Petition for Writ of Certiorari — Victor Nava, Jr., Petitioner v. United States

Supreme Court briefJan 28, 2022

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No. ___________

________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

________________________________________________________

October Term, 2021

________________________________________________________

VICTOR NAVA, JR.,

JR.

Petitioner

UNITED STATES OF AMERICA,

AMERICA

Respondent

________________________________________________________

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

________________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________________

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN 00792137

Attorney for Petitioner

Question Presented

1. Does the Supreme Court’s holding in Borden v. United States, 141 S.

Ct. 1817 (2021) that a reckless aggravated assault cannot qualify as a

“crime of violence” under the elements clause of the Armed Career

Criminal Act mean that a reckless injury-causing robbery (under Texas

law) likewise cannot qualify as a “crime of violence” under the

enumerated offense clause of the Career Offender Guideline?

Table of Contents

Page

Question Presented

Table of Contents

iii-iv

Table of Authorities

v-viii

Citation to Opinion Below

Jurisdiction

Career Offender Sentencing Guidelines

ACCA Statute

Statement of the Case

4-7

First Reason for Granting the Writ: The difference between

a “crime of violence” in the ACCA and robbery as a “crime of

violence” in U.S.S.G. § 4B1.2 is minimal.

9-13

Second Reason for Granting the Writ: The Supreme Court’s

language in Borden would appear to apply to reckless

crimes in general, not just reckless crimes under the

ACCA’s elements clause.

14-15

Third Reason for Granting the Writ: Texas injury-causing

robbery does not come within the generic definition of

robbery.

16-17

Fourth Reason for Granting the Writ: Allowing recklessly

caused injury robbery to be a career offender predicate will

sweep defendants into career offender status that

Congress never intended.

17-19

iii

Fifth Reason for Granting the Writ: The Career Offender

Guideline includes attempt; a person cannot recklessly

attempt to use force.

Conclusion

Certificate of Service

Appendix A: Opinion of Fifth Circuit Court of Appeals

Table of Authorities

Page(s)

Cases

Borden v. United States,

141 S. Ct. 1817 (2021) ......................................................... 9, 14, 15, 17

Chambers v. United States,

555 U.S. 122 (2009) ............................................................................. 13

Craver v. State,

2015 Tex. App. LEXIS 6569 (Tex. App.—Fort Worth,

2015, pet. ref’d) ................................................................................... 17

Garcia v. State,

2012 Tex. App. LEXIS 5224 (Tex. App.—Corpus Christi

June 28, 2012, no pet.) ........................................................................ 18

Harris v. State,

1999 Tex. App. LEXIS 8845 (Tex. App.—Dallas, 1999, no

pet.) ..................................................................................................... 18

Hernandez v. State,

268 S.W.3d 176 (Tex. App.—Corpus Christi 2008, no pet.) ............... 17

Hopkins v. United States,

555 U.S. 1132 (2009) ........................................................................... 13

Orlando v. State,

2009 Tex. App. LEXIS 3948 (Tex. App.—Fort Worth June

4, 2009, pet. ref’d) ......................................................................... 16, 18

Rocha v. State,

648 S.W.2d 298 (Tex. Crim. App. 1982) ............................................... 5

In re Sealed Case,

548 F.3d 1085 (D.C. Cir. 2008) ........................................................... 13

Sidney v. State,

560 S.W. 679 (Tex. Crim. App. 1978) ................................................... 4

Smith v. State,

2013 Tex. App. LEXIS 1146 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) ............................................................................. 18

Sykes v. United States,

564 U.S. 1 (2011) ................................................................................. 11

Taylor v. United States,

495 U.S. 575 (1990) ............................................................................. 10

United States v. Brown,

765 F.3d 185 (3d Cir. 2014) ................................................................ 12

United States v. Brown,

916 F.3d 706 (8th Cir. 2019) ............................................................... 12

United States v. Burris,

920 F.3d 942 (5th Cir. 2019) ............................................................. 7, 8

United States v. Hopkins,

264 F. App’x 173 (3d Cir. 2008) .......................................................... 13

United States v. Lerma,

877 F.3d 628 (5th Cir. 2017) ................................................................. 7

United States v. Mathis,

963 F.2d 399 (D.C. Cir. 1992) ....................................................... 11, 16

United States v. Morris,

885 F.3d 405 (6th Cir. 2018) ............................................................... 12

United States v. Nava,

2021 U.S. App. LEXIS 32589 (5th Cir. 2021)....................................... 9

United States v. Resendiz-Ponce,

549 U.S. 102 (2007) ............................................................................. 19

United States v. Sanchez,

667 F.3d 555 (5th Cir. 2012) ............................................................... 19

United States v. Santiesteban-Hernandez,

469 F.3d 376 (5th Cir. 2006) ................................................................. 9

United States v. Spencer,

724 F.3d 1133 (9th Cir. 2013) ............................................................. 12

Voisine v. United States,

136 S.Ct. 2272 (2016) ........................................................................ 7, 8

Statutes

18 U.S.C. § 924(c)(3) .................................................................................. 3

28 U.S.C. § 994(h) .............................................................................. 11, 12

28 U.S.C. § 994(h)(1)(A) .......................................................................... 17

Tex. Penal Code Ann. § 6.02(d) ................................................................. 5

Tex. Penal Code Ann. § 29.02(a) ............................................................... 4

Tex. Penal Code Ann. § 29.02(a)(1) ..................................................... 5, 16

Tex. Penal Code Ann. § 29.03(a) ............................................................... 5

Tex. Penal Code Ann. § 29.03(a)(2) ........................................................... 5

Sentencing Guidelines

U.S.S.G. § 4B1.1(a) .................................................................................... 2

U.S.S.G. § 4B1.2 ................................................................ 6, 10, 12, 13, 19

U.S.S.G. § 4B1.2(a) ...................................................................... 2, 6, 9, 12

U.S.S.G. § 4B1.2, cmt. n. 1 ...................................................................... 19

U.S.S.G. App. C, amend. 798 .............................................................. 6, 11

vii

Other Authorities

Model Penal Code (1980) .......................................................................... 7

H.Rep. No. 849, 99th Cong., 2d Sess. 3 (1986) ....................................... 11

Black’s Law Dictionary (6th ed. 1990) ................................................... 19

Webster’s New World Dictionary (2nd college ed. 1970) ........................ 11

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Victor Nava, Jr. respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of Appeals

for the Fifth Circuit.

Citation to Opinion Below

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming Nava’s conviction and sentence is styled: United States

v. Nava, ___ F. App’x ___, 2021 U.S. App. LEXIS 32589 (5th Cir. 2021).

Jurisdiction

The opinion of the United States Court of Appeals for the Fifth

Circuit affirming the Nava’s conviction and sentence was announced on

November 2, 2021 and is attached hereto as Appendix A. Pursuant to

Supreme Court Rule 13.1, this Petition has been filed within 90 days of

the date of the judgment. This Court’s jurisdiction is invoked pursuant to

28 U.S.C. § 1254(1).

Career Offender Sentencing Guidelines

U.S.S.G. § 4B1.1(a):

4B1.1(a):

A defendant is a career offender if (1) the defendant was at

least eighteen years old at the time the defendant committed

the instant offense of conviction; (2) the instant offense of

conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) the defendant has at

least two prior felony convictions of either a crime of violence

or a controlled substance offense.

U.S.S.G. § 4B1.2(a):

“Crime of violence” means any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that:

(1) has as an element the use, attempted use, or threatened

use of physical force against the person of another, or

(2) is murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, robbery, arson,

extortion, or the use or unlawful possession of a firearm

described in 26 U.S.C. § 5845(a) or explosive material as

defined in 18 U.S.C. § 841(c).

ACCA Statute:

18 U.S.C. § 924(c)(3):

[T]he term “crime of violence” means an offense that is a felony and:

(A) has an element the use, attempted use, or threatened us

of physical force against the person or property of another[.]

Statement of the Case

Nava was sentenced as a career offender based in part1 on an

aggravated robbery conviction out of Midland County, Texas wherein he

pled guilty to “intentionally, knowingly, and recklessly caus[ing] bodily

injury to Eric Adkinson by striking Eric Adkinson with his hand and with

the bottom of a knife” while exhibiting a deadly weapon.

The Texas robbery statute provides:

A person commits an offense if, in the course of committing

theft as defined in Chapter 31 and with intent to obtain or

maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily

injury to another; or

(2) intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death.

Tex. Penal Code Ann. § 29.02(a). The mens rea of “recklessly” applies only

to robbery causing bodily injury. Sidney v. State, 560 S.W. 679, 682 n.2

(Tex. Crim. App. 1978). By definition under Texas law, "reckless" is a

1 Nava’s other career offender predicate was a 2009 federal importation of marijuana

conviction. Nava argued that this conviction was not a proper career offender

predicate because marihuana was defined more broadly in the Controlled Substances

Act at the time of Nava’s conviction (in that it included hemp) than it was at the time

of his sentencing herein. The Fifth Circuit held that “the question remains an open

one in the Fifth Circuit” and thus Nava failed to show plain error.

lesser culpable mental state than "intentional or knowing." See Tex.

Penal Code Ann. § 6.02(d); Rocha v. State, 648 S.W.2d 298, 302 (Tex.

Crim. App. 1982) (op. on reh'g). The Texas aggravated robbery statute

provides:

A person commits an offense if he commits robbery as defined

in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or

places another person in fear of imminent bodily injury or

death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

Tex. Penal Code Ann. § 29.03(a).

Nava was convicted under Tex. Penal Code Ann. § 29.02(a)(1)

(intentionally, knowingly, or recklessly causing bodily injury to another)

and Tex. Penal Code Ann. § 29.03(a)(2) (uses or exhibits a deadly

weapon). Nava’s base offense level without the career offender

enhancement was 24. With the enhancement, his base offense level

jumped to 37. He objected in writing and at sentencing that his robbery

conviction was not a crime of violence.

Nava argued on appeal that his aggravated robbery conviction did

not qualify under U.S.S.G. § 4B1.2(a)’s enumerated offense clause (which

includes robbery) because a mens rea of recklessness was incongruent

with the generic definition of robbery in the Model Penal Code. More

specifically, in 2016 § 4B1.2 was amended in several ways. See U.S.S.G.

App. C, amend. 798. As to the enumerated offenses clause the Sentencing

Commission stated:

In applying this [enumerated offense] clause, courts compare

the elements of the predicate offense of conviction with the

elements of the enumerated offense in its “generic,

contemporary definition.”

U.S.S.G. App. C, amend. 798. Nava cited to the Model Penal Code (which

Fifth Circuit case law had previously relied on in addressing whether

Texas robbery was a “crime of violence”). The Model Penal Code defines

robbery thusly:

A person is guilty of robbery if, in the course of committing a

theft, he:

(a) inflicts serious bodily injury upon another; or

(b) threatens another with or purposely puts him in fear of

immediate serious bodily injury; or

of the first or second degree.

American Law Institute, Model Penal Code § 222.1 (1980). Nava noted

that while this definition includes inflicting serious bodily injury, it does

not include merely causing bodily injury, let alone whether a mens rea of

recklessness suffices.

Nava then argued that Nava’s Texas robbery conviction likewise

did not qualify as a crime of violence under the elements clause of the

career offender guideline. He addressed two Fifth Circuit cases (United

States v. Lerma, 877 F.3d 628 (5th Cir. 2017) and United States v. Burris,

920 F.3d 942 (5th Cir. 2019)), both of which had held that Texas robbery

constitutes a violent crime for purposes of the ACCA elements clause.

The defendant in Lerma, unlike Nava, did not plead guilty to reckless

injury-causing robbery, but instead to knowingly and intentionally

threatening the victim and placing he victim in fear of imminent bodily

injury or death, while using and exhibiting a gun. Thus the issue of

whether reckless injury-causing robbery constitutes a violent crime was

simply not before the court.

Burris, on the other hand, did involve injury-causing robbery. The

Fifth Circuit relied on Voisine v. United States, 136 S.Ct. 2272 (2016) for

the proposition that that reckless conduct can constitute physical force

for purposes of a crime of violence. Nava argued that the Burris panel

cited Voisine for a proposition for which it does not stand. The issue

before the Court in Voisine was whether an assault committed only with

a mens rea of recklessness could properly be a predicate for § 922(g)(9).

The Court held that it could, noting that the statute was enacted to

prohibit domestic abusers from possessing guns and that two-thirds of

the states include recklessness as a mens rea in their misdemeanor

assault and battery statutes. But the Voisine Court was careful to cabin

its holding. The Court held that while reckless conduct in the context of

domestic assault can be sufficient to constitute a crime of violence, such

is not necessarily true in other contexts.

Nava filed his principal brief on May 13, 2021, at which time

Borden was still pending before this Court. Nava did point out in his

principal brief the issue that the Court would be addressing in Borden.

On June 11, 2021, the day Borden was decided, Nava filed a Rule 28(j)

letter with the Fifth Circuit, citing Borden for the proposition that

reckless conduct that does not require the “use of physical force against

the person of another” is not an ACCA predicate.

The Government argued in its brief that: (1) Nava’s robbery

sentencing enhancement was based on the enumerated offenses clause of

the career offender guideline (not the elements clause of the ACCA

addressed in Borden), (2) the enumerated offenses clause in the career

offender guideline specifically references robbery, and (3) the Fifth

Circuit has previously held that Texas robbery fits within the generic

definition of robbery. The Fifth Circuit agreed with the Government:

Relying on the Supreme Court's recent decision in Borden v.

United States, . . . Nava argues that an offense must be

purposeful to qualify as a crime of violence. Because the Texas

statute criminalizes reckless conduct, he contends that his

prior conviction cannot be considered a crime of violence.

However, Borden, 141 S. Ct. at 1825, held that an offense with

a mens rea of recklessness cannot qualify as a violent felony

under the elements clause of the Armed Career Criminal Act

[.] [I]t did not address recklessness in the context of

enumerated offenses. Under United States v. SantiestebanHernandez, 469 F.3d 376, 377-82 (5th Cir. 2006), . . . Nava's

Texas conviction for aggravated robbery with a deadly weapon

meets the definition of generic robbery. It therefore qualifies

as a crime of violence under the enumerated offenses clause

of U.S.S.G. § 4B1.2(a).

United States v. Nava, 2021 U.S. App. LEXIS 32589, at *2-3 (5th Cir.

2021).

First Reason for Granting the Writ: The difference between a

violence”” in the ACCA and robbery as a “crime of violence” in

“crime of violence

U.S.S.G. § 4B1.2 is minimal.

Under the Armed Career Criminal Act of 1984, any felon found in

possession of a firearm, who had three prior convictions for “robbery or

burglary,” was to receive a mandatory minimum sentence of 15 years

imprisonment. Taylor v. United States, 495 U.S. 575, 581 (1990). The

House Report accompanying the act stated that “robbery and burglary

are the crimes most frequently committed by “these career criminals.” Id.

Robbery was defined in the statute, Congress intending that the

enhancement apply to crimes having certain elements, not by labels.

Taylor, 495 U.S. at 588-89. The Career Criminals Amendment Act of

1986 expanded the predicate offenses from “robbery or burglary” to “a

violent felony or a serious drug offense.” Taylor, 495 U.S. at 582.

Congress, by eliminating “robbery” from the definition, was not

suggesting that robbery should no longer be a predicate for the

enhancement, but instead “extending the range of predicate offenses to

all crimes having certain common characteristics.” Id. at 589. Congress

thus chose to frame the Armed Career Criminal Act (ACCA) in

qualitative2 terms instead of compiling a list of covered offenses. Sykes v.

United States, 564 U.S. 1, 15 (2011). The House Committee on the

Judiciary explained the reason for expanding the predicate offenses

beyond robbery and burglary thusly:

At [the] hearing a consensus developed in support of an

expansion of the predicate offenses to include serious drug

trafficking offenses under both State and Federal law and

violent felonies, generally. This concept was encompassed in

[the bill] by deleting the specific predicate offenses for robbery

and burglary and adding as predicate offenses [drug

trafficking] . . . and violent felonies under Federal or State law

if the offense has an element the use, attempted use or

threatened use of physical force against a person. This latter

provision would include such felonies involving physical force

against a person such as murder, rape, assault, robbery, etc.

H.Rep. No. 849, 99th Cong., 2d Sess. 3 (1986); United States v. Mathis,

963 F.2d 399, 406-07 (D.C. Cir. 1992).

The Career Offender Guideline is the Sentencing Commission’s

attempt to implement the Congressional directive set forth in 28 U.S.C.

§ 994(h). U.S.S.G. App. C, amend. 798 (Reason for Amendment). Section

994(h) provides in relevant part:

2 “Qualitative” means “having to do with qualities.”

Webster’s New World Dictionary

1161 (2nd college ed. 1970).

The Commission shall assure that the guidelines specify a

sentence to a term of imprisonment at or near the maximum

term authorized for categories of defendants in which the

defendant . . . has been convicted of a felony that is . . . a crime

of violence[.]

28 U.S.C. § 994(h). Thus the Career Offender Guideline was intended to

carry forth into the Sentencing Guidelines what Congress had already

statutorily mandated in the ACCA.

It is worth noting that a number of circuits treat “crime of violence”

(ACCA) and “crime of violence” (U.S.S.G. § 4B1.2) interchangeably. See

United States v. Brown, 765 F.3d 185, 189 n.2 (3d Cir. 2014) (applying

ACCA case law to U.S.S.G. § 4B1.2 because of the substantial similarity

of the two sections); United States v. Morris, 885 F.3d 405, 409 (6th Cir.

2018) (“We have interpreted and applied the definition of ‘crime of

violence’ in § 4B1.2(a) in the same way as the definition of ‘violent felony’

under the Armed Career Criminal Act (ACCA) . . . because ‘both laws

share essentially the same definitions (if not the same titles).’"); United

States v. Brown, 916 F.3d 706, 708 (8th Cir. 2019) ("The

relevant definition of a violent felony under the ACCA and the definition

of a crime of violence under the guidelines are so similar that we

generally consider cases interpreting them interchangeably."); United

States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (“We make no

distinction between the terms ‘violent felony’ [as defined in the ACCA]

and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing

Guidelines][.]”); In re Sealed Case, 548 F.3d 1085, 1089 (D.C. Cir. 2008)

(“[W]e apply the ACCA standard to determine whether an offense

qualifies as a crime of violence under section 4B1.2.”).

It is also worth noting that the Supreme Court has at least

implicitly suggested that “crime of violence” (ACCA) and “crime of

violence” (U.S.S.G. § 4B1.2) are in fact interchangeable. In United States

v. Hopkins, the Third Circuit held that the defendant’s prior

Pennsylvania misdemeanor escape qualified as a crime of violence for

purposes of the career offender guideline. 264 F. App’x 173, 175-76 (3d

Cir. 2008). The Supreme Court remanded the case back to the Third

Circuit for further consideration in light of Chambers v. United States,

555 U.S. 122 (2009). Hopkins v. United States, 555 U.S. 1132 (2009). But

Chambers was not a career offender case, it was an ACCA case.

Chambers, 555 U.S. at 123.

Second Reason for Granting the Writ: The Supreme Court’s

language in Borden would appear to apply to reckless crimes in general,

crimess under the ACCA

ACCA’s

clause..

not just reckless crime

’s elements clause

While Borden specifically addressed a Tennessee assault statute,

the language of the opinion establishes at least the following: (1)

recklessness, unlike intent, does not specifically target another

individual, and (2), the opinion applies to reckless crimes in general, not

just assault under Tennessee law:

The question here is whether a criminal offense can count as

a “violent felony” if it requires only a mens rea of

recklessness—a less culpable mental state than purpose or

knowledge. We hold that a reckless offense cannot so qualify.

Borden, 141 S. Ct. at 1821-22.

The phrase “against another,” when modifying the “use of

force,” demands that the perpetrator direct his action at, or

target, another individual. Reckless conduct is not aimed in

that prescribed manner.

Id. at 1825.

[T]he “against” phrase reveals at whom the conduct is

consciously directed[.]

Id. at 1826.

[T]he Government’s intent-less reading would leave the

“against” phrase in §16(a) without any function[.]

Id. at 1827.

The quintessential violent crimes [internal quotation marks

omitted] . . . involve the intentional use of force.

Id. at 1830.

Extending the elements clause to reckless offenses would thus

do exactly what Leocal decried: “blur the distinction between

the ‘violent’ crimes Congress sought to distinguish for

heightened punishment and [all] other crimes.”

Id. at 1831.

The treatment of reckless offenses as “violent felonies” would

impose large sentencing enhancements on individuals (for

example, reckless drivers) far afield from the “armed career

criminals” ACCA addresses[.]

Id. at 1825.

Offenses with a mens rea of recklessness do not qualify as

violent felonies under ACCA. [this would appear to include

the ACCA’s enumerated clause]

Id. at 1834.

injury--causing robbery

Third Reason for Granting the Writ: Texas injury

generic

robbery..

does not come within the g

eneric definition of robbery

The Armed Career Criminal Act of 1984 defined robbery as follows:

any felony consisting of the taking of the property of another

from the person or presence of another by force of violence, or

by threatening or placing another person in fear that any

person will imminently be subjected to bodily injury.

United States v. Mathis, 963 F.2d 399, 405 (1992) (citing the then

relevant statute: 18 U.S.C. § 1202(c)(8)). “Congress clearly intended to

invoke the common-law definition of ‘robbery.’” Mathis, 963 F.2d at 405.

As noted above, it has never been the intent of Congress to abandon this

definition although robbery is no longer defined in the ACCA.

The Texas robbery statute at issue herein is different. It provides

in relevant part:

A person commits an offense if, in the course of committing

theft . . . he . . . recklessly causes bodily injury to another.

Tex. Penal Code Ann. § 29.02(a)(1). This statute does not require a taking

by force of violence – it only requires that at some point in process, the

defendant recklessly causes bodily injury to another. See e.g. Orlando v.

State, 2009 Tex. App. LEXIS 3948, at *17-18, 20 (Tex. App.—Fort Worth

June 4, 2009, pet. ref’d) (unpublished) (Trial court entitled to find

defendant charged with intentional or knowing robbery guilty of lesser

included offense of robbery with a reckless culpable mental state, given

that his conduct involved only attempting to elbow past loss prevention

officer).

Fourth Reason for Granting the Writ: Allowing recklessly caused

injury robbery to be a career offender predicate will sweep defendants

into career offender status that Congress never intended.

Congress has directed the Sentencing Commission to:

assure that the guidelines specify a sentence to a term of

imprisonment at or near the maximum term authorized for

categories of defendants in which the defendant is eighteen

years old or older and has been convicted of a felon that is . . .

a crime of violence[.]

28 U.S.C. § 994(h)(1)(A). If recklessly caused bodily injury robbery in

Texas constitutes a crime of violence, the individuals convicted in the

following Texas robbery cases are potential career offenders: Hernandez

v. State, 268 S.W.3d 176, 179 (Tex. App.—Corpus Christi 2008, no pet.)

(Defendant pushed loss prevention officer as he walked out of J.C. Penny

store with unpaid-for merchandise); Craver v. State, 2015 Tex. App.

LEXIS 6569 (Tex. App.—Fort Worth, 2015, pet. ref’d)3 (A shoplifter jumps

3 Borden cited this case as an example of reckless conduct that should not come within

the purview of the ACCA. Borden, 141 S.Ct. at 1831.

off a mall’s second floor balcony while fleeing security only to land on a

customer.); Orlando v. State, 2009 Tex. App. LEXIS 3948, at *17-18, 20

(Tex. App.—Fort Worth, 2009, pet. ref’d) (Trial court entitled to find

defendant charged with intentional or knowing robbery guilty of lesser

included offense of robbery with a reckless culpable mental state, given

that his conduct involved only attempting to elbow past loss prevention

officer); Garcia v. State, 2012 Tex. App. LEXIS 5224, at *1-3 (Tex. App.—

Corpus Christi June 28, 2012, no pet.) (Defendant struck loss prevention

officer as he fled from pharmacy after stealing a bag of peanuts);

Smith v. State, 2013 Tex. App. LEXIS 1146, at *7-8 (Tex. App.—Houston

[14th Dist.] 2013, no pet.) (Defendant left store with stolen television,

dropped the television when ordered to stop by loss-prevention employee

and then punched employee when employee attempted to detain him);

Harris v. State, 1999 Tex. App. LEXIS 8845, at *3-5 (Tex. App.—Dallas,

1999, no pet.) (Loss prevention officer suffered a bruise on his arm while

detaining defendant who had stolen a box of hinges).

The conduct punished in these cases no doubt deserved to be

punished but these individuals can hardly be the sort of folks Congress

had in mind in directing the Sentencing Commission to punish “at or near

the maximum term authorized.”

Offenderr Guideline

Fifth Reason for Granting the Writ: The Career Offende

includes attempt; a person cannot recklessly attempt to use force.

The commentary to § 4B1.2 states that “crime of violence” includes

the offense of attempting to commit such offenses. U.S.S.G. § 4B1.2, cmt.

n. 1. Attempt requires “[a]n intent to commit a crime coupled with an act

taken toward committing the offense.” Black's Law Dictionary 127 (6th

ed. 1990). “The mens rea requirement for the crime of attempt is, in its

most basic formulation, [internal quotes omitted] an intent to commit

some other crime. United States v. Sanchez, 667 F.3d 555, 561 (5th Cir.

2012). (Emphasis added.). Because attempt requires intent it is logically

impossible for a person to recklessly “attempt” to use force. See e.g.,

United States v. Resendiz-Ponce, 549 U.S. 102, 106 (2007) (At common

law, attempt required the perpetrator to intend to commit the completed

offense.).

Conclusion

For the foregoing reasons, Petitioner Nava respectfully urges this

Court to grant a writ of certiorari to review the opinion of the United

States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

/s/ John A. Kuchera

JOHN A. KUCHERA

210 N. 6th St.

Waco, Texas 76701

(254) 754-3075

(254) 756-2193 (facsimile)

johnkuchera@210law.com

SBN. 00792137

Attorney for Petitioner

Certificate of Service

This is to certify that a true and correct copy of the above and

foregoing Petition for Writ of Certiorari has this day been mailed by the

U.S. Postal Service, First Class Mail, to the Solicitor General of the

United States, Room 5614, Department of Justice, 10th Street and

Constitution Avenue, N.W. Washington, D.C. 20530.

SIGNED this 28th day of January 2022.

/s/ John A. Kuchera

John A. Kuchera,

Attorney for Petitioner Victor Nava, Jr.

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