Petition for Writ of Certiorari — Glynzo Clark, Petitioner v. United States

No. _________

IN THE SUPREME COURT OF THE UNITED STATES

GLYNZO CLARK,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

APPENDIX

/s/ Taylor Wills Edwards “T.W.” Brown

Taylor Wills Edwards “T.W.” Brown

Assistant Federal Public Defender

Northern District of Texas

P.O. Box 17743

819 Taylor Street, Room 9A10

Fort Worth, TX 76102

(817) 978-2753

Taylor_W_Brown@fd.org

Texas Bar No. 24087225

INDEX TO APPENDICES

Appendix A Opinion of the Fifth Circuit, United States v. Clark, No. 23-10664, 2024

WL 1375353 (5th Cir. Apr. 1, 2024) (unpublished)

Appendix B Amended Judgment and Sentence of the United States District Court

for the Northern District of Texas, entered June 21, 2023. United

States v. Clark, Dist. Court No. 3:16-CR-109-L.

Appendix C Opinion of the Fifth Circuit, CA No. 17-11079, United States v. Clark,

49 F.4th 889 (5th Cir. 2022)

Appendix D Judgment and Sentence of the United States District Court for the

Northern District of Texas, entered August 24, 2017. United States v.

Clark, Dist. Court No. 3:16-CR-109-L.

APPENDIX A

Case: 23-10664

Document: 60-1

Page: 1

Date Filed: 04/01/2024

United States Court of Appeals

for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit

No. 23-10664

Summary Calendar

____________

FILED

April 1, 2024

Lyle W. Cayce

Clerk

United States of America,

Plaintiff—Appellee,

versus

Glynzo Clark,

Defendant—Appellant.

______________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-109-1

______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: *

Glynzo Clark pleaded guilty of being a felon in possession of a firearm,

and he was sentenced on remand from this court, see United States v. Clark,

49 F.4th 889, 891-92 (5th Cir. 2022), to a 180-month term of imprisonment

and to a three-year period of supervised release. In this appeal, Clark asserts

that his prior burglary conviction, under Tex. Penal Code § 30.02(a),

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10664

Document: 60-1

Page: 2

Date Filed: 04/01/2024

No. 23-10664

was not a violent felony under the Armed Career Criminal Act (ACCA).

Clark concedes that this issue is foreclosed by United States v. Herrold, 941

F.3d 173, 182 (5th Cir. 2019) (en banc). He has raised the issue to preserve it

for further review.

The Government has moved for summary affirmance based on

Herrold, or for an extension of time in which to file a brief. Because Clark’s

argument is foreclosed, summary affirmance is proper.

See Groendyke

Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

The Government’s motion for summary affirmance is GRANTED,

the alternative motion for an extension of time is DENIED, and the district

court’s judgment is AFFIRMED.

2

APPENDIX B

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

Page 1 of 8 PageID 530

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

*AMENDED

JUDGMENT IN A CRIMINAL CASE

UNITED STATES OF AMERICA

v.

Case Number: 3:16-CR-00109-L(1)

USM Number: 54045-177

*James Matthew Wright

GLYNZO CLARK

Defendant’s Attorney

THE DEFENDANT:

☐ pleaded guilty to count(s)

pleaded guilty to count(s) before a U.S.

☒ Magistrate Judge, which was accepted by the

☐

☐

court.

pleaded nolo contendere to count(s) which was

accepted by the court

was found guilty on count(s) after a plea of not

guilty

Count 1 of the Indictment filed March 23, 2016

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

Offense Ended

18:922(g)(1) and 924(e) Convicted Felon In Possession Of A Firearm

Count

08/11/2015

1

The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

☐ The defendant has been found not guilty on count(s)

☐ Count(s) ☐ is ☐ are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

June 16, 2023

Date of Imposition of Judgment

Signature of Judge

Sam A. Lindsay, United States District Judge

Name and Title of Judge

June 21, 2023

Date

*On October 6, 2022, the United States Court of Appeals for the Fifth Circuit found that three of Defendant’s prior

convictions qualify as predicate offenses under ACCA. Therefore, Defendant’s sentence was vacated and remanded

for resentencing. Accordingly, the court enters this Amended Judgment. See page 2 and the Statement of Reasons

for amendments.

23-10664.162

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 2 of 8 PageID 531

Judgment -- Page 2 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

IMPRISONMENT

*Pursuant to the Sentencing Reform Act of 1984, but taking the Guidelines as advisory pursuant to United States v. Booker, and considering the factors

set forth in 18 U.S.C. Section 3553(a), the defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a

total term of: One hundred eighty (180) months as to Count 1. Pursuant to USSG § 5G1.3(d), the imposed sentence shall run partially

concurrently with the undischarged terms of imprisonment in Dallas Criminal Court 4 Case Nos. F-1518268 (related), F-1560296

(unrelated), and F-1670315 (unrelated), to the extent that it does not exceed 2 years. Any remaining time on the undischarged terms

shall run consecutively to the instant offense.

☒ The court makes the following recommendations to the Bureau of Prisons:

The court recommends that Defendant be allowed to serve his sentence at FCI, Pollock, in Pollock, Louisiana, if he is

eligible.

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐

a.m.

☐

p.m.

on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

23-10664.163

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 3 of 8 PageID 532

Judgment -- Page 3 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of : Three (3) years.

MANDATORY CONDITIONS

1.

You must not commit another federal, state or local crime.

2.

You must not unlawfully possess a controlled substance.

3.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of

release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court's determination that you

4.

pose a low risk of future substance abuse. (check if applicable)

☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

5. ☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et

seq.)

as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you

reside, work,are a student, or were convicted of a qualifying offense. (check if applicable)

6.

☐ You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the

attached page.

23-10664.164

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 4 of 8 PageID 533

Judgment -- Page 4 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from

the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer

to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that

was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or

tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a

written copy of this judgment containing these conditions. I understand additional information regarding these

conditions is available at www.txnp.uscourts.gov.

Defendant’s Signature

Date

23-10664.165

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 5 of 8 PageID 534

Judgment -- Page 5 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program (inpatient and/or outpatient) approved by the U.S. Probation

Office for treatment of narcotic, drug, or alcohol dependency, which will include testing for the

detection of substance use or abuse. The defendant shall abstain from the use of excessive alcohol

and/or all other intoxicants during and after completion of treatment. The defendant shall contribute to

the costs of services rendered (copayment) at a rate of at least $10 per month.

The defendant shall participate in mental health treatment services as directed by the probation

officer until successfully discharged. These services may include medications prescribed by a licensed

physician. The defendant shall contribute to the costs of services rendered (copayment) at a rate of at

least $10 per month.

The defendant shall report in person at least once every week any time he is unemployed and furnish

proof or evidence he is making a good-faith effort to secure a legitimate, verifiable, full-time job.

Once the defendant secures employment, he shall furnish proof of earnings each month and report to

his probation officer as directed.

23-10664.166

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 6 of 8 PageID 535

Judgment -- Page 6 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

JVTA Assessment*

Fine

TOTALS

$100.00

$.00

$.00

Restitution

$.00

☐ The determination of restitution is deferred until



An Amended Judgment in a Criminal Case

(AO245C) will be entered after such determination.

The defendant must make restitution (including community restitution) to the following payees in

the amount listed below.

The defendant must make restitution (including community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18 U.S.C.

§ 3664(i), all nonfederal victims must be paid before the United States is paid.

☐ Restitution amount ordered pursuant to plea agreement $

☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

☐

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☐ the interest requirement is waived for the

☐ fine

☐ restitution

☐ the interest requirement for the

☐ fine

☐ restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

23-10664.167

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 7 of 8 PageID 536

Judgment -- Page 7 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

☐ Lump sum payments of $

due immediately, balance due

☐ not later than

☐ in accordance

, or

☐

C,

☐

D,

B

☐ Payment to begin immediately (may be combined with

C

☐ Payment in equal

or

D

☐

E, or

☐

F below; or

☐

C,

☐

D, or

☐

(e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

over a period of

(e.g., 30 or 60 days) after the date of this judgment;

☐ Payment in equal 20 (e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

imprisonment to a term of supervision; or

F below); or

over a period of

(e.g., 30 or 60 days) after release from

E

☐ Payment during the term of supervised release will commence within

F

☒ Special instructions regarding the payment of criminal monetary penalties:

(e.g., 30 or 60 days) after release

from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that

time; or

It is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1 which

shall be due immediately. Said special assessment shall be paid to the Clerk, U.S. District Court.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

☐ Joint and Several

See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and

Several Amount, and corresponding payee, if appropriate.

☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same

loss that gave rise to defendant's restitution obligation.

☐ The defendant shall pay the cost of prosecution.

☐ The defendant shall pay the following court cost(s):

☐ The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

23-10664.168

Case 3:16-cr-00109-L Document 99 Filed 06/21/23

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Page 8 of 8 PageID 537

Judgment -- Page 8 of 8

GLYNZO CLARK

3:16-CR-00109-L(1)

ADDITIONAL FORFEITED PROPERTY

Pursuant to 18 U.S.C. §924(d) and 28 U.S.C. §2461(c), the following property is forfeited to the United States

of America:

any firearm involved in the commission of the offense, including a Colt, 38 caliber revolver,

model Detective Special, bearing serial number M37031 and any ammunition recovered

with the weapon (“the property”).

23-10664.169

APPENDIX C

Case: 17-11079

Document: 00516498763 Page: 1 Date Filed: 10/06/2022

Case 3:16-cr-00109-L Document 70 Filed 10/06/22 Page 1 of 7 PageID 361

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

September 14, 2022

Lyle W. Cayce

Clerk

No. 17-11079

United States of America,

Plaintiff—Appellant,

versus

Glnyzo Clark,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:16-CR-109-1

Before Jones, Ho, and Wilson, Circuit Judges.

Per Curiam:

Glnyzo Clark pleaded guilty to being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1). This offense typically carries a

maximum penalty of ten years’ incarceration. The presentence report

(PSR), however, recommended sentencing Clark pursuant to the Armed

Criminal Career Act (ACCA), which would increase Clark’s penalty to a

minimum of fifteen years’ incarceration. The district court declined to do

so—finding that Clark’s prior convictions fail to satisfy the requirements of

the ACCA. We disagree. We thus vacate Clark’s sentence and remand for

resentencing.

23-10664.133

Case: 17-11079

Document: 00516498763 Page: 2 Date Filed: 10/06/2022

Case 3:16-cr-00109-L Document 70 Filed 10/06/22 Page 2 of 7 PageID 362

No. 17-11079

I.

A defendant may be sentenced under the ACCA if he or she has at

least three prior convictions that each qualify as a “violent felony” or

“serious drug offense.” 18 U.S.C. § 924(e)(1). In relevant part, a “serious

drug offense” is one “involving manufacturing, distributing, or possessing

with intent to manufacture or distribute, a controlled substance . . . for which

a maximum term of imprisonment of ten years or more is prescribed by law.”

Id. § 924(e)(2)(A)(ii). And a “violent felony” is “any crime punishable by

imprisonment for a term exceeding one year,” that “has as an element the

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

another.” Id. § 924(e)(2)(B)–(B)(i).

Four of Clark’s prior convictions are relevant on appeal: (1)

aggravated assault by threat of bodily injury (case no. F-0720695); (2)

aggravated assault by causing bodily injury (case no. F-0624885); (3) burglary

of a habitation (case No. F-0673371); and (4) possession with intent to

distribute a controlled substance (case no. F-0673218).

“This court reviews whether a prior conviction qualifies as an ACCA

predicate de novo.” United States v. Prentice, 956 F.3d 295, 298 (5th Cir.),

cert. denied, 141 S. Ct. 920 (2020).

We consider each prior conviction in turn.

II.

Aggravated Assault.

We consider two of Clark’s prior convictions for aggravated assault

and find that one of them qualifies as a predicate under the ACCA.

Let’s begin with aggravated assault by threat of bodily injury. Under

Texas Penal Code § 22.01(a)(2), this offense can only be committed

intentionally or knowingly. We have held that intentionally or knowingly

2

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Case 3:16-cr-00109-L Document 70 Filed 10/06/22 Page 3 of 7 PageID 363

No. 17-11079

threatening another with imminent bodily injury is a “crime of violence”

under 18 U.S.C. § 16(a). See, e.g., United States v. Torres, 923 F.3d 420, 426

(5th Cir. 2019). And “we construe the elements clauses of section 16 and the

ACCA congruently.” United States v. Griffin, 946 F.3d 759, 762 n.2 (5th Cir.

2020). Accordingly, Clark’s conviction for aggravated assault by threat of

bodily injury necessarily constitutes a violent felony under the ACCA. See

United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015) (finding no plain

error where the district court found the same).

But aggravated assault by bodily injury does not qualify. This offense

can be committed with a mens rea of recklessness. See Tex. Penal Code

§ 22.01(a)(1). And as the Supreme Court held in Borden v. United States,

“[o]ffenses with a mens rea of recklessness do not qualify as violent felonies

under [the] ACCA.” 141 S. Ct. 1817, 1834 (2021).

So for Clark to be sentenced under the ACCA, his convictions for

burglary and possession with intent to distribute must both qualify as

predicates. 18 U.S.C. § 924(e)(1).

III.

Burglary of a Habitation.

The ACCA’s definition of “violent felony” explicitly includes generic

burglary. 18 U.S.C. § 924(e)(2)(B)(ii). But Texas Penal Code § 30.02(a)

contains three subsections by which a defendant can commit burglary in

Texas. At the time of Clark’s sentencing, our court had held that only a

violation of § 30.02(a)(1) constitutes generic burglary under the ACCA. See

United States v. Herrold (Herrold I), 813 F.3d 595, 598–99 (5th Cir.), vacated,

137 S. Ct. 310 (2016). Because Clark’s charging documents were ambiguous

as to which provision he was convicted under, the government conceded, and

the district court held, that his burglary conviction could not serve as an

ACCA predicate.

3

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No. 17-11079

Then several years later, during the pendency of this appeal, our court

vacated Herrold I. We determined that § 30.02(a) constitutes generic

burglary in its entirety, and thus any § 30.02(a) conviction qualifies as a

predicate under the ACCA. United States v. Herrold (Herrold II), 941 F.3d

173, 182 (5th Cir. 2019).

Clark nonetheless maintains that the government should be precluded

from relying on Herrold II. He argues the government waived or invited any

error in the district court related to his burglary conviction by conceding at

the time of sentencing that the conviction did not qualify as a predicate

offense. This argument fails.

Invited error is a variety of waiver that “generally evince[s] an intent

by the speaker to convince the district court to do something that it would

not otherwise have done.” United States v. Lerma, 877 F.3d 628, 632 (5th

Cir. 2017) (cleaned up). The government’s statement amounted to no more

than an acknowledgement of the state of the law as it existed at the time. It

was neither designed to, nor had the effect of, “convinc[ing] the district court

to do something” it would not have already been dutybound to do. Id.

And because we are not bound by the government’s concession, see,

e.g., United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th Cir. 2003), our

holding in Herrold II resolves this issue: Clark’s prior conviction for burglary

of a habitation qualifies as a predicate under the ACCA.

IV.

Possession with Intent to Distribute a Controlled Substance.

Clark was convicted under Texas Health and Safety Code §

481.112(a), which maintains that “a person commits an offense if [he]

knowingly manufactures, delivers, or possesses with intent to deliver a

controlled substance.”

4

23-10664.136

Case: 17-11079

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No. 17-11079

In United States v. Vickers, we held that the § 481.112 offense

constitutes a “serious drug offense” under the ACCA. 540 F.3d 356, 366

(5th Cir. 2008). The district court claims that ruling was abrogated by our

subsequent holding that a § 481.112 conviction “does not qualify as a

controlled substance offense under the [Sentencing] Guidelines.” United

States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented, 854 F.3d 284

(5th Cir. 2017).

But that is not so. For one thing, absent an intervening change in the

law, “one panel of our court may not overturn another panel’s decision.”

Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). For another, the

definition of a “controlled substance offense” under the Sentencing

Guidelines—as addressed in Tanksley—differs from that of a “serious drug

offense” under the ACCA—as addressed in Vickers and at issue here. Our

court acknowledged this critical distinction in Vickers itself, explaining that

“an offense could be found to satisfy the ACCA requirements, while the

same offense would not be sufficient to trigger an enhancement under the

Sentencing Guidelines.” Vickers, 540 F.3d at 366 n.3. And, what’s more,

our court has expressly reaffirmed the holding in Vickers following the

Tanksley decision. See Prentice, 956 F.3d at 299–300.

Clark also argues that, even if Tanksley did not effectively overrule

Vickers, a recent Supreme Court decision did. In Shular v. United States, the

Supreme Court defined “involving” in the ACCA to mean “necessarily

requir[ing].” 140 S. Ct. 779, 785 (2020). See also Prentice, 956 F.3d at 299

(“We may assume that Shular defined ‘involving’ in the ACCA to mean

‘necessarily requiring.’”).

This is indeed a far narrower definition than the “exceedingly broad”

one applied by our court in Vickers. 540 F.3d at 365 (defining “involving” to

mean “related to or connected with”) (quotations omitted). But our court

5

23-10664.137

Case: 17-11079

Document: 00516498763 Page: 6 Date Filed: 10/06/2022

Case 3:16-cr-00109-L Document 70 Filed 10/06/22 Page 6 of 7 PageID 366

No. 17-11079

has expressly rejected Clark’s argument that Shular consequently abrogated

Vickers’s holding. See Prentice, 956 F.3d at 300. In Prentice, we described how

Shular did more than narrow the definition of “involving”—it also

“broadens the understanding of ‘a serious drug offense’ by focusing on the

underlying conduct.” Id. So while “[t]he precise reasoning of Vickers, i.e., its

interpretation of ‘involving,’ differs from that of Shular and seems at odds

with Shular’s focus on the underlying conduct charged in state offenses. . . .

there is no doubt that the ACCA sentence upheld in Vickers would also be

affirmed under Shular.” Id.

Clark attempts to distinguish Prentice on the ground that he challenges

the delivery prong of the Texas statute, whereas the Prentice court analyzed

the possession-with-intent prong. He claims that the least culpable way to

violate the delivery prong is by making a fraudulent offer to sell a controlled

substance. In support, he points to some of our reasoning in Vickers: “The

intentional offer to sell a controlled substance is the crime; the accused need

not have any drugs to sell or even intend ever to obtain the drugs he is

purporting to sell.” Vickers, 540 F.3d at 365.

6

23-10664.138

Case: 17-11079

Document: 00516498763 Page: 7 Date Filed: 10/06/2022

Case 3:16-cr-00109-L Document 70 Filed 10/06/22 Page 7 of 7 PageID 367

No. 17-11079

But our court recently considered, and rejected, Clark’s theory of

delivery whereby § 481.112 could potentially be violated by a fraudulent offer

to sell. Ochoa-Salgado v. Garland, 5 F.4th 615, 620–21 (5th Cir. 2021).

“Although Texas courts have sometimes used inconsistent language about

the mens rea necessary to violate § 481.112, Texas appellate courts

consistently conclude that, if a person offers to sell, with no intent to sell

narcotics, but instead the intent to defraud the buyer of his money, that

conduct is not a delivery of controlled substance by offer to sell.” Id. (cleaned

up). Instead, as we explained, Ҥ 481.112 requires an intent to sell, which

mirrors the requisite mens rea under the [Controlled Substances Act], namely

intent to distribute.” Id. at 621.

Applying our holdings in Vickers and Ochoa-Salgado to the present

case, we find that Clark’s prior conviction for possession with intent to

distribute also qualifies as a predicate offense under the ACCA.

***

Because we find that three of Clark’s prior convictions qualify as

predicate offenses under the ACCA, we vacate Clark’s sentence and remand

for resentencing.

7

23-10664.139

APPENDIX D

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 1 of 8 PageID 244

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

v.

Case Number: 3:16-CR-00109-L(1)

USM Number: 54045-177

Mark R. Danielson

GLNYZO CLARK

Defendant’s Attorney

THE DEFENDANT:

☐ pleaded guilty to count(s)

pleaded guilty to count(s) before a U.S.

☒ Magistrate Judge, which was accepted by the

☐

☐

court.

pleaded nolo contendere to count(s) which was

accepted by the court

was found guilty on count(s) after a plea of not

guilty

Count 1 of the Indictment filed March 23, 2016

The defendant is adjudicated guilty of these offenses:

Title & Section / Nature of Offense

Offense Ended

Count

18:922(g)(1) and 924(a)(2) Convicted Felon In Possession Of A Firearm

08/11/2015

1

The defendant is sentenced as provided in pages 2 through 8 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984.

☐ The defendant has been found not guilty on count(s)

☐ Count(s) ☐ is ☐ are dismissed on the motion of the United States

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If

ordered to pay restitution, the defendant must notify the court and United States attorney of material changes in economic

circumstances.

August 24, 2017

Date of Imposition of Judgment

Signature of Judge

Sam A. Lindsay, United States District Judge

Name and Title of Judge

August 24, 2017

Date

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 2 of 8 PageID 245

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 2 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

IMPRISONMENT

Pursuant to the Sentencing Reform Act of 1984, but taking the Guidelines as advisory pursuant to United States v. Booker, and considering the

factors set forth in 18 U.S.C. Section 3553(a), the defendant is hereby committed to the custody of the United States Bureau of Prisons to be

imprisoned for a total term of: One hundred twenty (120) months as to Count 1. This sentence shall run concurrently with any

sentence imposed in Case No. F-1518268, pending in Dallas County Criminal Court 4 in Dallas, Texas. This sentence shall run

consecutively to any sentences imposed in Case Nos. MB1461706, MB1559748, and MB1559747, pending in Dallas County

Court of Criminal Appeals 2 in Dallas, Texas; and consecutively to any sentences imposed in Case Nos. F-1518267, F-1518268,

MB1546255, F01560296, and F-1670315, pending in the Dallas County Criminal Court 4, in Dallas, Texas.

☒ The court makes the following recommendations to the Bureau of Prisons:

The court recommends that Defendant be allowed to serve his sentence at FCI, Pollock, in Pollock, Louisiana, if he is

eligible.

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐

☐

a.m.

p.m.

on

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 3 of 8 PageID 246

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 3 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of : Three (3) years.

MANDATORY CONDITIONS

1.

You must not commit another federal, state or local crime.

2.

You must not unlawfully possess a controlled substance.

3.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of

release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

5. ☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et

4.

seq.)

as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you

reside, work,are a student, or were convicted of a qualifying offense. (check if applicable)

6.

☐ You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the

attached page.

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 4 of 8 PageID 247

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 4 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from

the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer

to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that

was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or

tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a

written copy of this judgment containing these conditions. I understand additional information regarding these

conditions is available at www.txnp.uscourts.gov.

Defendant’s Signature

Date

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 5 of 8 PageID 248

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 5 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program (inpatient and/or outpatient) approved by the U.S. Probation

Office for treatment of narcotic, drug, or alcohol dependency, which will include testing for the

detection of substance use or abuse. The defendant shall abstain from the use of alcohol and/or all

other intoxicants during and after completion of treatment. The defendant shall contribute to the costs

of services rendered (copayment) at a rate of at least $10 per month.

The defendant shall participate in mental health treatment services as directed by the probation

officer until successfully discharged. These services may include medications prescribed by a licensed

physician. The defendant shall contribute to the costs of services rendered (copayment) at a rate of at

least $10 per month.

The defendant shall report in person at least once every week any time he is unemployed and furnish

proof or evidence he is making a good-faith effort to secure a legitimate, verifiable, full-time job.

Once the defendant secures employment, he shall furnish proof of earnings each month and report to

his probation officer as directed.

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 6 of 8 PageID 249

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 6 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

JVTA Assessment*

Fine

$100.00

$.00

$.00

TOTALS

Restitution

$.00

☐ The determination of restitution is deferred until

An Amended Judgment in a Criminal Case

(AO245C) will be entered after such determination.

The defendant must make restitution (including community restitution) to the following payees in

the amount listed below.

The defendant must make restitution (including community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment. However, pursuant to 18 U.S.C.

§ 3664(i), all nonfederal victims must be paid before the United States is paid.

☐ Restitution amount ordered pursuant to plea agreement $

☐ The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

☐

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☐ the interest requirement is waived for the

☐ fine

☐ restitution

☐ the interest requirement for the

☐ fine

☐ restitution is modified as follows:

* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22

** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after

September 13, 1994, but before April 23, 1996.

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 7 of 8 PageID 250

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 7 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

☐ Lump sum payments of $

due immediately, balance due

☐ not later than

☐ in accordance

, or

☐

C,

☐

D,

B

☐ Payment to begin immediately (may be combined with

C

☐ Payment in equal

☐

E, or

☐

F below; or

☐

C,

☐

D, or

☐

(e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

F below); or

over a period of

(e.g., 30 or 60 days) after the date of this judgment;

or

D

☐ Payment in equal 20 (e.g., weekly, monthly, quarterly) installments of $

(e.g., months or years), to commence

imprisonment to a term of supervision; or

over a period of

(e.g., 30 or 60 days) after release from

E

☐ Payment during the term of supervised release will commence within

F

☒ Special instructions regarding the payment of criminal monetary penalties:

(e.g., 30 or 60 days) after release

from imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that

time; or

It is ordered that the Defendant shall pay to the United States a special assessment of $100.00 for Count 1 which

shall be due immediately. Said special assessment shall be paid to the Clerk, U.S. District Court.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

☐ Joint and Several

See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint and

Several Amount, and corresponding payee, if appropriate.

☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same

loss that gave rise to defendant's restitution obligation.

☐ The defendant shall pay the cost of prosecution.

☐ The defendant shall pay the following court cost(s):

☐ The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court costs.

Case 3:16-cr-00109-L Document 57 Filed 08/24/17

Page 8 of 8 PageID 251

AO 245B (Rev. TXN 11/16) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

Judgment -- Page 8 of 8

GLNYZO CLARK

3:16-CR-00109-L(1)

ADDITIONAL FORFEITED PROPERTY

Pursuant to 18 U.S.C. §924(d) and 28 U.S.C. §2461(c), the following property is forfeited to the United States

of America:

any firearm involved in the commission of the offense, including a Colt, 38 caliber revolver,

model Detective Special, bearing serial number M37031 and any ammunition recovered

with the weapon (“the property”).