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United States v. Burris

United States Court of Appeals, Fifth Circuit

April 10, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
LATROY LEON BURRIS, Defendant-Appellant

          Appeal from the United States District Court for the Northern District of Texas

          Before WIENER, GRAVES, and HO, Circuit Judges.

          WIENER, Circuit Judge.

         Defendant-Appellant Latroy Leon Burris pleaded guilty to being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA), which provides for an increased sentence if the defendant has been convicted of three prior violent felonies. Burris contends that he was not eligible for the increase because his prior Texas conviction for robbery was not a violent felony.

         By a divided vote, we previously held that Texas robbery does not have as an element the "use, attempted use, or threatened use of physical force."[1] The government moved for rehearing en banc, and we withdrew our opinion pending the en banc court's decision in United States v. Reyes-Contreras.[2] After the en banc court decided Reyes-Contreras, the Supreme Court decided Stokeling v. United States, which held that Florida robbery qualified as a crime of violence under the ACCA.[3] The parties filed supplemental briefs addressing Reyes-Contreras and Stokeling.

         Those cases apply to Burris's sentence and govern the outcome of this case. We hold that robbery under Texas Penal Code § 29.02(a) requires the "use, attempted use, or threatened use of physical force" and affirm Burris's increased sentence under the ACCA.

         I. Facts and Proceedings

         In July 2016, Burris pleaded guilty to (1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and (2) possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1) & (b)(1)(C).[4] The presentence investigation report (PSR) determined that Burris was an armed career criminal under 18 U.S.C. § 924(e), viz., the ACCA. A defendant is an armed career criminal if he (1) is convicted of violating § 922(g), as Burris was by virtue of his guilty plea, and (2) has three prior convictions for violent felonies or serious drug offenses.[5] If a defendant meets these criteria, he is subject to a minimum sentence of fifteen years imprisonment.[6]

         The PSR states that Burris had three prior convictions qualifying him for the ACCA: (1) a 1993 Texas conviction for robbery, (2) a 1993 Texas conviction for aggravated robbery, and (3) a 2012 Texas conviction for manufacturing/delivering a controlled substance. When he pleaded guilty, Burris disputed that he qualified for the enhanced penalties of the ACCA. After the probation office issued the PSR, Burris objected, insisting that his convictions for robbery and aggravated robbery do not qualify for the ACCA.[7]The district court adopted the findings of the PSR, concluding that Burris's prior convictions for robbery and aggravated robbery qualified him for the ACCA's enhancement. The court then sentenced him to 188 months in custody, a sentence at the low end of the applicable guidelines range.

         Burris timely appealed, challenging the district court's ruling that his Texas convictions for robbery and aggravated robbery were "violent felonies." After Burris filed his opening brief, another panel of this court held that the version of aggravated robbery for which Burris was convicted is a violent felony under the ACCA.[8] Burris conceded that his aggravated robbery conviction qualified as a violent felony, [9] so this appeal concerns only whether Burris's conviction for simple robbery also qualifies as a violent felony.

         The panel majority previously held that Burris's conviction for simple robbery was not a violent felony under the ACCA.[10] The government moved for rehearing en banc, and we withdrew our opinion pending the en banc court's decision in Reyes-Contreras.[11] After that, the Supreme Court decided Stokeling v. United States, which considered a similar issue to the one presented here. The parties filed supplemental briefing addressing those cases.

         II. Standard of Review

         The government acknowledges that Burris preserved his objection in the district court. We therefore review de novo the district court's conclusion that his simple robbery conviction was a violent felony under the ACCA.[12]

         III. Analysis

         A. The Relevant Statutes

         The ACCA defines a "violent felony," in relevant part, as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.][13]

         Before the Supreme Court's decision in Samuel Johnson v. United States, [14] Texas robbery was considered a violent felony under the second part of clause (ii), known as the "residual clause," because it "involve[d] conduct that presents a serious potential risk of physical injury to another."[15] In Samuel Johnson, however, the Court struck down the residual clause as unconstitutionally vague.[16] Consequently, robbery is a violent felony under the ACCA if it has as an element the use, attempted use, or threatened use of "physical force."

         B. Divisibility

         Texas robbery is defined in § 29.02(a) of the Texas Penal Code as follows:

A person commits an offense if, in the course of committing theft . . . 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.[17]

         We refer to the alternatives delineated by subparts (1) and (2) as "robbery-by-injury" and "robbery-by-threat." This court has never addressed whether § 29.02(a) is divisible or indivisible[18]-that is, whether robbery-by-injury and robbery-by-threat are (a) different crimes or (b) a single crime that can be committed by two different means.[19]

         If § 29.02(a) is indivisible, we "focus solely on whether the elements of the crime of conviction" include the use of force.[20] This focus on the elements of the offense of conviction is known as the "categorical approach."[21] Under that approach, if the least culpable conduct covered by either robbery-by-injury or robbery-by-threat requires the use, attempted use, or threatened use of physical force, Texas robbery is a violent felony.[22]

         To determine what a state statute covers, "federal courts look to, and are constrained by, state courts' interpretations of state law."[23] "[T]he focus on the minimum contact criminalized by the state statute is not an invitation to apply 'legal imagination' to the state offense; there must be a 'realistic probability, not a theoretical possibility, that the state would apply its statute to conduct that falls outside [the use-of-force clause.]'"[24] "Without supporting state case law, interpreting a state statute's text alone is simply not enough to establish the necessary 'realistic probability.'"[25]

         On the other hand, if § 29.02(a) is divisible, we use the "'modified categorical approach,' and look to a 'limited class of documents,' such as the indictment, jury instructions, and plea agreements and colloquies to determine the crime of conviction."[26] "Those sources may be used not to locate facts supporting a [crime-of-violence] enhancement, but only 'as a tool to identify the elements of the crime of conviction.'"[27] Under that approach, we first determine the specific subsection under which Burris was convicted and then consider whether that offense "has as an element the use . . . of . . . force."[28]

         Burris's conviction documents do not specify whether he was convicted of robbery-by-injury or robbery-by-threat. His indictment states that he caused injury, but it charges him with aggravated robbery. We cannot look to the indictment to narrow the subsection of conviction if it indicts Burris for a crime other than the one to which he pleaded guilty.[29]

         Reyes-Contreras confirmed, however, that we may "make reasonable use of the indictment, together with the judgment, to identify the crime of conviction."[30] The judgment and indictment state that Burris caused "serious bodily injury." Based on those documents, it appears that Burris pleaded guilty to robbery-by-injury under § 29.02(a)(1) rather than robbery-by-threat under 29.02(a)(2).

         We need not decide whether § 29.02(a) is divisible here, however, because our conclusion under either approach would be the same. As we explain in greater detail below, we hold that § 29.02(a)(1), robbery-by-injury, categorically requires the use of physical force. Section 29.02(a)(2), robbery-by-threat, requires "threaten[ing] or plac[ing] another in fear of" imminent bodily injury or death. Causing bodily injury requires the use of physical force, so threatening or placing another in fear of imminent bodily injury likewise requires the "attempted use, or threatened use of physical force."[31]

         C. Robbery-by-Injury

         We first address robbery-by-injury. Section 29.02(a)(1) requires that a defendant "cause[] bodily injury." Texas defines "bodily injury" as "physical pain, illness, or any impairment of physical condition."[32] We must determine whether "caus[ing] bodily injury" under Texas law requires the use of physical force under federal law. This involves two issues: (1) the relationship between causing bodily injury and the use of physical force and (2) the degree of force necessary to qualify as a violent felony under the ACCA's elements clause. The en banc court resolved the first issue in Reyes-Contreras, and the Supreme Court resolved the second issue in Stokeling.

         1. Causing Bodily Injury Versus Using Force

         a. Prior Precedent

         In United States v. Vargas-Duran, the en banc court considered whether the Texas crime of "intoxication assault," which requires the defendant to have "cause[d] serious bodily injury to another," was a crime of violence under United States Sentencing Guideline ("U.S.S.G.") § 2L1.2, which "has as an element the use, attempted use, or threatened use of physical force against the person of another."[33] The en banc court held that it did not, for two reasons. First, the court explained, the Texas statute does not require that the defendant have the state of mind needed to "use" force: "[T]he fact that the statute requires that serious bodily injury result . . . does not mean that the statute requires that the defendant have used the force that caused the injury."[34] Second, the court added that "[t]here is also a difference between a defendant's causation of an injury and the defendant's use of force."[35]

         We reiterated this difference in United States v. Villegas-Hernandez, when we considered whether the Texas crime of assault-requiring that one "intentionally, knowingly, or recklessly cause[] bodily injury" or threaten to do so-was an "aggravated felony" under U.S.S.G. § 2L1.2(b)(1)(C).[36] Aggravated felonies also must have an element of "use, attempted use, or threatened use of physical force."[37] We held that Texas's assault offense did not have use or threatened use of physical force as an element.[38] The panel approvingly cited Vargas-Duran's explanation that "[t]here is . . . a difference between a defendant's causation of an injury and the defendant's use of force."[39] The panel listed examples of acts that could cause bodily injury without physical force: "making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim."[40]

         b. The Supreme Court and the En Banc Court Weigh In

         Under Vargas-Duran, a person could "cause bodily injury" per Texas law without using "physical force" per federal law. But subsequent Supreme Court precedent and the en banc court's overruling of Vargas-Duran in Reyes-Contreras foreclose that conclusion.

         In Curtis Johnson v. United States, the Supreme Court interpreted the phrase "physical force" within the ACCA. The Court noted that the common-law definition of "force" could be "satisfied by even the slightest offensive touching."[41] But the Court held that the common-law definition of force did not apply to the ACCA; in the ACCA context, "the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person."[42]

         In United States v. Castleman, the Supreme Court considered the term "physical force" in the context of 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by anyone convicted of a "misdemeanor crime of domestic violence" (MCDV). A MCDV is defined using identical language to the ACCA: It "has, as an element, the use or attempted use of physical force."[43] But the Court distinguished "physical force" in the MCDV context from "physical force" in the ACCA. The Court held that in the context of a MCDV, "physical force" is defined as "the common-law meaning of 'force, '" which can be satisfied by mere offensive touching.[44] In making this distinction, the Court relied on the differences between the two contexts in which the term "physical force" arises: "[W]hereas the word 'violent' or 'violence' standing alone 'connotes a substantial degree of force,' that is not true of 'domestic violence.' 'Domestic violence' is not merely a type of 'violence'; it is a term of art encompassing acts that one might not characterize as 'violent' in a nondomestic context."[45]

         Applying this common-law definition of "physical force," the Court held that the defendant's conviction for "caus[ing] bodily injury" to the mother of his child categorically qualified as a MCDV.[46] In doing so, the Court explained that "the knowing or intentional causation of bodily injury necessarily involves the use of physical force" in the MCDV context.[47] The Court added that "the common-law concept of 'force' encompasses even its indirect application," such as poisoning a victim.[48] The Court expressly declined to reach the question "[w]hether or not the causation of bodily injury necessarily entails violent force."[49] Neither did the Court decide the question whether minor injuries, such as a "cut, abrasion, [or] bruise . . . . necessitate violent force, under [Curtis] Johnson's definition of that phrase."[50]

         The Court next decided Voisine v. United States, which concerned the meaning of "use" rather than "physical force." Like Castleman, Voisine arose in the context of an MCDV.[51] Specifically, the Court considered whether a person could recklessly "use" physical force-in the context of an MCDV-or if such "use" required knowledge or intent.[52] The Court held that there was no requirement of intent or knowledge: A person can "use" force while acting recklessly.[53] The Court added that use of force does require a "volitional" action; by contrast, involuntary or accidental movements are not uses of force in the context of a MCDV.[54]

         In Reyes-Contreras, the en banc court resolved five questions that arose after Castleman and Voisine: (1) whether Castleman's holding was limited to MCDVs, as this court had previously held, [55] (2) whether this court's previous distinction between "direct" and "indirect" force[56] was compatible with Castleman, (3) whether this court's previous requirement of "bodily contact" to qualify as a crime-of-violence[57] survived Castleman (4) whether this court's precedent holding that "the 'use' of force required that [a] defendant intentionally avail himself of that force"[58] survived Voisine, and (5) whether this court's previous precedent that imposed a distinction between "causing injury" and the "use of force"[59] survived Castleman and Voisine.

         The en banc court answered "no" to all of these. It held that "Castleman is not limited to cases of domestic violence" and that "for purposes of identifying a conviction as a [crime-of-violence], there is no valid distinction between direct and indirect force."[60] The court also overruled the "requirement of bodily contact" for a crime-of-violence.[61] Importantly for our purposes today, the en banc court held that "the 'use of force' does not require intent because it can include knowing or reckless conduct"[62] and that "Castleman and Voisine d[id] away with Vargas-Duran's unnatural separation of causing injury from the use of force."[63]

         In his supplemental brief to this panel, Burris contends that Reyes-Contreras did not actually hold that reckless causation of injury was sufficient to satisfy the elements clause. Burris maintains that Reyes-Contreras's overruling of Vargas-Duran is dicta. Vargas-Duran held that that the "use" of force requires an intentional action; Reyes-Contreras overruled that holding, explaining "the 'use of force' does not require intent because it can include knowing or reckless conduct."[64] According to Burris, the Missouri manslaughter statute at issue in Reyes-Contreras criminalized only knowing and intentional causation of death, so the Reyes-Contreras court's conclusion that reckless conduct constitutes the "use" of force did not affect the statute at issue in the case.

         We disagree with Burris. To the extent the en banc court's conclusion in Reyes-Contreras did not address an issue central to that case, the court cabined its reasoning by explaining that the Supreme Court in Voisine had already "abrogated the reasoning in Vargas-Duran" on that issue. Notably, although Voisine was an MCDV case and not an ACCA elements-clause case, Burris does not challenge Reyes-Contreras's application of Voisine's reasoning to the ACCA's similarly worded violent-felony provision, [65] or this court's earlier precedent applying Voisine outside the MCDV context.[66] So, even assuming Reyes-Contreras's "disavow[al]" of Vargas-Duran was dicta, Voisine, a subsequent Supreme Court decision, binds this court and confirms that the use of force under the ACCA includes reckless conduct.[67]

         The combination of (1) Castleman's holding that "the knowing or intentional causation of bodily injury necessarily involves the use of physical force, "[68] (2) Reyes-Contreras's holding that Castleman is not limited to the MCDV context, [69] (3) Voisine's holding that reckless conduct constitutes the use of physical force, [70] and (4) Reyes-Contreras's holding that Castleman and Voisine eliminated the "unnatural separation of causing injury from the use of force"[71] governs the outcome here. Section 29.02(a)(1) prohibits the reckless causation of bodily injury. Castleman, Voisine, and Reyes-Contreras confirm that reckless conduct constitutes the "use" of physical force under the ACCA, and that the distinction between causing an injury and the use of force is no longer valid. Causing bodily injury under § 29.02(a)(1) necessarily requires the use of physical force.

         c. Retroactivity

         Faced with this change in precedent, Burris contends that Voisine and Reyes-Contreras should not apply retroactively. He insists that those decisions amount to a substantial change in this court's precedent and a "significant departure" from the prior legal regime that relaxed the government's burden. We hold that retroactive application of those decisions to Burris's sentence does not violate due process.

         The Ex Post Facto Clause does not apply to the judiciary.[72] "Strict application of ex post facto principles in that context would unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system. The common law . . . presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles."[73] In Bouie v. City of Columbia, for example, the Court held that a South Carolina Supreme Court's interpretation of a statute could not apply retroactively because the construction was (1) "clearly at variance with the statutory language"; (2) had "not the slightest support in prior South Carolina decisions"; (3) was "inconsistent with the law of other States"; (4) was anticipated by "neither the South Carolina Legislature nor the South Carolina police"; and (5) applied to conduct that could not "be deemed improper or immoral."[74] Under those circumstances, the Court held that a retroactive application of a judicial construction of a criminal statute violates the Due Process Clause if that decision is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue."[75]

         This court recently held in United States v. Gomez Gomez that even though Reyes-Contreras significantly changed this court's ACCA jurisprudence, retroactive application of that decision does not violate due process.[76] We explained that Reyes-Contreras "merely reconciled our circuit precedents with the Supreme Court's decision in Castleman" and "aligned our circuit with the precedents of other circuits."[77] "In short, Reyes-Contreras was neither unexpected nor indefensible."[78]

         The same is true of Voisine. That case resolved a circuit split over whether a misdemeanor conviction for reckless assault required the use of "physical force" in the MCDV context.[79] Voisine's holding that reckless conduct qualifies as the "use" of force focused on § 922(g)(9)'s text, including (1) the definition of a "misdemeanor crime of violence" that "contain[ed] no exclusion for convictions based on reckless behavior"[80] and (2) the "ordinary meaning" of the word "use," as the Court had interpreted that term in Castleman.[81]

         Voisine is consistent with the ACCA's statutory language and lacks the problems identified in Bouie. We agree with the other circuits that have applied Voisine retroactively[82] and note that the Voisine Court itself applied its holding to the petitioner-defendants there.[83] We conclude that Voisine was neither "unexpected" nor "indefensible" and may apply retroactively.[84]

         2. Degree of Force

         Although Reyes-Contreras resolved several ACCA issues, it did not address the degree of force necessary to qualify as a violent felony under the ACCA's elements clause.[85] Burris contends that causing a minor injury, such as a bruise, meets the Texas definition of causing "bodily injury," but does not require physical force under federal law. The Supreme Court's recent decision in Stokeling-which held that "'physical force,' or 'force capable of causing physical pain or injury,' includes the amount of force necessary to overcome a victim's resistance"[86]-forecloses Burris's contention. Force necessary to overcome a victim's resistance entails less force than is necessary to cause bodily injury under Texas law.

         a. "Physical Force" Under the ACCA

         Curtis Johnson defined "physical force" under the ACCA as "violent force-that is, force capable of causing physical pain or injury to another person."[87] After Curtis Johnson, the Court left open the question whether minor injuries, such as a "cut, abrasion, [or] bruise . . . . necessitate violent force, under [Curtis] Johnson's definition of that phrase."[88] The Supreme Court recently answered that question in Stokeling.

         In Stokeling, the Court held that the ACCA's elements clause "encompasses robbery offenses that require the criminal to overcome the victim's resistance."[89] The Court explained Congress's 1986 amendment of that statute, in which Congress removed "robbery" as an enumerated predicate offense and added the elements clause. By retaining the term "force," Congress intended that the "'force' required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause."[90] The Court explained in Stokeling that "it would be anomalous to read 'force' as excluding the quintessential ACCA-predicate crime of robbery, despite the amendment's retention of the term 'force' and its stated intent to expand the number of qualifying offenses."[91]

         The Court went on to explain that under Curtis Johnson's definition of "physical force," the force used need not be "substantial" and the "altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself 'capable of causing physical pain or injury.'"[92] Focusing on Johnson's use of the word "capable" of causing physical pain or injury, Stokeling held that the "physical force" under the ACCA does not require "any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality."[93]

         The petitioner in Stokeling contended-as Burris does here-that, under Castleman, the level of force must "be 'severe,' 'extreme,' or 'vehement.'" The Court expressly rejected that argument. "These adjectives cannot bear the weight Stokeling would place on them. They merely supported Johnson's actual holding: that common-law battery does not require 'force capable of causing physical pain or injury.' . . . Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA's scope."[94]

         Instead, the Court adopted Justice Scalia's Castleman concurrence, in which he concluded that minor uses of force and minor forms of injury qualified as "physical force" under Curtis Johnson:

Stokeling next contends that Castleman held that minor uses of force do not constitute "violent force," but he misreads that opinion. In Castleman, the Court noted that for purposes of a statute focused on domestic-violence misdemeanors, crimes involving relatively "minor uses of force" that might not "constitute 'violence' in the generic sense" could nevertheless qualify as predicate offenses. The Court thus had no need to decide more generally whether, under [Curtis] Johnson, conduct that leads to relatively minor forms of injury-such as "a cut, abrasion, [or] bruise"- "necessitate[s]" the use of "violent force." Only Justice Scalia's separate opinion addressed that question, and he concluded that force as small as "hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling," satisfied Johnson's definition. He reasoned that "[n]one of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury." This understanding of "physical force" is consistent with our holding today that ...

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