Petition for Writ of Certiorari — Maurice Lamont Davis, Petitioner v. United States
Supreme Court briefAug 23, 2021
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No.
In the
Supreme Court of the United States
___________
MAURICE LAMONT DAVIS,
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
1. Under plenary appellate review, is a defendant’s trial
stipulation that he was a felon at the time he possessed a firearm
sufficient evidence that he knew of his status at the time he
possessed a firearm?
2. 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).
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 this “demand
for certainty” apply to federal courts’ application and
interpretation of state-court decisional law?
3. 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 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. Davis, No. 3:15-CR-94 (N.D. Tex.)
2.
United States v. Davis, 16-10330 (5th Cir.)
3.
Davis v. United States, 16-8997 vide 16-8777 (U.S.)
4.
United States v. Davis, 18-431 (U.S. 2019)
3.
United States v. Davis, No. 20-10228 (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...................................................................... 8
I. The Court should grant the petition and resolve the question left open by
Greer—whether a stipulation of felon status is sufficient evidence of
knowledge of that status when a defendant preserved objection to the
sufficiency of the evidence. ....................................................................................... 8
A. Unlike Greer, this case involves a preserved challenge to the sufficiency
of the evidence. .................................................................................................... 9
B. Greer left this question unresolved and the lower courts remain divided
over it. ................................................................................................................ 10
II. The Court should grant the petition because the circuit courts have reached
irreconcilable results regarding identical burglary statutes. ............................... 12
A. The Fifth Circuit and the Seventh Circuit are in conflict. .............................. 12
B. The divergent outcomes arise from broader disagreements about how to
apply the categorical approach. ........................................................................ 15
C. 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 the ACCA’s “demand for
certainty.” .......................................................................................................... 23
CONCLUSION............................................................................................................. 29
iii
PETITION APPENDIX
United States v. Glover,
850 F. App’x 890 (5th Cir. 2021) ..................................................................... 1a
United States v. Davis,
677 F. App’x 933 (5th Cir. 2017) ..................................................................... 7a
United States v. Davis,
903 F.3d 483 (5th Cir. 2018) ......................................................................... 14a
United States v. Davis,
784 F. App’x 277 (5th Cir. 2019)................................................................... 22a
iv
TABLE OF AUTHORITIES
Cases
Alacan v. State,
03-14-00410-CR, 2016 WL 286215 (Tex. App.—Austin Jan. 21,
2016, no pet.) .......................................................................................................... 26
Apprendi v. New Jersey,
530 U.S. 466 (1995) .................................................................................................. 9
Battles v. State,
13-12-00273-CR, 2013 WL 5520060 (Tex. App. Oct. 3, 2013) ......................... 26, 27
Betansos v. Barr,
928 F.3d 1133 (9th Cir. 2019) ................................................................................ 22
Brooks v. State,
08-15-00208-CR, 2017 WL 6350260 (Tex. App.—El Paso Dec. 13,
2017, pet. ref’d) ....................................................................................................... 27
Chavez v. State,
08-04-00319-CR, 2006 WL 2516464 (Tex. App.—El Paso Aug. 31,
2006, no pet.) .......................................................................................................... 28
Chazen v. Marske,
938 F.3d 851 (7th Cir. 2019) ...................................................................... 12, 14, 27
Crawford v. State,
05-13-01494-CR, 2015 WL 1243408 (Tex. App.—Dallas Mar. 16,
2015, no pet.) .......................................................................................................... 27
Daniel v. State,
07-17-00216-CR, 2018 WL 6581507 (Tex. App.—Amarillo Dec. 13,
2018, no pet.) .......................................................................................................... 26
Davis v. United States,
138 S. Ct. 1979 (2018) .............................................................................................. 5
DeVaughn v. State,
749 S.W.2d 62 (Tex. Crim. App. 1988)............................................................. 13, 24
Duran v. State,
492 S.W.3d 741 (Tex. Crim. App. 2016)................................................................. 26
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) .................................................................................................... 28
v
Gomez-Perez v. Lynch,
829 F.3d 323 (5th Cir. 2016) .................................................................................. 23
Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007) .............................................................................. 16, 17, 18, 21
Guzman v. State,
2-05-096-CR, 2006 WL 743431 (Tex. App.—Fort Worth Mar. 23,
2006, no pet.) .......................................................................................................... 27
Herrold v. United States,
No. 19-7731 ............................................................................................................. 28
Hylton v. Sessions,
897 F.3d 57 (2d Cir. 2018) .......................................................................... 19, 21, 23
Johnson v. State,
14-10-00931-CR, 2011 WL 2791251 (Tex. App.—Houston [14th
Dist.] July 14, 2011, no pet.) .................................................................................. 27
Leaks v. State,
13-03-613-CR, 2005 WL 704409 (Tex. App.—Corpus Christi Mar.
24, 2005, pet. ref’d) ................................................................................................. 28
Lomax v. State,
233 S.W.3d 302 (Tex. Crim. App. 2007)........................................................... 25, 27
Lopez-Aguilar v. Barr,
948 F.3d 1143 (9th Cir. 2020) ................................................................................ 19
Matini v. State,
05-03-00686-CR, 2004 WL 1089197 (Tex. App.—Dallas May 17,
2004, no pet.) .......................................................................................................... 27
Mowlana v. Lynch,
803 F.3d 923 (8th Cir. 2015) .................................................................................. 18
Musacchio v. United States,
577 U.S. 237 (2016) .................................................................................................. 9
Old Chief v. United States,
519 U.S. 172 (1997) ............................................................................................ 5, 11
Quarles v. United States,
139 S. Ct. 1872 (2019) ............................................................................................ 14
vi
Ramos v. Att’y Gen.,
709 F.3d 1066 (11th Cir. 2013) .............................................................................. 19
Rehaif v. United States,
139 S. Ct. 2191 (2019) ................................................................................ 6, 8, 9, 10
Salmoran v. Att’y Gen.,
909 F.3d 73 (3d Cir. 2018) ...................................................................................... 21
Scroggs v. State,
396 S.W.3d 1 (Tex. App.—Amarillo 2010, pet. ref’d, untimely filed) ................... 26
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) .............................................................................................. 5
Singh v. Att’y Gen.,
839 F.3d 273 (3d Cir. 2016) .............................................................................. 19, 21
Swaby v. Yates,
847 F.3d 62 (1st Cir. 2017) ............................................................................... 19, 21
Torrez v. State,
12-05-00226-CR, 2006 WL 2005525 (Tex. App.—Tyler July 19,
2006, no pet.) .......................................................................................................... 27
United States v. Brown,
727 F.3d 329 (5th Cir. 2013) .................................................................................. 10
United States v. Burden,
964 F.3d 339 (5th Cir. 2020) .................................................................................. 10
United States v. Castillo-Rivera,
853 F.3d 218 (5th Cir. 2017) (en banc) ............................................................ 15, 21
United States v. Dancy,
861 F.2d 77 (5th Cir. 1988) ...................................................................................... 8
United States v. Daniels,
930 F.3d 393 (5th Cir. 2019) .................................................................................... 9
United States v. Davis,
139 S. Ct. 2319 (2019) .......................................................................................... 3, 6
United States v. Davis,
677 F. App’x 933 (5th Cir. 2017) .......................................................................... 1, 5
vii
United States v. Davis,
784 F. App’x 277 (5th Cir. 2019) .......................................................................... 1, 6
United States v. Davis,
903 F.3d 483 (5th Cir. 2018) ................................................................................ 1, 6
United States v. Gaudin,
515 U.S. 506 (1995) .................................................................................................. 8
United States v. Greer,
141 S. Ct. 2090 (2021) .................................................................................. 9, 10, 12
United States v. Grisel,
488 F.3d 844 (9th Cir. 2007) (en banc), abrogated on other grounds
by United States v. Stitt, 139 S. Ct. 399 (2018) ..................................................... 19
United States v. Herrold,
941 F.3d 173 (5th Cir. 2019) (en banc) ...................................................... 13, 15, 17
United States v. Maez,
960 F.3d 949 (7th Cir. 2020) .................................................................................. 11
United States v. McCall,
553 F.3d 821 (5th Cir. 2008) .................................................................................... 9
United States v. Medley,
972 F.3d 399 (4th Cir. 2020) .................................................................................. 12
United States v. Owens,
966 F.3d 700 (8th Cir. 2020) .................................................................................. 11
United States v. Staggers,
961 F.3d 745 (5th Cir. 2020) .............................................................................. 8, 10
United States v. Titties,
852 F.3d 1257 (10th Cir. 2017) ........................................................................ 20, 21
United States v. Wallace,
964 F.3d 386 (5th Cir. 2020) ............................................................................ 13, 15
United States v. Ward,
957 F.3d 691 (6th Cir. 2020) .................................................................................. 11
Van Cannon v. United States,
890 F.3d 656 (7th Cir. 2018) ...........................................................................passim
viii
Wingfield v. State,
282 S.W.3d 102 (Tex. App.—Fort Worth 2009, pet. ref’d) .................................... 26
Statutes
8 U.S.C. § 1101(a)(43) .................................................................................................. 23
8 U.S.C. § 1101(a)(43)(G) ............................................................................................. 16
18 U.S.C. § 922(g) .......................................................................................................... 6
18 U.S.C. § 922(g)(1) .................................................................................................. 8, 9
18 U.S.C. §§ 922(g)(1) & 924(e) ..................................................................................... 7
18 U.S.C. § 924(c) ....................................................................................................... 6, 7
18 U.S.C. § 924(e)..................................................................................................passim
18 U.S.C. § 1951(a) ........................................................................................................ 7
21 U.S.C. § 802 ............................................................................................................. 20
28 U.S.C. § 1254(1) ........................................................................................................ 1
34 U.S.C. § 20911 ......................................................................................................... 23
California Vehicle Code § 1851(a) ............................................................................... 16
Minn. Stat. Ann. § 609.582 (eff. Aug. 1, 1988)............................................................ 14
Mont. Code § 45-6-204(1)(b) & (2)(a)(ii) (eff. Oct. 1, 2009) ......................................... 14
N.C. Gen. Stat. § 14-53 ................................................................................................ 13
Pub. L. 98-473, § 1803(2) (1984) .................................................................................. 13
Tenn. Code Ann. § 39-14-402(a)(3) (eff. July 1, 1995) ................................................ 14
Texas Penal Code § 19.02(b) ........................................................................................ 25
Texas Penal Code § 22.01(a)(1) ................................................................................... 22
Texas Penal Code § 22.04 ............................................................................................ 27
Texas Penal Code § 30.02(a) .................................................................................... 2, 25
Texas Penal Code § 30.02(a)(1) ................................................................................... 24
ix
Texas Penal Code § 30.02 (a)(2) .................................................................................. 24
Texas Penal Code § 30.02(a)(3) ............................................................................passim
Other Authorities
William Blackstone, Commentaries on the Laws of England (1769) ......................... 13
x
PETITION FOR A WRIT OF CERTIORARI
Petitioner Maurice Lamont Davis 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 below (App. 1a–6a) is not published in the Federal
Reporter but is reprinted at 850 F. App’x 890. The Fifth Circuit issued three prior
opinions in the case, but only one is published in the Federal Reporter: 677 F. App’x
933 (App. 7a–13a); 903 F.3d 483 (App. 14a–21a); and 784 F. App’x 277 (App. 22a–
24a).
JURISDICTION
The Fifth Circuit issued its judgment on March 26, 2021. On March 19, 2020,
this Court extended the deadline to file petitions for certiorari in all cases to 150 days
from the judgment. Under the July 19, 2021 order, that extension remains in effect
for any cases where the Court of Appeals issued its judgment on or before July 19,
2021. 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
1
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—
(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:
2
(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.
STATEMENT
Petitioner Maurice Lamont Davis was convicted by a jury for his role in two
armed robberies of Murphy U.S.A. kiosk-style convenient stores in the Dallas-Fort
Worth Metroplex. Mr. Davis has appeared before this Court twice before in
connection with this prosecution, first as petitioner (139 S. Ct. 1979) and then as
respondent (139 S. Ct. 2319).
Mr. Davis participated in two robberies, both on June 22, 2014. Around 7:00
a.m., two men robbed the Mansfield, Texas Murphy U.S.A. store. The man in the
“blue shirt”— identified in testimony as Andre Glover —pointed a short-barrel
shotgun at the clerk, and the robbers demanded that she go to the “back room,” which
serves as storage facility and restroom. (5th Cir. R. 473–474). The robbers took
several boxes of cigarettes and threw them into a gray tub. (5th Cir. R. 476). When
the clerk told the robbers she could not access the money in a time-lock safe, they left
and she called the police. (5th Cir. R. 479). Surveillance video shows that Mr. Glover
(in the blue shirt) was the only one who held the shotgun.
Around half an hour later, they robbed the Murphy USA store in Midlothian,
Texas. The Assistant Manager had the store’s safe open because she was about to
deposit the previous day’s earnings. (5th Cir. R. 500). Mr. Glover burst into the store
3
and pointed the shotgun at her. (5th Cir. R. 504). Mr. Davis hopped over the counter
and took the cash she was about to deposit, as well as additional cigarettes that were
on display. (5th Cir. R. 505; 5th Cir. R. 509). They left, and the manager called the
police. (5th Cir. R. 513–514). Once again, Mr. Glover was the only one who touched
the shotgun, and he got into the driver’s seat while Mr. Davis got into the back seat.
The victim recognized the getaway car as a gold Honda SUV without a license plate.
(5th Cir. R. 502; see 5th Cir. R. 536).
Dispatch relayed the vehicle’s description to officers in the area. (5th Cir. R.
536–537). Two police officers in Alvarado, Texas, began watching the highway
because they believed the robbers might have driven from Midlothian in their
direction. (5th Cir. R. 537–538). They spotted the Gold Honda and followed it into a
McDonald’s drive-through lane. (5th Cir. R. 540). When one of the officers confronted
Glover, the SUV sped away. (5th Cir. R. 542). Police chased the car for a couple of
miles at speeds approaching 90 miles per hour, until it crashed and the suspects fled
on foot. (5th Cir. R. 544–547). Mr. Glover and Mr. Davis tried to hide, but officers
found them and arrested them. (5th Cir. R. 551–554). Officers recovered the sawedoff shotgun from the floorboard of the crashed-out Honda, behind the driver’s seat
and buried under other items from the robberies that had apparently fallen over. (5th
Cir. R. 649; 5th Cir. R. 999–1001). Mr. Davis confessed his involvement in the
robberies later that day. (5th Cir. R. 667–671). Mr. Davis’s statement to police
confirmed that Glover—not Mr. Davis—possessed the sawed-off shotgun. (5th Cir. R.
669–670).
4
The federal government charged Maurice Davis and Andre Glover in an eightcount indictment: one count of Hobbs Act conspiracy, Hobbs Act robbery (three counts
for Mr. Davis, four for Glover), two counts of possession of a firearm in furtherance of
a crime of violence, and, for Mr. Davis, possession of a firearm after felony conviction.
(5th Cir. R. 16–28).
Mr. Davis signed a stipulation at trial (November 18, 2015) that he was
convicted of a felony offense, but did not stipulate anything about his awareness or
knowledge of his status:
The Defendant hereby stipulates that, prior to the date of arrest, June
22nd, 2014, the Defendant had sustained a felony conviction punishable
by imprisonment for a period for a term exceeding one year. Accordingly,
the Defense agrees that the Government has carried its burden of proof
as to this element of Count 8 of the indictment.
(5th Cir. R. 466); see generally Old Chief v. United States, 519 U.S. 172 (1997). The
parties later amended that stipulation to admit a felony conviction prior to June 16,
2014. (5th Cir. R. 604; see 5th Cir. R. 1220). And Mr. Davis’s friend Marlon Moss
likewise confirmed at trial that Mr. Davis was a felon. (5th Cir. R. 821).
The jury convicted Mr. Davis of six counts but acquitted him of the substantive
robbery offense committed June 16, 2014. (5th Cir. R. 227–229). The district court
originally sentenced him to more than 50 years in prison (5th Cir. R. 1503).
In the first appellate decision, January 2017, the Fifth Circuit affirmed all
counts of conviction and the entire sentence. See United States v. Davis, 677 F. App’x
933 (5th Cir. 2017). This Court vacated that decision and remanded for
reconsideration in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See Davis v.
5
United States, 138 S. Ct. 1979 (2018). On the first remand, the Fifth Circuit vacated
the defendants’ convictions and sentences on Count Two (for possession of a firearm
in furtherance of conspiracy) and affirmed the convictions and sentences on all other
counts. United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018). The Government
petitioned for certiorari, and the defendants moved for rehearing.
This Court granted certiorari, ultimately affirming the Fifth Circuit’s decision
that the 18 U.S.C. § 924(c) residual clause was unconstitutionally vague. United
States v. Davis, 139 S. Ct. 2319, 2336 (2019). The Court remanded the case to the
Fifth Circuit a second time for a ruling on the still-pending rehearing petitions. Id.
On the second remand, the Fifth Circuit granted the defendants’ petitions for
rehearing and vacated the sentences on all counts. United States v. Davis, 784 F.
App’x 277 (5th Cir. 2019). The Court re-affirmed all the convictions other than the
conspiracy-predicated § 924(c) conviction. Id.
After returning to the district court, Mr. Davis renewed his objections to
application of the Armed Career Criminal Act, 18 U.S.C. § 924(e), and to the
remaining § 924(c) conviction and sentence. (5th Cir. R. 1725–1728). He also objected
to any conviction or sentence on the felon-in-possession count, in light of this Court’s
then-recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held
that knowledge of felon status was an element of the crime defined in 18 U.S.C.
§ 922(g). Mr. Davis noted that the Government presented no evidence at trial that he
knew of his felon status at the time of the offense. (5th Cir. R. 1559). The district
court overruled these objections. (5th Cir. R. 1567–1568).
6
In light of those rulings, Mr. Davis faced a mandatory minimum sentence of
300 months in prison and a guideline range of 308–355 months. The district court
varied down to 300 months in light of the mitigating evidence Mr. Davis presented at
the re-sentencing hearing. (5th Cir. R. 1570–1573; 5th Cir. R. 1576). But the court
could go no lower without disturbing the ACCA enhancement for Count Eight or the
§ 924(c) conviction in Count Seven.
The district court recorded the new sentence in an amended judgment entered
on March 3, 2020. That judgment reflects the following convictions and sentences:
Count
1
Date and
Location of
Offense
June 16–22, 2014
5
June 22, 2014
(Mansfield, Texas)
6
June 22, 2014
(Midlothian, Texas)
7
June 22, 2014
8
June 22, 2014
Offense
Conspiracy to
Interfere with
Commerce by
Robbery
Interference with
Commerce by
Robbery
Interference with
Commerce by
Robbery
Brandishing a
Short-Barrel
Shotgun in
Furtherance of a
Crime of Violence
Felon in
Possession of a
Firearm
Statute
Sentence
18 U.S.C.
§ 1951(a)
180 months,
concurrent
with 5, 6, 8
18 U.S.C.
§ 1951(a)
180 months,
concurrent
with 1, 6, 8
180 months,
concurrent
with 1, 5, 8
120 months,
consecutive to
all other
counts
18 U.S.C.
§ 1951(a)
18 U.S.C.
§ 924(c)
18 U.S.C.
§§ 922(g)(1) &
924(e)
180 months,
concurrent
with 1, 5, 6
Mr. Davis appealed this judgment to the Fifth Circuit. As relevant here, he
preserved his arguments that the Government presented insufficient evidence that
he knew of his status and that his prior Texas burglary convictions were not for
7
“violent felonies” as defined by the Armed Career Criminal Act. Pet. App. 3–6 & n.3.
The Fifth Circuit rejected both arguments. Id. This timely petition follows.
REASONS TO GRANT THE PETITION
I.
THE COURT SHOULD GRANT THE PETITION AND RESOLVE THE QUESTION
LEFT OPEN BY GREER—WHETHER A STIPULATION OF FELON STATUS IS
SUFFICIENT
EVIDENCE
DEFENDANT
PRESERVED
OF
KNOWLEDGE
OBJECTION
TO
OF
THAT
THE
STATUS
SUFFICIENCY
WHEN
OF
A
THE
EVIDENCE.
Mr. Davis’s conviction on Count Eight cannot stand in light this Court’s
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held “that
knowledge of felon status is an element of a § 922(g)(1) offense.” United States v.
Staggers, 961 F.3d 745, 754 (5th Cir. 2020). This decision overruled many years of
Fifth Circuit precedent. See Staggers, 961 F.3d at 754 (“Before Rehaif, we—along with
every other circuit court to have considered the issue—required the United States to
prove that a defendant knowingly possessed a firearm but not that the defendant
knew he or she was a felon.”); see, e.g., United States v. Dancy, 861 F.2d 77, 81–82
(5th Cir. 1988).
At Mr. Davis’s trial, the Government presented no evidence that he knew he
was a felon. “The Fifth Amendment to the United States Constitution guarantees
that no one will be deprived of liberty without ‘due process of law’; and the Sixth, that
‘in all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury.’” United States v. Gaudin, 515 U.S. 506, 509–510 (1995)
(quoting U.S. Const., amends. V & VI) (cleaned up). “[T]hese provisions require
criminal convictions to rest upon a jury determination that the defendant is guilty of
every element of the crime with which he is charged, beyond a reasonable doubt.” Id.
8
They are “constitutional protections of surpassing importance.” Apprendi v. New
Jersey, 530 U.S. 466, 476 (1995).
A federal appellate court reviewing the sufficiency of the evidence presented at
trial must test that evidence against a hypothetically correct jury charge. See
Musacchio v. United States, 577 U.S. 237, 245 (2016). The trial jury did not find that
Mr. Davis knew he was a convicted felon on the date he supposedly possessed the
gun, and the Government made no attempt to prove that fact.
A. Unlike Greer, this case involves a preserved challenge to the
sufficiency of the evidence.
In United States v. Greer, 141 S. Ct. 2090 (2021), this Court upheld the
conviction of a defendant who, like Mr. Davis, was tried for violation of 18 U.S.C.
§ 922(g)(1) before Rehaif. But the trial defendant in Greer “forfeited [his] mens rea
claims by failing to properly preserve them.” Id. at 2096. Thus, he had to overcome
the difficult burden of showing a reversible “plain error.” Id.
Mr. Davis, however, did preserve his sufficiency-of-the-evidence argument
under Federal Rule of Criminal Procedure 29 in accordance with governing Fifth
Circuit precedent. That court has long distinguished between “general” Rule 29
motions and “specific” Rule 29 motions. “Rule 29 motions need not be specific.” United
States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008). It is enough for the defendant to
use “general language about the insufficiency of all of the evidence for all elements of
all counts.” Id.; accord United States v. Daniels, 930 F.3d 393, 402 (5th Cir. 2019)
(“When a defendant makes a general sufficiency-of-the-evidence challenge, we review
the sufficiency of the evidence supporting a conviction de novo.”).
9
But when a defendant “assert[s] ‘specific grounds for a specific element of a
specific count for a Rule 29 motion,’” he “fail[s] to preserve sufficiency challenges to”
other elements. United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013) (quoting
United States v. Herrera, 313 F.3d 882, 884 (5th Cir.2002) (en banc) (per curiam)).
Cognizant of the distinction, Mr. Davis raised a general Rule 29 motion at trial. 5th
Cir. R. 819. He renewed that motion at the close of all evidence. 5th Cir. R. 834. He
reiterated the motion at re-sentencing, specifically noting that Rehaif overruled Fifth
Circuit precedent and held that the Government must prove knowledge of status. 5th
Cir. R. 1559; 5th Cir. R. 1567. The Fifth Circuit deemed the error preserved, and
applied plenary appellate review. Pet. App. 4a.
B. Greer left this question unresolved and the lower courts
remain divided over it.
Greer did not address how a federal appellate court should apply the sufficiency
standard to a preserved Rehaif error. The circuits remain divided over how to analyze
the claims under plenary review. The Fifth Circuit has held that a stipulation of felon
status is sufficient evidence of knowledge, but described this as a “close call”: “absent
any evidence suggesting ignorance, a jury applying the beyond-a-reasonable-doubt
standard could infer that a defendant knew that he or she was a convicted felon from
the mere existence of a felony conviction.” Staggers, 961 F.3d at 757.
The Court reached the same conclusion in United States v. Burden, 964 F.3d
339, 348 (5th Cir. 2020), but also acknowledged doubt about the result it reached:
“Although that stipulation alone does not necessarily place the question entirely
beyond debate,” there was sufficient evidence to convict.
10
The Sixth and Eighth Circuits have also held that stipulation to felony status
is sufficient evidence to find knowledge of felony status beyond a reasonable doubt.
See United States v. Ward, 957 F.3d 691, 696 (6th Cir. 2020) (“Ward made an Old
Chief stipulation at trial, pursuant to which he acknowledged that he was a convicted
felon on and prior to the date of the charged conduct[.]’ Ward’s lawyer also told the
jury that Ward was ‘stipulating that he has a felony. So you can check that one off
the box.’ The jury could have inferred from these statements that Ward also knew
that he was a felon.”)1; United States v. Owens, 966 F.3d 700, 709 (8th Cir. 2020)
(“Although the evidence was slender, we conclude that it was legally sufficient to
establish knowledge and sustain the conviction. Rational jurors, using reason and
common sense in light of their own observations and experiences, could infer beyond
a reasonable doubt that a felony conviction would be a significant life event that a
person would know about when it happened and remember at a later date.”).
But the Seventh Circuit refused “to go quite so far as to hold that an Old Chief
stipulation standing alone is sufficient to infer, beyond a reasonable doubt, a
defendant’s knowledge of his status as a felon at the time of the charged possession
of the firearm.” United States v. Maez, 960 F.3d 949, 967 (7th Cir. 2020). And one
Fourth Circuit panel explicitly held that the existence of felon status, without more,
would not allow someone to find knowledge of that status beyond a reasonable doubt:
Inferring that someone knew he was prohibited from possessing a
firearm at the time of the offense based on a stipulation at trial that he
1 See Old Chief v. United States, 519 U.S. 172, 186 (1997).
11
was in fact a prohibited person would render the Supreme Court's
language in Rehaif pointless.
United States v. Medley, 972 F.3d 399, 414 (4th Cir. 2020), reh’g en banc granted, 828
F. App’x 923 (4th Cir. 2020).
As Justice Sotomayor pointed out in her separate opinion in Greer, this Court
did not resolve how to analyze preserved Rehaif errors. For claims preserved by
contemporaneous objection at trial, it “would be patently unfair” to place the burden
on the defendant to prove that he lacked knowledge of his status, or to rely on
evidence outside the trial record. Greer, 141 S. Ct. at 2102 (Sotomayor, J., concurring
in part) (citing Neder v. United States, 527 U.S. 1, 7 (1999)).
It would be appropriate to grant review here and address whether proof of the
existence of a prior felony conviction, without more, would allow a rational jury to
conclude that the defendant knew of his status.
II. THE COURT SHOULD GRANT THE PETITION BECAUSE THE CIRCUIT COURTS
HAVE
REACHED
IRRECONCILABLE
RESULTS
REGARDING
IDENTICAL
BURGLARY STATUTES.
A. The Fifth Circuit and the Seventh Circuit are in conflict.
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
Fifth Circuit, the trespass-plus-crime offense defined in Texas Penal Code
12
§ 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)2 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
unlawful entry. DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988)
2 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).
13
(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 § 456-204(1)(b) & (2)(a)(ii) (eff. Oct. 1, 2009); Tennessee, see Tenn. Code Ann. § 39-14402(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-pluscrime 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, because 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. The Seventh Circuit explicitly
held that this principle survived Quarles in Chazen v. Marske, 938 F.3d 851, 860 (7th
Cir. 2019).
14
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 Minnesota crime
addressed in Van Cannon—was generic. Herrold, 941 F.3d at 177. The court gave two
reasons for its holding that Texas burglary was non-generic, 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 non-generic theory. See United States v. CastilloRivera, 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.
B. The divergent outcomes arise from broader disagreements
about how to apply the categorical approach.
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
has prosecuted someone on non-generic facts. This demand to provide proof that a
15
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
responsible for what he intended “and for what ‘naturally and probably’ result[ed]
16
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
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.’”).
17
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
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
18
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
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
19
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 Fifth Circuit’s 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
focus on “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.
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
20
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
prosecution is necessary would be if the defendant were attempting to show that the
state statute extended beyond its plain-text meaning.
21
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
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
22
“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).
C. 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 the
ACCA’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
23
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).
1. In Texas, the crimes of murder and burglary share a similar structure:
24
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 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
25
§ 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);
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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, 938
F.3d at 860, that makes § 30.02(a)(3) non-generic. This is even more obvious after
Borden v. United States held that reckless conduct does not satisfy the ACCA’s
elements clause. But the Fifth Circuit has held that § 30.02(a)(3) burglary is generic
burglary. 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
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reasonable doubt, that the accused, without effective consent, entered a building or
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
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Fifth Circuit’s implausible construction of § 30.02(a)(3) finds scattered support among
three unreported decisions, but no one could claim certainty that the Fifth Circuit
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 the second and third questions presented should be resolved in Mr. Davis’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
AUGUST 23, 2021
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.