Petition for Writ of Certiorari — Jeremy Glenn Powell, Petitioner v. United States

No. ______________

In the

Supreme Court of the United States

___________

Jeremy Glenn Powell,

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

___________

Jessica Graf

Counsel of Record

JESSICA GRAF, PLLC

2614 130th Street

Suite 5 PMB 1030

Lubbock, Texas 79423

(806) 370-8006

jessica@jessicagraflaw.com

QUESTION PRESENTED

In United States v. Taylor, 596 U.S. 845 (2022), this Court held that attempted

Hobbs Act robbery does not qualify as a crime of violence because it lacks as an

element the actual, attempted, or threatened use of physical force against the person

or property of another. Taylor reasoned that a “threat” under the elements clause is

an actual, communicated threat—not conduct that poses some objective threat to

community peace and order. Texas robbery criminalizes the actions of a person who,

in the course of committing theft, “intentionally or knowingly threatens or places

another in fear of imminent bodily injury or death.” Tex. Penal Code § 29.02(a)(2)

(emphasis added). Texas courts have made clear that “plac[ing] another in fear” does

not require an actual, communicated threat. Still, courts have affirmed ACCA

sentences grounded in convictions for Texas threat/fear robbery. The Court’s analysis

in Taylor raises the following question:

Does placing another in fear qualify as a threatened use of force under

the ACCA’s elements clause?

i

PARTIES TO THE PROCEEDING

Petitioner is Jeremy Glenn Powell who was the Defendant-Appellant in the

court below. Respondent, the United States of America, was the Plaintiff-Appellee in

the court below.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................................................................... i

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

TABLE OF CONTENTS ............................................................................................ iii

INDEX TO APPENDICES.......................................................................................... v

TABLE OF AUTHORITIES ...................................................................................... vi

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

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

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

STATUTORY AND RULES PROVISIONS ............................................................... 1

LIST OF PROCEEDINGS BELOW ........................................................................... 2

STATEMENT OF THE CASE .................................................................................... 3

REASONS TO GRANT THIS PETITION .................................................................. 7

I.

This Court should grant the petition because the Third, Fifth, Sixth,

and Eleventh Circuits’ interpretation of a threatened use of force

conflicts with this Court’s decision in United States v. Taylor. ................7

A.

The Circuits are evenly split over whether Taylor’s definition of

“threatened use of force” applies beyond attempt crimes. ................7

B.

The Third, Fifth, Sixth, and Eleventh Circuits’ holdings result

in disparate standards for applying the categorical approach and

risk resurrecting the residual clause. ..............................................10

C.

The Fifth Circuit is wrong—Texas simple robbery doesn’t require

a threatened use of force. ..................................................................14

II.

Alternatively, the Court should hold Petitioner’s case pending the Texas

Court of Criminal Appeals’ ruling in Floyd v. State, which will

conclusively determine whether Texas robbery is indivisible and thus

overbroad. ....................................................................................................17

iii

CONCLUSION .......................................................................................................... 18

iv

INDEX TO APPENDICES

APPENDIX A: Opinion, United States v. Powell, No. 22-10544 (5th Cir.

Aug. 15, 2023) ........................................................................................................ 1a

APPENDIX B: Order Denying Rehearing, United States v. Powell, No.

22019544 (5th Cir. entered Nov. 27, 2023)........................................................... 3a

APPENDIX C: Judgment and Sentence of the United States District

Court for the Northern District of Texas.............................................................. 4a

v

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Alvarado-Linares v. United States,

44 F.4th 1334 (11th Cir. 2022) ............................................................................. 9, 11

Borden v. United States,

593 U.S. 420 (2021) ........................................................................................... 3, 4, 15

Johnson v. United States,

576 U.S. 591 (2015) ................................................................................................... 13

Mwendapeke v. Garland,

87 F.4th 860 (7th Cir. 2023) ....................................................................................... 8

Powell v. United States,

141 S. Ct. 2780 (June 21, 2021).................................................................................. 4

Stokeling v. United States,

139 S. Ct. 544 (2019) ................................................................................................... 3

United States Powell,

78 F.4th 204 (5th Cir. 2023) ........................................................... 6, 9, 11, 13, 14, 17

United States v. Burris,

920 F.3d 942 (5th Cir. 2019) ....................................................................................... 4

United States v. Castleman,

527 U.S. 157 (2014) ................................................................................................... 12

United States v. Davis,

139 S. Ct. 2319 (2019) ......................................................................................... 12, 17

United States v. Days,

No. 22-13305, 2023 WL 6231058 (11th Cir. Sept. 26, 2023) ................................... 10

United States v. Garrett,

24 F.4th 485 (5th Cir. 2022) ........................................................................... 3, 15, 17

United States v. Gordon,

69 F.4th 932 (8th Cir. 2023) ................................................................................... 8, 9

vi

United States v. Jackson,

No. 22-3958, 2023 WL 8847859 (6th Cir. Dec. 21, 2023) .................................. 10, 11

United States v. Linehan,

56 F.4th 693 (9th Cir. 2022) ....................................................................................... 9

United States v. Palomino Garcia,

606 F.3d 1317 (11th Cir. 2010) ................................................................................. 12

United States v. Powell,

785 F. App’x 227 (5th Cir. 2019) ................................................................................ 4

United States v. Powell,

No. 18-11050, 2022 WL 413943 (5th Cir. Feb. 10, 2022) .......................................... 5

United States v. Shields,

63 F.4th 1145 (8th Cir. 2023) ..................................................................................... 9

United States v. Taylor,

596 U.S. 845 (2022) ................................................................... 5, 7, 11, 12, 13, 14, 17

United States v. Williams,

80 F.4th 85 (1st Cir. 2023).......................................................................................... 9

United States v. Zamichieli,

No. 18-3053, 2022 WL 17484324 (3d Cir. Dec. 7, 2022) .................................... 10, 11

State Cases

Burton v. State,

510 S.W.3d 232 (Tex. App.—Fort Worth 2017, no pet.) ...................................... 5, 18

Cooper v. State,

430 S.W.3d 426 (Tex. Crim. App. 2014) ................................................... 5, 15, 17, 18

Craver v. State,

No. 02-14-76-CR, 2015 WL 3918057 (Tex. App.—Fort Worth June 25, 2015,

pet. ref’d) ..................................................................................................................... 3

Floyd v. State,

No. PD-0148-23 (Tex. Crim. App. Aug. 23, 2023) .................................................... 18

vii

Howard v. State,

333 S.W.3d 137 (Tex. Crim. App. 2011) ......................................................... 5, 16, 17

Jackson v. State,

No. 05-15-414-CR, 2016 WL 4010067 (Tex. App.—Dallas July 22, 2016,

no pet.) ....................................................................................................................... 15

Olivas v. State,

203 S.W.3d 341 (Tex. Crim. App. 2006) ................................................................... 15

Rayford v. State,

423 S.W.2d 300 (Tex. Crim. App. 1968) ................................................................... 16

Williams v. State,

827 S.W.2d 614 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d) .......................... 15

Woodard v. State,

294 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) .......................... 18

Federal Statutes

18 U.S.C. § 16 ............................................................................................................... 12

18 U.S.C. § 16(a) ............................................................................................................ 8

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

18 U.S.C. § 924(c) ........................................................................... 5, 7, 8, 11, 12, 13, 17

State Statutes

Tex. Pen. Code § 29.02(a)(2) .......................................................................................... 3

Tex. Penal Code § 29.02(a) ...................................................................................... 4, 15

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jeremy Glenn Powell seeks a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is published at United States v. Jeremy

Glenn Powell, 78 F.4th 203 (5th Cir. 2023). It is reprinted in Appendix A to this

Petition. The district court’s judgement is attached as Appendix C.

JURISDICTION

The panel opinion of the Fifth Circuit was entered on August 15, 2023.

Petitioner timely filed a petition for rehearing en banc, which was denied November

27, 2023. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY AND RULES PROVISIONS

This case involves the interpretation and application of 18 U.S.C.

§ 924(e)(2)(B)(i):

(e)

(2) As used in this subsection—

(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 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;

1

This case also involves Texas Penal Code § 29.02:

Sec. 29.02. ROBBERY. (a) 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.

(b) An offense under this section is a felony of the second degree.

LIST OF PROCEEDINGS BELOW

1. United States v. Jeremy Glenn Powell, 3:17-CR-511, United States District

Court for the Northern District of Texas. Amended judgment and sentence

entered on May 26, 2022. (Appendix C).

2. United States v. Jeremy Glenn Powell, 78 F.4th 203 (5th Cir. 2023), Court of

Appeals for the Fifth Circuit. Conviction and sentence affirmed on August 15,

2023. (Appendix A).

2

STATEMENT OF THE CASE

Texas has an unusually broad statutory definition of “robbery.” In most

jurisdictions, a “robbery” is a prototypically violent crime: taking property from the

person or presence of the victim by means of actual or threatened force. From the

beginning, the Armed Career Criminal Act has always included such true robberies

as predicates. See Stokeling v. United States, 139 S. Ct. 544, 551–52 (2019). But Texas

has chosen to define “robbery” in terms of the harm or fear caused by a thief. As this

Court recently recognized, the Texas definition of “robbery” reaches conduct that “few

would” describe as “violent felonies.” Borden v. United States, 593 U.S. 420, 440

(2021) (discussing Craver v. State, No. 02-14-76-CR, 2015 WL 3918057, *2 (Tex.

App.—Fort Worth June 25, 2015, pet. ref’d)). After Borden, the government conceded

(and the Fifth Circuit held) that a Texas robbery committed by causing bodily injury

is not a violent felony—“robbery can be committed recklessly.” United States v.

Garrett, 24 F.4th 485, 488–89 (5th Cir. 2022).

This case is about the other way to prove robbery in Texas: the defendant

“intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death.” Tex. Pen. Code § 29.02(a)(2). Relevant to this Petition, Petitioner

argued below that a thief can “place[ ] another in fear of imminent bodily injury”

without threatening to use force against the victim, meaning Texas simple robbery is

not a violent felony in any form.

1.

In 2018, Petitioner pleaded guilty to one count of felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). The appropriate sentencing range

3

turned on whether Petitioner has three prior violent felony convictions. If so, he faced

a minimum fifteen-year term of imprisonment under the ACCA. The district court

initially determined the ACCA did not apply and sentenced Petitioner to 120 months

of imprisonment. (ROA.89,166).

2.

The government appealed, arguing that Petitioner qualifies for

sentencing under the ACCA. Relying on United States v. Burris, 920 F.3d 942 (5th

Cir. 2019), the Fifth Circuit vacated Petitioner’s non-ACCA sentence after concluding

that Texas robbery is categorically a violent felony under the ACCA’s elements clause.

United States v. Powell, 785 F. App’x 227 (5th Cir. 2019). Petitioner filed a petition

for a writ of certiorari arguing that Texas robbery is not categorically violent after

this Court’s decision in Borden v. United States, 593 U.S. 420 (2021), because the

statute permits conviction for reckless conduct. This Court granted Petitioner’s

petition, vacated the judgment, and remanded his case to the Fifth Circuit for further

consideration in light of Borden. Powell v. United States, No. 19-7684, 141 S. Ct. 2780,

2781 (June 21, 2021).

3.

On remand from this Court, Petitioner argued that the Texas simple

robbery statute is indivisible and overbroad. The Texas robbery statute defines the

offense as either (a)(1) “intentionally, knowingly, or recklessly caus[ing] bodily injury

to another” or (a)(2) “intentionally or knowingly threaten[ing] or plac[ing] another in

fear of imminent bodily injury or death” in the course of committing a theft. Tex.

Penal Code § 29.02(a). To prove the statute is indivisible, Petitioner pointed to Texas

state court decisions demonstrating that robbery-by-injury and robbery-by-threat are

4

alternative manner and means for committing the single offense of robbery. A jury is

not required to unanimously find that the defendant committed theft by causing

bodily injury or by threat. See, e.g., Burton v. State, 510 S.W.3d 232, 237 (Tex. App.—

Fort Worth 2017, no pet.). He further argued that, even if the robbery statute is

divisible, it does not qualify under the ACCA’s elements clause because a conviction

will stand under subsection (a)(2) when the defendant did not threaten another

person at all. See Howard v. State, 333 S.W.3d 137, 137–38 (Tex. Crim. App. 2011).

The Fifth Circuit held that Texas simple robbery is divisible and robbery-by-fear

qualifies as a violent felony. It remanded Petitioner’s case for resentencing under the

ACCA. United States v. Powell, No. 18-11050, 2022 WL 413943 (5th Cir. Feb. 10,

2022).

4.

On remand, the district court sentenced Petitioner to 189 months of

imprisonment and three years of supervised release. One month later, this Court

issued its decision in United States v. Taylor, 596 U.S. 845 (2022), holding that

attempted Hobbs Act robbery does not qualify as a crime of violence under 18 U.S.C.

§ 924(c) because it does not require an actual, communicated threat. As a result,

Petitioner argued on appeal that Taylor overruled Fifth Circuit precedent holding

that Texas robbery-by-fear qualifies as a violent felony under the ACCA’s elements

clause. The Texas robbery-by-fear statute does not require the defendant to

communicate a threat. Texas courts have unequivocally held that threatening and

placing another in fear are two distinct acts. Cooper v. State, 430 S.W.3d 426, 433−34

& n.47 (Tex. Crim. App. 2014) (Keller, P.J., concurring) (citing the unanimous view

5

of the courts of appeals that “a threat is not actually required to establish robbery”

because the statute allows conviction for placing another in fear).

5.

The Fifth Circuit rejected Petitioner’s argument, holding that Taylor’s

application was limited to “offenses that criminalize attempts that may be

undertaken without a use or threat of force.” United States Powell, 78 F.4th 204, 210

(5th Cir. 2023). Thus, the court refused to apply this Court’s definition of “threat” to

the Texas robbery statute. The Court subsequently denied Petitioner’s motion for

rehearing en banc.

6

REASONS TO GRANT THIS PETITION

I.

This Court should grant the petition because the Third, Fifth,

Sixth, and Eleventh Circuits’ interpretation of a threatened

use of force conflicts with this Court’s decision in United

States v. Taylor.

In United States v. Taylor, this Court held that attempted Hobbs Act robbery

does not qualify as a crime of violence under 18 U.S.C. § 924(c) because it lacks as an

element the use, attempted use, or threatened use of force. 596 U.S. at 851. The

government need only prove an attempted threat to secure conviction—no actual

threat is required. And a “threat” must be communicated—either verbally or

nonverbally. Id. at 855. A “threat” under the elements clause cannot mean “only an

objective, if uncommunicated, threat to community peace and order.” Id.; see also id.

at 856 (noting that had Congress intended “threat” to apply in an abstract way, it

would have said so with language such as “poses” or “represents” a threat). Nothing

in Taylor suggests that this definition of “threat” is unique to § 924(c) or to attempt

crimes. Quite the opposite. See id. at 855 (rejecting the government’s argument that

a threat under § 924(c) “represents an exception to the usual rule”). But at least four

circuits have placed extreme limitations on Taylor, surmising that this Court’s

interpretation of threat is somehow confined to the facts of that case. The result is a

circuit split and disparate applications of a single statutory term.

A. The Circuits are evenly split over whether Taylor’s

definition of “threatened use of force” applies beyond

attempt crimes.

Since this Court handed down Taylor, circuit courts have grappled with

whether Taylor’s definition of threat applies to every analysis under the elements

7

clause or if it is limited to the context in Taylor—attempt crimes. The First, Seventh,

Eighth, and Ninth Circuits have recognized that the term “threat” within 18 U.S.C.

§ 924(c)’s elements clause should have universal meaning across offenses and across

identical elements clauses, such as the elements clause in the ACCA. But the Third,

Fifth, Sixth, and Eleventh Circuits have limited Taylor’s analysis, creating disparate

definitions of “threat” and disparate results around the country.

The Seventh Circuit applied Taylor’s definition of threat when determining

whether Kentucky’s first-degree robbery offense qualifies as an aggravated felony

crime of violence under 18 U.S.C. § 16(a). Mwendapeke v. Garland, 87 F.4th 860, 867

(7th Cir. 2023). Mwendapeke argued that Kentucky first-degree robbery is not a

crime of violence because includes implied threats. Id. Noting that “Taylor separated

communicative threats, which are active and intended to threaten, from abstract or

atmospheric threats, which are based on the nature of the crime itself,” the court held

that Kentucky robbery is a crime of violence because it requires a communicated

threat. Id. While the statute covers both express and implied threats, “those threats

must be communicated by the defendant towards a specific person[.]” Id. at 869–70.

Similarly, the Eighth Circuit held that Missouri second-degree robbery

qualifies as a crime of violence under the Sentencing Guidelines because the statute

requires a communicated threatened use of force. United States v. Gordon, 69 F.4th

932, 934 (8th Cir. 2023). While an implicit threat is sufficient to sustain a conviction,

“an implicit threat is still a form of communication, and Taylor recognized that

threats can be communicated verbally or nonverbally.” Id. at 933; see also United

8

States v. Shields, 63 F.4th 1145, 1147 (8th Cir. 2023) (holding carjacking remains a

crime of violence after Taylor because it requires a communicated threat). The First

and Ninth Circuits have followed suit. See United States v. Williams, 80 F.4th 85, 91–

92 (1st Cir. 2023) (holding pre-Taylor decision that Massachusetts assault with a

deadly weapon is a crime of violence under the Sentencing Guidelines stands because

the offense requires a communicated threat); United States v. Linehan, 56 F.4th 693,

& n.1 (9th Cir. 2022) (noting Taylor more narrowly interpreted “threatened use” of

force “to require a communicative act,” leading the government to concede that

transporting or receiving an explosive under 18 § 844(d) does not “categorically

require an outwardly communicated threat of harm”).

On the other hand, several circuits have effectively ignored Taylor’s definition

of threatened use of force, cabining the opinion to its facts. In Petitioner’s case, the

Fifth Circuit held “Taylor thus expressly addresses offenses that criminalize attempts

that may be undertaken without a use or threat of force,” meaning “Taylor does not

reach the crime at issue here[.]” Powell, 78 F.4th at 209–210. Because Petitioner’s

case did not involve an attempt crime, the Fifth Circuit refused to even consider

whether Texas simple robbery requires a communicated threat. See id.

The Eleventh Circuit similarly limited Taylor. See Alvarado-Linares v. United

States, 44 F.4th 1334, 1346 (11th Cir. 2022) (“We read Taylor to hold that, where a

crime may be committed by the threatened use of force, an attempt to commit that

crime—i.e., an attempt to threaten—falls outside the elements clause.”); see also

United States v. Days, No. 22-13305, 2023 WL 6231058, at *4 (11th Cir. Sept. 26,

9

2023) (holding Florida attempted armed robbery is not a crime of violence because

“just like Hobbs Act attempted robbery, it “requires only the formation of an intent

to take money or property of another and an act toward that goal”). And the Third

and Sixth Circuits have refused to consider Taylor outside of attempt crimes. See

United States v. Zamichieli, No. 18-3053, 2022 WL 17484324, at *3 n.7 (3d Cir. Dec.

7, 2022) (“Taylor has no bearing here because, as set forth herein, Zamichieli’s

conviction involved completed, not attempted, aggravated assault”); United States v.

Jackson, No. 22-3958, 2023 WL 8847859, at *5 (6th Cir. Dec. 21, 2023) (“By contrast,

Jackson was charged with completed carjacking, which requires that he actually used

force or intimidation to accomplish his goal. The Taylor Court’s concern that a

defendant may be convicted of attempted robbery for conduct occurring ‘before he

reaches his robbery victim and before he actually engages in threatening conduct’

therefore does not apply here.”).

This (so far) four-to-four circuit split means that defendants in large swaths of

the country are subject to mandatory minimums and increased penalties even when

their predicate convictions did not require an actual, communicated threat. This

Court’s intervention is necessary to provide uniformity.

B. The Third, Fifth, Sixth, and Eleventh Circuits’ holdings

result in disparate standards for applying the categorical

approach and risk resurrecting the residual clause.

Taylor held that attempted Hobbs Act robbery does not qualify as a crime of

violence under 18 U.S.C. § 924(c) because it lacks as an element the use, attempted

use, or threatened use of force. 596 U.S. at 851. But in reaching that conclusion,

Taylor answered a much bigger question—what constitutes a “threat” under

10

§ 924(c)’s force clause? The answer has broad implications across multiple statutes,

including the ACCA. The Fifth Circuit, however, read Taylor as mere error correction,

concluding that the “limited reach of ACCA jurisprudence” means that Taylor can

have no effect on cases where the offense’s elements do not have “a high degree of

overlap” with the elements of attempted Hobbs Act robbery. Powell, 78 F.4th at 209;

see also Alvarado-Linares, 44 F.4th at 1346; Zamichieli, 2022 WL 17484324, at *3

n.7; Jackson, 2023 WL 8847859, at *5. The Third, Fifth, Sixth, and Eleventh Circuits’

decisions conflict with Taylor and create a host of issues for this Court’s categorical

approach jurisprudence.

In Taylor, the government argued that the Court had misconstrued what

qualifies as a “threatened use” of force, claiming the term encompasses conduct that

“objectively poses a ‘threatened use’ of force even if [the defendant] never

communicates his threat to anyone.” 596 U.S. at 854. The government posited that a

“threat” for purposes of § 924(c) can be “a more objective or abstract risk.” Id. at 855.

And any person “who takes a substantial step toward completing a Hobbs Act robbery

always or categorically poses such a threat.” Id.

In rejecting this argument, this Court provided a specific definition of

“threat”—one not limited to attempted Hobbs Act robbery. A “threat” requires an

intentional act on the part of the defendant, and the Court listed multiple definitions

of the term requiring an intentional communication—whether verbal or nonverbal—

of intent to do harm. Id. at 855 & n.2. Rebuffing the government’s position that

§ 924(c)’s “threat” is unique, the Court reasoned that the statute lists the “use” or

11

“attempted use” of physical force, which requires the government to prove that the

defendant took specific actions against specific people or property. Id. at 856. Reading

“threatened use of force” as requiring a communicated threat “fits with this design.”

Id.

But nothing in Taylor suggests that the Court’s interpretation of “threat” is

limited to attempt crimes or that it would not apply in other contexts, including the

ACCA. Cf. United States v. Castleman, 527 U.S. 157, 164 n.4 (2014) (“Nothing in

today’s opinion casts doubt on these [crime of violence] holdings, because—as we

explain—‘domestic violence’ encompasses a range of force broader than that which

constitutes ‘violence’ simpliciter.”). The categorical approach should work the same

way when applied to the ACCA, § 924(c), and 18 U.S.C. § 16. These statutes, as well

as the crime of violence sentencing guideline, “bear more than a passing resemblance”

to each other. See United States v. Davis, 139 S. Ct. 2319, 2325 (2019); see also United

States v. Palomino Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010) (“Although Taylor

and Shepard were ACCA cases, we have employed their ‘categorical approach’ in

determining whether a prior offense qualifies for an enhancement under the

Guidelines.”). After Taylor, no one could reasonably dispute that § 924(c)’s force

clause requires a communicated threat. But several circuits have apparently

concluded that that § 924(c) is unique and courts need not determine whether an

underlying offense requires a communicated threat when confronted with elements

clauses in other contexts. The Fifth Circuit has done just that—apparently defining

12

“threat” one way in § 924(c) and another way in the ACCA. See Powell, 78 F.4th at

209–210.

And when this Court held that the force clause’s “threat” means a

communicated threat, it pointed out its holding was necessary to avoid constitutional

vagueness questions. Taylor, 596 U.S. at 857. Had Congress intended “threat” to

include abstract or uncommunicated conduct, it had the means to convey that intent.

The statute initially included the residual clause, which was intended to capture

crimes that “by [their] nature, involv[e] a substantial risk that physical force . . . may

be used” against a person or their property. Id. at 856. Clearly that language pointed

to an abstract inquiry about whether a crime “poses or presents a risk (or ‘threat’) of

force.” Id. This Court concluded that applying the government’s definition of “threat”

to the elements clause would in all but name resuscitate the residual clause,

potentially “inviting similar constitutional questions along the way.” Id. at 857.

But that is exactly what the Fifth Circuit has done. By holding that “placing

in fear” constitutes a threat, Powell stands in stark conflict with Taylor and

resurrects the same vagueness predicament this Court did away with almost a decade

ago. See Johnson v. United States, 576 U.S. 591 (2015). After Powell, there is no clear

distinction between the force clause and the unconstitutional residual clause. See

Taylor, 596 U.S. at 857 (“It’s an outcome that would (again) defy our usual rules of

statutory interpretation—this time because we do not lightly assume Congress

adopts two separate clauses in the same law to perform the same work.”).

13

The Fifth Circuit’s conclusion that “the limited reach of ACCA jurisprudence”

means “a court’s interpretation of the ACCA’s applicability to any one crime is

cabined to its text” was wrong. See Powell, 78 F.4th at 209. That error does not just

affect Petitioner. The limited reading of Taylor by four circuits creates a conflict

within categorical approach precedent. This Court should grant certiorari to rectify

this constitutional error.

C. The Fifth Circuit is wrong—Texas simple robbery doesn’t

require a threatened use of force.

Texas simple robbery unquestionably does not require a communicated threat.

But the Fifth Circuit’s constrained and erroneous reading of Taylor prevented it from

even analyzing this question. Because the Fifth Circuit, and other circuits, refuse to

apply the correct definition of threatened use of force, individuals like Petitioner are

subjected to higher sentences in violation of this Court’s holding.

The Texas statute defining simple robbery provides two ways for a person to

commit the offense:

(a) 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 § 29.02(a) (1994). A conviction under subsection (a)(1) no longer

qualifies as a violent felony after Borden, 593 U.S. at 423. But, without analyzing

whether it requires a communicated threat, the Fifth Circuit has held that a

14

conviction under subsection (a)(2) counts for ACCA purposes. See Garrett, 24 F.4th at

491.

Texas courts have made clear that “threaten[ing]” and “plac[ing] another in

fear” of imminent bodily injury or death have two distinct meanings. See, e.g., Olivas

v. State, 203 S.W.3d 341, 346 (Tex. Crim. App. 2006) (“By defining robbery to be theft

plus either threatening or placing another in fear, this statute demonstrates that the

term ‘threaten’ means something other than placing a person ‘in fear of imminent

bodily injury or death.’”); Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref’d) (“The general, passive requirement that another be ‘placed

in fear’ cannot be equated with the specific, active requirement that the actor

‘threaten another with imminent bodily injury.’”); Jackson v. State, No. 05-15-00414CR, 2016 WL 4010067, at *4 (Tex. App.—Dallas July 22, 2016, no pet.) (“This is a

passive element when compared to the dissimilar, active element of threatening

another.”). Placing another in fear does not require a threat at all. See Williams, 827

S.W.2d at 616 (“The factfinder may conclude that an individual perceived fear or was

‘placed in fear,’ in circumstances where no actual threats were conveyed by the

accused”); see also Cooper, 430 S.W.3d at 433−34 & n.47 (Keller, P.J., concurring)

(citing the unanimous view of the courts of appeals that “a threat is not actually

required to establish robbery” because the statute allows conviction for placing

another in fear).

The Texas Court of Criminal Appeals has interpreted the passive “places

another in fear” aspect in very broad terms. In Howard v. State, there was no evidence

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that the defendant interacted with the purported victim, or even knew of his

existence. The victim, a convenience store clerk, hid in a back office and watched the

theft on a video screen. Howard v. State, 333 S.W.3d 137, 137–38 (Tex. Crim. App.

2011). There was “no evidence in the record showing that [Howard] was aware of” the

victim. Id. Yet the court affirmed his conviction because “robbery-by-placing-in-fear

does not require that a defendant know that he actually places someone in fear, or

know whom he actually places in fear.” Id. at 140. This application of Texas robbery

omits any requirement that the defendant threaten another with use of force.

In making this point, the Court of Criminal Appeals discussed Rayford v. State,

423 S.W.2d 300 (Tex. Crim. App. 1968), concerning the nearly identical predecessor

to the current fear-robbery statute. In Rayford, the victim was inside a store when

she saw her husband get shot in the parking lot, but she did not see the shooter.

Howard, 333 S.W.3d at 139. The woman ran outside to aid her husband and put her

purse on the car seat. Id. At some point, unnoticed by the victim, the purse went

missing. Id. The Court upheld the robbery conviction because the victim was placed

in fear of bodily injury. Id. The dissent argued the statute required “actual or

threatened violence,” but the majority rejected that view because the statute’s broad

language encompasses situations where the defendant made no threat. Id.

Texas simple robbery does not require a communicated threat. Still, the Fifth

Circuit maintains that robbery-by-fear qualifies as a violent felony. See Powell, 78

F.4th at 210. That holding flies in the face of this Court’s precedent, which has

unequivocally held that (1) the categorical approach applies uniformly to both § 924(c)

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and the ACCA, and (2) that the term “threat” within the force clause requires a

communicated threat. See Davis, 139 S. Ct. at 2325; Taylor, 596 U.S. at 855. Despite

the well-established uniformity in categorical approach jurisprudence, the Fifth

Circuit wrote off Taylor as cabined to its facts. The result is that, while § 924(c)’s force

clause requires a communicated threat, the ACCA’s does not. The Fifth Circuit was

wrong and this Court should grant certiorari to resolve the issue.

II.

Alternatively, the Court should hold Petitioner’s case

pending the Texas Court of Criminal Appeals’ ruling in Floyd

v. State, which will conclusively determine whether Texas

robbery is indivisible and thus overbroad.

After Borden, there is no question that Texas robbery by causing bodily injury

is not a violent felony. Garrett, 24 F.4th at 489. But the Fifth Circuit held that the

Texas robbery statute is divisible between Texas robbery by causing bodily injury and

robbery by threatening or placing another in fear of bodily injury. Id. It did so despite

conflicting Texas courts of appeals opinions on whether the jury must unanimously

find that the defendant committed injury- or fear/threat-robbery. Compare Cooper,

430 S.W.3d at 434 (Keller, P.J., concurring) (“But this discussion leads me to conclude

that the ‘threat’ and ‘bodily injury’ elements of robbery are simply alternative

methods of committing a robbery.”); id. at 439 (Cochran, J., concurring) (agreeing

with Presiding Judge Keller); Burton v. State, 510 S.W.3d 232, 237 (Tex. App.—Fort

Worth 2017, no pet.) (holding the jury did not have to unanimously find either bodilyinjury- or fear-robbery because “causing bodily injury or threatening the victim are

different methods of committing the same offense.”) with Woodard v. State, 294

S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (noting “the robbery

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statute provides two separate, underlying robbery offenses—robbery causing bodily

injury and robbery by threat”).

The Texas Court of Criminal Appeals will definitively answer the divisibility

question. On August 23, 2023, it granted a petition for discretionary review to resolve

once and for all whether the jury must be unanimous:

Did the court of appeals err in holding that the charge did not have to

include a special jury unanimity instruction requiring that the jury be

unanimous as to whether appellant was guilty of aggravated robbery by

threat or aggravated robbery by bodily injury?

Floyd v. State, PD-0148-23 (Tex. Crim. App. Aug. 23, 2023) (order granting petition

for discretionary review). Floyd is fully briefed and pending before the court. If the

court determines that robbery by threat and robbery by bodily injury are alternative

manner and means of the same offense, Texas robbery is unequivocally not a violent

felony and Petitioner is serving an unlawful mandatory minimum sentence under the

ACCA. If this Court does not grant certiorari, it should hold Petitioner’s case pending

the outcome in Floyd.

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit. In

the alternative, he asks that the Court hold the case pending Floyd v. State, No. PD0148-23 (Tex. Crim. App. 2023).

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Respectfully submitted,

/s/ Jessica Graf

Jessica Graf

Counsel of Record

JESSICA GRAF, PLLC

2614 130th Street

Suite 5 PMB 1030

Lubbock, Texas 79423

(806) 370-8006

jessica@jessicagraflaw.com

February 23, 2024

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