passim

Wingfield v. State,

282 S.W.3d 102 (Tex. App.—Fort Worth 2009, pet. ref’d) .................................... 18

Statutes

8 U.S.C. § 1101(a)(43) .................................................................................................. 15

8 U.S.C. § 1101(a)(43)(G) ............................................................................................... 8

18 U.S.C. §§ 16, 521, 924(c)(3), and 3156.................................................................... 15

18 U.S.C. § 922(g)(1) ...................................................................................................... 3

vii

18 U.S.C. § 924(a)(2) ...................................................................................................... 3

Armed Career Criminal Act, 18 U.S.C. § 924(e) ..................................................passim

21 U.S.C. § 802 ............................................................................................................. 12

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 2255 ............................................................................................................. 4

34 U.S.C. § 20911 ......................................................................................................... 15

Minn. Stat. Ann. § 609.582 (eff. Aug. 1, 1988).............................................................. 6

Mont. Code § 45-6-204(1)(b) & (2)(a)(ii) (eff. Oct. 1, 2009) ........................................... 6

N.C. Gen. Stat. § 14-53 .................................................................................................. 5

Pub. L. 98-473, § 1803(2) (1984) .................................................................................... 5

Tenn. Code Ann. § 39-14-402(a)(3) (eff. July 1, 1995) .................................................. 6

Texas Penal Code § 19.02(b) ........................................................................................ 17

Texas Penal Code § 22.01(a)(1) ................................................................................... 15

Texas Penal Code § 22.04 ............................................................................................ 19

Texas Penal Code § 30.02(a) .................................................................................... 2, 17

Texas Penal Code § 30.02(a)(1) and (a)(2) .................................................................. 16

Texas Penal Code § 30.02(a)(3) ............................................................................passim

Other Authorities

4 William Blackstone, Commentaries on the Laws of England 227

(1769) ........................................................................................................................ 5

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Eddie Charles Webb asks this Court to issue a writ of certiorari to

the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s opinion in this case was not selected for publication. It can

be found at 818 F. App’x 376 and is reprinted in the Appendix to this Petition. The

district court’s opinion is also reprinted in the Appendix.

JURISDICTION

The Fifth Circuit issued its judgment on August 26, 2020. On March 19, 2020,

this Court extended the deadline to file petitions for certiorari in all cases to 150 days

from the judgment. This Court has jurisdiction to review the Fifth Circuit’s final

decision under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation and application of the Armed Career

Criminal Act, 18 U.S.C. § 924(e):

(e)

(1) In the case of a person who violates section 922(g) of this

title and has three previous convictions by any court referred to

in section 922(g)(1) of this title for a violent felony or a serious

drug offense, or both, committed on occasions different from one

another, such person shall be fined under this title and

imprisoned not less than fifteen years, and, notwithstanding any

other provision of law, the court shall not suspend the sentence

of, or grant a probationary sentence to, such person with respect

to the conviction under section 922(g).

(2) As used in this subsection—

(A) the term “serious drug offense” means—

1

(i) an offense under the Controlled Substances

Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and

Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for

which a maximum term of imprisonment of ten years or more is

prescribed by law; or

(ii) an offense under State law, involving

manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. 802)), for

which a maximum term of imprisonment of ten years or more is

prescribed by law;

(B) the term “violent felony” means any crime

punishable by imprisonment for a term exceeding one year, or any

act of juvenile delinquency involving the use or carrying of a

firearm, knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, 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, involves use

of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another; and

(C) the term “conviction” includes a finding that a

person has committed an act of juvenile delinquency involving a

violent felony.

This case also involves Texas Penal Code § 30.02(a), which defines “burglary” as

follows:

(a) A person commits an offense if, without the effective consent

of the owner, the person:

(1) enters a habitation, or a building (or any portion of a

building) not then open to the public, with intent to commit a

felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or

an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to

commit a felony, theft, or an assault.

2

STATEMENT

Petitioner Eddie Charles Webb—who had three prior convictions for Texas

burglary and one prior ACCA-enhanced federal firearm conviction—suffered a

mental breakdown in 2001 and attacked his estranged ex-wife, her children, and her

mother. (Presentence Investigation Report, Sealed 5th Cir. R. 157–159). This episode

was the culmination of a very difficult life consisting of “one crisis after another.” (5th

Cir. R. 162). His mother committed suicide when he was only three years old; his

father abandoned him when he was six; and he spent the rest of his childhood

bouncing between abusive foster homes and juvenile confinement facilities. Ibid. In

1979, 1980, and 1984, he committed the three Texas burglaries that would later gave

rise to the disputed ACCA enhancement. He also suffered a prior ACCA-enhanced

conviction in 1987. He was on parole from that sentence when he committed the

instant offense.

Because he had a firearm during the attack on his family, federal authorities

again charged him with violating 18 U.S.C. § 922(g)(1). He pleaded guilty. App., infra,

1a. That crime normally carries a maximum possible sentence of ten years in prison.

18 U.S.C. § 924(a)(2). The ACCA raised the stakes dramatically, demanding a

minimum sentence of 15 years in prison and authorizing imprisonment for life. See

18 U.S.C. § 924(e)(1). The district court sentenced him to 327 months in prison. App.,

infra, 1a.

Mr. Webb did not challenge the application of the ACCA at sentencing, and he

did not appeal his conviction or sentence. At the time, the statutory definition of

“violent felony” included both the enumerated offense of generic “burglary” and the

3

residual clause, which covered any non-enumerated crime that “otherwise involves

conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.

§ 924(e)(2)(B)(ii).

This Court struck down the ACCA’s residual clause in Johnson v. United

States, 576 U.S. 591, 135 S. Ct. 2551 (2015). Mr. Webb then moved to vacate his

sentence under 28 U.S.C. § 2255, arguing that Texas burglary would no longer count

as a violent felony without that clause. Though the motion was filed within one year

of Johnson, the district court decided that Johnson did not “directly apply” and

dismissed his motion as untimely. App., infra, 6a. The court also concluded that Mr.

Webb could not prove that the district court had “relied on” the residual clause at

sentencing. App., infra, 6a.

The Fifth Circuit granted a certificate of appealability, but later held that

Texas burglary was generic, enumerated burglary. App., infra, 2a. The court

affirmed.

REASONS TO GRANT THE PETITION

I.

THE COURT SHOULD GRANT THE PETITION BECAUSE THE CIRCUIT COURTS

HAVE

REACHED

IRRECONCILABLE

RESULTS

REGARDING

IDENTICAL

BURGLARY STATUTES.

Given identical inputs—a state crime labeled “burglary” committed whenever

a trespasser commits some other crime inside a building, even where that crime does

not require proof of specific criminal intent—the Fifth and Seventh Circuits have

reached opposite conclusions. In the Seventh Circuit, the trespass-plus-crime theory

is not considered generic burglary. Van Cannon v. United States, 890 F.3d 656, 664

(7th Cir. 2018); accord Chazen v. Marske, 938 F.3d 851, 860 (7th Cir. 2019). In the

4

Fifth Circuit, the trespass-plus-crime offense defined in Texas Penal Code

§ 30.02(a)(3) is considered generic burglary. See United States v. Herrold, 941 F.3d

173, 182 (5th Cir. 2019) (en banc); accord United States v. Wallace, 964 F.3d 386, 388–

389 (5th Cir. 2020).

These two circuits do not necessarily disagree about the “generic” definition of

burglary. The element that has always distinguished burglary from mere trespass is

the intent to commit a crime inside the building. 4 William Blackstone, Commentaries

on the Laws of England 227 (1769) (“[I]t is clear, that [the] breaking and entry must

be with a felonious intent, otherwise it is only a trespass.”). When Congress originally

passed the ACCA, it included this specific-intent element within its definition of

“burglary.” Pub. L. 98-473, § 1803(2) (1984). Even after that statutory definition was

inadvertently deleted, this Court agreed that intent to commit another crime

remained an “element” of the “generic” definition of burglary. Taylor, 495 U.S. at 598.

Texas was the first (or possibly the second)1 jurisdiction to define a form of

“burglary” that did not require proof of specific intent to commit another felony inside

the premises. Texas’s pioneering theory “dispenses with the need to prove intent”

when the actor actually commits a predicate crime inside the building after an

In 1969, North Carolina created a form of reverse burglary, which prohibited

breaking out of a dwelling house after committing a crime therein. See 1969 N.C.

Laws, c. 543, § 2, codified at N.C. Gen. Stat. § 14-53 (“G.S. 14-53 is rewritten to read

as follows: ‘G.S. 14-53. Breaking out of dwelling house burglary. If any person

shall enter the dwelling house of another with intent to commit any felony or larceny

therein, or being in such dwelling house, shall commit any felony or larceny therein,

and shall, in either case, break out of such dwelling house in the nighttime, such

person shall be guilty of burglary.’”) (emphasis added).

1

5

unlawful entry. DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988)

(internal quotation omitted). Judge Sykes has helpfully dubbed this new theory

“trespass-plus-crime.” Van Cannon, 890 F.3d at 664. Four states have now expanded

their definition of “burglary” to include the trespass-plus-crime theory: Minnesota, see

Minn. Stat. Ann. § 609.582 (eff. Aug. 1, 1988); Montana, see Mont. Code § 45-6-204(1)(b) &

(2)(a)(ii) (eff. Oct. 1, 2009); Tennessee, see Tenn. Code Ann. § 39-14-402(a)(3) (eff. July 1,

1995); and Texas, see Tex. Penal Code § 30.02(a)(3) (eff. 1974). Three forms of Michigan

“home invasion” incorporate the trespass-plus-crime theory. See Mich. Comp. L.

§ 750.110a(2), (3), (4)(a).

In these states, prosecutors can convict a defendant for burglary by proving

that he committed a reckless, negligent, or strict liability crime while trespassing.

These burglary offenses are broader than generic burglary because they lack the

element of “intent” to commit another crime inside the building.

This Court explicitly reserved judgment on whether a crime that did not

require proof of specific intent could count as a “burglary” in Quarles v. United States,

139 S. Ct. 1872, 1880 n.2 (2019). After Quarles, the Fifth and Seventh Circuits have

reached opposite conclusions about trespass-plus-crime offense. The Seventh Circuit

has held that trespass-plus-crime burglaries are non-generic, becase a defendant can

commit a predicate crime without ever forming the specific intent to commit that

other crime: “[N]ot all crimes are intentional; some require only recklessness or

criminal negligence.” Van Cannon, 890 F.3d at 664.

6

The Fifth Circuit did not disagree about that, but nonetheless held that Texas

Penal Code § 30.02(a)(3)—a statute materially identical to the Minneosta crime

addressed in Van Cannon—was generic. Herrold, 941 F.3d 173 (5th Cir. 2019) (en

banc). The court gave two reasons for its holding that Texas burglary was nongeneric, notwithstanding the fact that it does not require proof of specific intent to

commit some other crime inside the premises. First, in the Fifth Circuit, it is not

enough to show that statutory language plainly embraces non-generic conduct; a

defendant must also prove that the state would prosecute someone under the nongeneric theory. See United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en

banc). Second, the court decided that Texas law “rejects” the notion that an offender

could be guilty of burglary by committing a reckless, negligent, or strict liability crime

inside the premises. Herrold, 941 F.3d at 179. The court later declared this to be a

“holding” of Herrold. See Wallace, 964 F.3d at 388–389.

There is no relevant statutory difference between the Minnesota crime in Van

Cannon and the Texas crime in Herrold. Any argument that Texas courts somehow

require proof of specific intent is rebutted by examining Texas law. The two circuits

are in direct conflict, and this Court should resolve that conflict.

II. THE

DIVERGENT OUTCOMES ARISE FROM BROADER DISAGREEMENTS

ABOUT HOW TO APPLY THE CATEGORICAL APPROACH.

A. The circuits are divided over how to apply this Court’s

decision in Gonzales v. Duenas-Alvarez.

Even though the categorical approach is supposed to compare elements to

elements, the Fifth Circuit has repeatedly held that a defendant cannot rely on the

text of a facially overbroad statute. The defendant must provide proof that the state

7

has prosecuted someone on non-generic facts. This demand to provide proof that a

statute is non-generic—even where the statute is broader on its face than the generic

definition—reflects the most extreme interpretation of Gonzales v. Duenas-Alvarez,

549 U.S. 183, 193 (2007).

Under Duenas-Alvarez, a defendant claiming a state statute is non-generic

may not rely on “application of legal imagination to a state statute’s language,” and

must sometimes prove that “state courts in fact did apply the statute in the special

(nongeneric) manner” before the statute will be regarded as non-generic. Id. at 193.

The circuits are divided about whether, after Duenas-Alvarez, a defendant must

advance proof in every case that the statute has been applied to non-generic facts, or

whether such evidence is unnecessary when the elements of the state crime are

plainly broader on their face than the generic crime’s.

In Duenas-Alvarez, the noncitizen attempted to prove that his prior conviction

for vehicle theft under California Vehicle Code § 1851(a) was broader than the generic

definition of a “theft offense,” and therefore was not an “aggravated felony” under 8

U.S.C. § 1101(a)(43)(G). 549 U.S. at 192–193. This immigration provision is governed

by the same categorical approach as the ACCA’s “violent felony” definition. Id. at 187.

The trouble was, the text of the California statute closely resembled the “theft”

offenses in most other jurisdictions. Id. at 187, 189. California explicitly defined the

offense to include accessories and accomplices, id. at 187, but that is also true of most

theft crimes. Id. at 190. Duenas-Alvarez argued that California courts had construed

aiding and abetting in too broad a fashion—because an accessory was held

8

responsible for what he intended “and for what ‘naturally and probably’ result[ed]

from his intended crime.” 549 U.S. at 190. He argued that this judicial expansion

transformed the otherwise generic-looking statute into a non-generic one.

This Court rejected Duenas-Alvarez’s argument, holding that California’s

conception of abettor liability did not “extend significantly beyond the concept as set

forth in the cases of other States.” Id. at 193. The Court went on to explain what

Duenas-Alvarez would need to show about California law to prove that a normallooking theft crime could become non-generic. That would require

more than the application of legal imagination to a state statute’s

language. It requires a realistic probability, not a theoretical possibility,

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

generic definition of a crime. To show that realistic probability, an

offender, of course, may show that the statute was so applied in his own

case. But he must at least point to his own case or other cases in which

the state courts in fact did apply the statute in the special (nongeneric)

manner for which he argues.

Id. at 193.

The circuits are divided over whether Duenas-Alvarez’s “realistic probability”

test requires proof in every case that someone has actually been convicted on nongeneric facts.

1. In both the Fifth and the Eighth Circuit, a defendant must point to actual

prosecutions to establish the “realistic probability,” even where the state statute is

plainly broader on its face than the relevant federal predicate definition. See Herrold,

941 F.3d at 178–179 (quoting Castillo-Rivera, 853 F.3d at 222–224) (“It is incumbent

on the defendant to point to ‘cases in which the state courts in fact did apply the

9

statute in the special (nongeneric) manner for which he argues.’ This is so ‘even where

the state statute may be plausibly interpreted as broader on its face.’”).

The Eighth Circuit has also held that the “analysis of realistic probability must

go beyond the text of the statute of conviction to inquire whether the government

actually prosecutes offenses” under the state statute where the underyling facts are

non-generic. Mowlana v. Lynch, 803 F.3d 923, 925 (8th Cir. 2015) (emphasis added).

Even though the federal crime at issue in Mowlana—unlawful use or transfer of

supplemental nutrition benefits—did not require a specific intent to deceive, the court

accepted the Attorney General’s assurance that the Government only prosecuted

defendants under that statute who in fact harbored an intent to deceive. Ibid. at 926–

92

Defendants in these two circuits must point to actual prosecutions to show that

facially non-generic crimes are prosecuted on non-generic facts. Defendants in the

majority of circuits do not.

2. The vast majority of circuits—the First, Second, Third, Seventh, Ninth,

Tenth, and Eleventh—confine the Duenas-Alvarez test to the circumstances that

spawned it: where the defendant proposes a novel and non-obvious construction for

generic-looking statutory language, he must point to a specific example proving that

the state statute reaches further than its text alone would suggest.

In Van Cannon, the Seventh Circuit followed the majority approach. The court

looked only to the elements of Minnesota burglary to determine it was non-generic.

There was no need to perform a deep dive into the underlying facts of Minnesota

10

burglary prosecutions to see how far the statute reached; the text of the “Minnesota

statute” alone was enough to show that it “covers a broader swath of conduct than

generic burglary.” Van Cannon, 890 F.3d at 658. And indeed, the Seventh Circuit

resisted any effort to judicially narrow the statute beyond its plain meaning—it

explicitly rejected the Government’s argument that commission of a crime implied

the formation of intent to do so: “Taylor’s elements-based approach does not

countenance imposing an enhanced sentenced based on implicit features in the crime

of conviction.” Ibid. The text, and the text alone, should be consulted to determine

whether the elements of the crime match the generic definition.

Most circuits agree with the Seventh. Where “a state statute explicitly defines

a crime more broadly than the generic definition,” then the crime is non-generic,

period. See United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),

abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399 (2018). Said

another way, the text of the statute alone can establish a “realistic probability” that

someone could be prosecuted for non-generic conduct, without resorting to “legal

imagination” or fanciful hypotheticals. See Lopez-Aguilar v. Barr, 948 F.3d 1143,

1147–1148 (9th Cir. 2020); accord Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017)

(Where the statutory language “clearly does apply more broadly than the federally

defined offense,” then the statute is non-generic.); Hylton, 897 F.3d at 63 (There is no

need to point to actual examples of prosecution “when the statutory language itself,

rather than the application of legal imagination to that language, creates the realistic

probability that a state would apply the statute to conduct beyond the generic

11

definition.”); Ramos v. Att’y Gen., 709 F.3d 1066, 1072 (11th Cir. 2013) (same); see

also Singh v. Att’y Gen., 839 F.3d 273, 286 n.10 (3d Cir. 2016) (The “realistic

probability” test comes into play only “the relevant elements” of the state crime and

the generic definition are “identical.”); United States v. Titties, 852 F.3d 1257, 1274

(10th Cir. 2017).

3. The minority approach is wrong and unfair. This Court’s categorical

approach cases have consistently focused on the elements of a state crime as defined

in statutory text—or what the jury was actually required to find “in order to convict

the defendant.” Taylor, 495 U.S. at 602. In conducting this analysis, federal courts

“the least of the acts criminalized” by the statute, not the least culpable acts ever

prosecuted. Moncrieffe, 569 U.S. at 190–191 (quoting Curtis Johnson, 559 U.S. at 137)

(emphasis added, internal alterations and quotation omitted).

“[A]pplication of ACCA involves, and involves only, comparing elements.”

Mathis, 136 S. Ct. at 2257. The categorical approach “does not care about” facts. Ibid.

The Massachusetts burglary statute in United States v. Shepard was non-generic

because (on its face) it applied to “boats and cars.” 544 U.S. 13, 17 (2005). The Iowa

burglary statute in Mathis was also non-generic because, on its face, it included “a

broader range of places” than generic burglary, including any “land, water, or air

vehicle.” 136 S. Ct. at 2250 (citation omitted). And the Kansas drug statute in Mellouli

did not “relat[e] to” controlled substances, as defined in 21 U.S.C. § 802, because the

Kansas crime applied to “at least nine substances not included in the federal lists.”

135 S. Ct. at 1984.

12

None of these cases involved an examination of “state enforcement practices,”

and this Court did not treat any of these state offenses as “narrower than it plainly

is.” Swaby, 847 F.3d at 66; Titties, 852 F.3d at 1274. This Court has “never conducted

a ‘realistic probability’ inquiry” where “the elements of the crime of conviction are not

the same as the elements of the generic federal offense.” Singh, 839 F.3d at 286 n.10.

The closest it has come is in Moncrieffe, 569 U.S. at 206, but that was in dicta

responding to the Government’s worry about an argument someone else might make

in a hypothetical case.

Other circuits have criticized the Fifth Circuit’s ruling in Castillo-Rivera. See

Hylton, 897 F.3d at 64; Salmoran v. Att’y Gen., 909 F.3d 73, 81 (3d Cir. 2018). Even

within the Fifth Circuit, the excessively strict interpretation of Duenas-Alvarez is

controversial. Castillo-Rivera, 853 F.3d at 239–241 (Dennis, J., dissenting) & 243–

244 (Higginson, J., concurring in part and dissenting in part) (“Although I have

applied the “realistic-probability” test announced in Duenas-Alvarez, I agree with

Judge Dennis’s dissenting opinion that this added showing is unnecessary when a

state statute is facially broader than its federal analog.”).

4. Time has proven that the elements-only approach is the correct one. And the

wisdom of that approach is clear. Consider a state crime that draws no distinction

between intentional, knowing, reckless, or negligent mental states. There is no reason

to require a federal defendant to prove that such a statute reaches negligent or

reckless conduct. The statute clearly says so. The only time extrinsic evidence of

13

prosecution is necessary would be if the defendant were attempting to show that the

state statute extended beyond its plain-text meaning.

But the minority approach is not only unnecessary; it is unwise. An approach

that involves judicially narrowing state statutes to assume they conform to federally

imposed boundaries is unfaithful to statutory text, casual with the proper division of

authority between State legislatures and federal courts, and inconsistent with the

rule of law. And the minority approach’s demand that statutory meaning must be

proven through empirical evidence departs from judicial function. It presumes that

the state crime triggers a severe penalty, and shifts the burden to the defendant (or

non-citizen) to prove otherwise.

Finally, the minority approach tilts the scale unfairly against criminal

defendants. The minority approach requires that a defendant prove that a statute

means what it says in order to disqualify it as an ACCA predicate. The “vast majority”

of state prosecutions, like “nearly all” criminal cases, “are resolved through plea

bargains,” which “are not published, nor are they readily accessible for review.”

Betansos v. Barr, 928 F.3d 1133, 1146–47 (9th Cir. 2019).

Even appellate decisions are unlikely to shed light on a burglar’s true mental

state. Where a Texas trespasser committed a reckless, negligent, or strict liability

crime inside a building, he would “have no incentive to contest” an allegation that his

predicate crime was intentional, rather than reckless, because that distinction “does

not matter under the law; to the contrary, he ‘may have good reason not to’—or even

be precluded from doing so by the court.” Mathis, 136 S. Ct. at 2253. For a crime like

14

assault—which can be committed by “intentionally, knowingly, or recklessly” causing

bodily injury, Texas Penal Code § 22.01(a)(1)—those three mental states are

“conceptually equivalent.” Gomez-Perez v. Lynch, 829 F.3d 323, 328 (5th Cir. 2016)

(quoting Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008)). In other

words, the Fifth Circuit demanded defendants like Mr. Webb prove facts about other

people’s cases which were legally irrelevant to their conviction or sentence.

6. The division is entrenched and acknowledged. See Hylton v. Sessions, 897

F.3d 57, 65 (2d Cir. 2018) (recognizing circuit courts’ “nearly unanimous

disagreement” with the Fifth Circuit position); see also Vazquez, 885 F.3d at 873–874

(acknowledging that “a statute’s plain meaning is dispositive” in “[o]ther circuits,”

but not in the Fifth Circuit). And the lower courts’ divergent views lead to divergent

outcomes, not just under the ACCA’s “violent felony” definition, but under every

federal statute incorporating Taylor’s “categorical approach”—the definitions of

“crime of violence” in 18 U.S.C. §§ 16, 521, 924(c)(3), and 3156; “misdemeanor crime

of domestic violence” in § 921(a)(33)(A); “serious violent felony” in § 3559(c)(2)(F); the

definitions of, and classifications for, “sex offenses” under SORNA, 34 U.S.C. § 20911;

the U.S. Sentencing Guidelines’ definitions of “crime of violence” and “controlled

substance offense,” U.S.S.G. § 4B1.2, and immigration law’s definitions of

“aggravated felony,” 8 U.S.C. § 1101(a)(43), and “crime of moral turpitude,”

§ 1227(a)(2)(A)(i).

15

B. As an alternative rationale for holding that Texas burglary is

categorically generic, the Fifth Circuit has embraced a

strained construction of Texas law that does not satisfy

Taylor’s demand for certainty.

The Texas Court of Criminal Appeals has never directly addressed whether a

trespasser who commits a reckless, negligent, or strict-liability crime is guilty of

burglary under § 30.02(a)(3). The court has held that it is permissible to convict

someone under Texas Penal Code § 30.02(a)(3) where the trespasser enters and then

“subsequently forms” specific intent “and commits or attempts a felony or theft.”

DeVaughn, 749 S.W.2d at 65 (quoting Seth S. Searcy, III and James R. Patterson,

Practice Commentary 144, Vernon’s Texas Codes Annotated (West 1974)); see also

Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (“Prosecution

under section 30.02(a)(3) is appropriate when the accused enters without effective

consent and, lacking intent to commit any crime upon his entry, subsequently forms

that intent and commits or attempts to commit a felony or theft.”).

DeVaughn recognized that Subsection (a)(3) “supplants the specific intent”

which would otherwise be required under Texas Penal Code § 30.02(a)(1) and (a)(2)

with the commission of a predicate offense. Id. Based on this language allowing

conviction where an offender forms specific intent after entry, the Fifth Circuit has

decided that Texas requires proof of specific intent before convicting under Subsection

(a)(3). But the plain statutory text and the Court of Criminal Appeals’s analysis of a

nearly identical statute together strongly suggest that the crime is broader than

generic burglary. Multiple appellate decisions from lower courts confirm that

formation of specific intent is not an element under § 30.02(a)(3).

16

1. In Texas, the crimes of murder and burglary share a similar structure:

Murder (Penal Code § 19.02(b)):

A person commits an offense if he:

(1) intentionally or knowingly causes

the death of an individual;

Burglary (Penal Code § 30.02(a)):

A person commits an offense if, without

the effective consent of the owner, the

person:

(1) enters a habitation, or a building (or

any portion of a building) not then open

to the public, with intent to commit a

felony, theft, or an assault; or

(2) remains concealed, with intent to

commit a felony, theft, or an assault,

in a building or habitation; or

(2) intends to cause serious bodily

injury and commits an act clearly

dangerous to human life that causes the

death of an individual; or

(3) commits or attempts to commit a (3) enters a building or habitation and

felony, other than voluntary or commits or attempts to commit a

involuntary manslaughter, and in the felony, theft, or an assault.

course of and in furtherance of the

commission or attempt . . . he commits

or attempts to commit an act clearly

dangerous to human life that causes the

death of an individual.

For murder, the Court of Criminal Appeals has held that this this structure

unambiguously eliminates the requirement to prove additional means rea beyond

that required for commission of the predicate offense: “It is significant and largely

dispositive that Section 19.02(b)(3) omits a culpable mental state while the other two

subsections in Section 19.02(b) expressly require a culpable mental state.” Lomax v.

State, 233 S.W.3d 302, 304 (Tex. Crim. App. 2007) (quoting Aguirre v. State, 22

S.W.3d 463, 472–473 (Tex. Crim. App. 1999)); id. at 307 n.14 (“It is difficult to imagine

how Section 19.02(b)(3), with its silence as to a culpable mental state, could be

construed to require a culpable mental state for an underlying felony for which the

Legislature has plainly dispensed with a culpable mental state.”). It stands to reason

that the court would interpret § 30.02(a)(3) the same way it interpreted

17

§ 19.02(b)(3)—if the predicate offense does not require specific intent, then there is

no need to prove that mental state.

2. The Texas intermediate courts have not spoken with one voice, but most

cases recognize that the commission of a negligent or reckless crime while trespassing

would satisfy the “elements” of Subsection (a)(3), even if the trespasser never formed

the intent to commit that crime. See, e.g., Duran v. State, 492 S.W.3d 741, 743 (Tex.

Crim. App. 2016) (entry plus commission of reckless aggravated assault); Battles v.

State, 13-12-00273-CR, 2013 WL 5520060, at *1 & n.1 (Tex. App. Oct. 3, 2013) (entry

plus negligently or recklessly injuring an elderly person);

When listing the elements of “burglary” under § 30.02(a)(3), Texas appellate

decisions routinely recognize that felonies with reckless or even negligent mens rea

are sufficient to give rise to liability under § 30.02(a)(3):



Daniel v. State, 07-17-00216-CR, 2018 WL 6581507, at *3 (Tex.

App.—Amarillo Dec. 13, 2018, no pet.): “All the State was

required to prove was that he entered the residence without

consent or permission and while inside, assaulted or attempted to

assault Phillips and Schwab.” Id. And “a person commits assault

when he intentionally, knowingly, or recklessly causes bodily

injury to another.” Id., 2018 WL 6581507, at *2 (emphasis added).



State v. Duran, 492 S.W.3d 741, 743 (Tex. Crim. App. 2016)

(recognizing reckless assault as a predicate for § 30.02(a)(3)

liability);



Scroggs v. State, 396 S.W.3d 1, 10 & n.3 (Tex. App.—Amarillo

2010, pet. ref’d, untimely filed) (same);



Wingfield v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth

2009, pet. ref’d) (same);



Alacan v. State, 03-14-00410-CR, 2016 WL 286215, at *3 (Tex.

App.—Austin Jan. 21, 2016, no pet.) (same);

18



Crawford v. State, 05-13-01494-CR, 2015 WL 1243408, at *2 (Tex.

App.—Dallas Mar. 16, 2015, no pet.) (same);



Johnson v. State, 14-10-00931-CR, 2011 WL 2791251, at *2 (Tex.

App.—Houston [14th Dist.] July 14, 2011, no pet.) (same);



Torrez v. State, 12-05-00226-CR, 2006 WL 2005525, at *2 (Tex.

App.—Tyler July 19, 2006, no pet.) (same);



Guzman v. State, 2-05-096-CR, 2006 WL 743431, at *2 (Tex.

App.—Fort Worth Mar. 23, 2006, no pet.) (same)



Brooks v. State, 08-15-00208-CR, 2017 WL 6350260, at *7 (Tex.

App.—El Paso Dec. 13, 2017, pet. ref’d) (listing robbery by

reckless causation of injury as a way to prove § 30.02(a)(3)).



Battles v. State, 13-12-00273-CR, 2013 WL 5520060, at *1 & n.1

(Tex. App.—Corpus Christi Oct. 3, 2013, pet. ref’d) (recognizing

that the predicate felony—injury to an elderly individual under

Texas Penal Code § 22.04—could be committed with recklessness

or with “criminal negligence.”

Particularly in light of the reasoning of Lomax, these cases eliminate the

inference that Texas requires proof of “formation of specific intent” to convict under

§ 30.02(a)(3). Under the reasoning of Van Cannon, 890 F.3d at 664, and Chazen v.

Marske, 938 F.3d 851, 860 (7th Cir. 2019), that makes § 30.02(a)(3) non-generic. But

the Fifth Circuit has held that it is generic. This Court should grant the petition to

resolve that conflict.

3. Against this wall of authority, there are three isolated and unpublished

Texas court decisions suggesting—in dicta—that the State must prove formation of

specific intent to convict under § 30.02(a)(3). Those decisions are: Matini v. State, 0503-00686-CR, 2004 WL 1089197, at *4 (Tex. App.—Dallas May 17, 2004, no pet.)

(“Under Section 30.02(a)(3) of the Penal Code, the State must prove, beyond a

reasonable doubt, that the accused, without effective consent, entered a building or

19

habitation lacking the intent to commit an assault, but subsequently formed that

intent and then committed or attempted to commit assault.”) (emphasis added);

Chavez v. State, 08-04-00319-CR, 2006 WL 2516464, at *3 (Tex. App.—El Paso Aug.

31, 2006, no pet.) (“Under this section, the State is not required to prove that the

accused intended to commit the felony prior to entry; rather, the State has to prove

that the accused, without effective consent, entered a habitation and subsequently

formed the intent to commit a felony and then committed or attempted to commit the

felony.”) (emphasis added); Leaks v. State, 13-03-613-CR, 2005 WL 704409, at *2(Tex.

App.—Corpus Christi Mar. 24, 2005, pet. ref’d) (“The State . . . must also prove that,

after entry into the habitation, appellant formed an intent to commit, and did commit,

a felony, theft or an assault.” (emphasis added).

4.

Respondent has successfully resisted review of the Fifth Circuit’s

precedent in the past by arguing that this Court should “defer” to that court’s

interpretation of Texas law. See, e.g., U.S. Br. in Opp. 13, Herrold v. United States,

No. 19-7731 (citing Bowen v. Massachusetts, 487 U.S. 879, 908 (1988), and Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004)). As a preliminary matter, that

“deference” is never absolute—Newdow itself reversed the Ninth Circuit’s

interpretation of California intermediate appellate decisions. 542 U.S. at 16.

But, on a broader level, this case involves an important and recurring question

of federal law—whether “Taylor’s demand for certainty,” applies to a sentencing

court’s interpretation of state decisional law. Shepard, 544 U.S. at 21. Though the

Fifth Circuit’s implausible construction of § 30.02(a)(3) finds some support scattered

20

in unreported decisions, it is far from certain that the court correctly interpreted

Texas law. No, the great weight of authority supports the plain reading of

§ 30.02(a)(3)—it requires only proof of commission of a crime, even if that crime was

not intentional.

5. Unlike other areas where regional courts must construe state law, the

ACCA’s categorical approach requires doubt about state law to be resolved in favor of

the defendant. In Mathis v. United States, this Court held that a sentencing judge

must treat a statute as indivisible (and non-generic) unless the relevant materials—

including state court decisions—“speak plainly.” 136 S. Ct. at 2257. That suggests

that both questions presented should be resolved in Mr. Webb’s favor.

CONCLUSION

Petitioner asks that this Court grant the petition and set the case for a decision

on the merits.

Respectfully submitted,

J. MATTHEW WRIGHT

FEDERAL PUBLIC DEFENDER’S OFFICE

NORTHERN DISTRICT OF TEXAS

500 SOUTH TAYLOR STREET, SUITE 110

AMARILLO, TEXAS 79101

MATTHEW_WRIGHT@FD.ORG

(806) 324-2370

JANUARY 25, 2021

21