United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 15, 2005
March 1, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-11131
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICE P. MONTGOMERY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Maurice Montgomery appeals his enhanced sentence, which the
district court imposed based on a finding of three prior violent
felony convictions. Persuaded that his prior conviction under a
Texas retaliation statute does not qualify as a violent felony we
vacate the sentence and remand.
I
Appellant pleaded guilty to possession of a firearm by a felon
in violation of 18 U.S.C. § 922(g)(1).1 At sentencing, he objected
1
The second count in the indictment, possession of the firearm with an
obliterated serial number in violation of 18 U.S.C. § 922(k), was apparently
dropped as part of the plea agreement.
to being classified as an armed career criminal, which requires
three prior “violent felonies” for sentence enhancement purposes as
per 18 U.S.C. § 924(e). He maintained that one of his prior three
convictions, a Texas conviction for retaliation, did not qualify as
a violent felony.2 The district court overruled this objection
and, based on the presentence report, sentenced Appellant to 15
years in prison, which is the minimum prescribed by § 924(e), as
implemented by U.S.S.G. § 4B1.4.
Appellant’s retaliation conviction stemmed from an incident on
August 6, 1993, when an officer on routine patrol observed
Appellant walking with two other men. As the officer drove past
them, Appellant yelled, “Why the fuck are you sweating us?” The
officer got out of his car, saying he wanted to talk to the three
men, but they continued walking. When the officer moved in front
of them, they tried to walk past him. One of the three said, “We
are just walking down the street. You can’t stop me mother
fucker.” The officer confronted Appellant, eventually led him away
from the group toward his patrol car, and handcuffed him. The
officer instructed the other two men to stand still and keep their
hands in view, but they refused to obey. One approached the
officer with his hands in his pockets and the other ran from the
scene.
2
According to the presentence report, Appellant’s three prior convictions
were for retaliation, burglary of a habitation, and injury to a child. Appellant
does not contest that the latter two are violent felonies.
2
The man who had fled returned to the scene accompanied by his
mother, and identified himself as Rodney Montgomery, Appellant’s
brother. Both Rodney and his mother were loud and causing a
disturbance. Rodney became involved in an altercation with one
officer and was restrained. The officers decided to release
Appellant and told him that he was not going to be arrested. As
Appellant began to walk off, he began to yell and said, “I’m not
going to put up with this shit any more. I’m going to put a hole
in you mother fuckers next time I get a chance.” Appellant was
then arrested for threatening the officers and later charged. The
Texas indictment stated that
[Appellant] did intentionally and knowingly
threaten [to murder four individuals] in
retaliation for and on account of [their]
service [as Plano police officers], and said
threat was made by [Appellant] verbally
stating to [them]: “I’m not going to put up
with this shit anymore. I’m going to put a
hole in you mother fuckers next time I get a
chance.”
In the instant appeal, Appellant renews his objection to the
district court’s sentence for the § 922(g)(1) violation (felon-in-
possession-of-a-firearm), arguing that his prior conviction for
retaliation is not a “violent felony” so as to warrant an enhanced
sentence under § 924(e). Appellant also asserts that his Sixth
Amendment rights were violated by the application of the § 924(e)
sentence enhancement.
II
3
A
We review a district court’s interpretation of a sentence
enhancement provision de novo.3 The district court enhanced
Montgomery’s sentence under 18 U.S.C. § 924, the Armed Career
Criminal Act (“ACCA”), as implemented by U.S.S.G. § 4B1.4.4 The
ACCA imposes a mandatory minimum fifteen-year sentence on a
defendant who has been convicted under the felon-in-possession-of-
a-firearm statute5 and who has three prior violent felony
convictions.6 A “violent felony” is any 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.7
In Taylor v. United States,8 the Supreme Court addressed
whether a prior conviction qualified as one of the enumerated
offenses--specifically burglary--in Subsection (ii). The Court
3
United States v. Hinojosa, 349 F.3d 200, 204 (5th Cir. 2003); United
States v. Williams, 120 F.3d 575, 578 (5th Cir. 1997).
4
See U.S.S.G. § 4B1.4 cmt.; Hinojosa, 349 F.3d at 204.
5
18 U.S.C. § 922(g).
6
18 U.S.C. § 924(e)(1).
7
18 U.S.C. § 924(e)(2)(B).
8
495 U.S. 575 (1990)
4
held that Ҥ 924(e) mandates a formal categorical approach, looking
only to the statutory definitions of the prior offenses, and not to
the particular facts underlying those convictions.”9 In other
words, “the only plausible interpretation of § 924(e)(2)(B)(ii) is
that, like the rest of the enhancement statute, it generally
requires the trial court to look only to the fact of conviction and
the statutory definition of the prior offense.”10 However, this so-
called “categorical approach” is subject to exception: it “may
permit the sentencing court to go beyond the mere fact of
conviction in a narrow range of cases where a jury was actually
required to find all the elements of [the prior violent felony in
question].”11 In reaching its conclusion, the Taylor court noted
that “Congress intended the sentencing court to look only to the
fact that the defendant had been convicted of crimes falling within
certain categories, and not to the facts underlying the prior
convictions.”12
Appellant contends that his prior retaliation conviction does
not qualify under either Subsection (I) or Subsection (ii) of the
violent felony definition. We agree.
B
9
Id. at 600.
10
Id. at 602 (emphasis added).
11
Id.
12
Id. at 600.
5
We first examine whether Appellant’s retaliation conviction
qualifies under Subsection (I) (the “Force Clause”) of the violent
felony definition, which requires that the crime have “as an
element the use, attempted use, or threatened use of physical force
against the person of another.”13
Guided by our recent decision in United States v. Calderon-
Pena,14 we apply the categorical approach of Taylor and look solely
to the statutory elements to ascertain whether a retaliation
conviction satisfies the Force Clause. We allow for an examination
of the indictment only to “pare down” the statute--that is, to
decide under which branch of a disjunctive statute a defendant’s
conviction falls.15 In Calderon-Pena, we deployed this formal
categorical approach in confronting a sentencing guideline that
contains “element of” and “force” language identical to that in the
Force Clause.16 The same analysis controls here.
The Texas criminal retaliation statute provides, in relevant
part, that “[a] person commits an offense if he intentionally or
13
18 U.S.C. § 924(e)(2)(B)(i).
14
383 F.3d 254 (5th Cir. 2004) (en banc).
15
Id. at 258-59.
16
Calderon-Pena, 383 F.3d at 256 (5th Cir. 2004) (applying U.S.S.G.
§ 2L1.2 and determining whether prior conviction “‘has as an element the use,
attempted use, or threatened use of physical force against the person of
another’” (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001)); see also U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). On a number of recent occasions we have held that a
particular prior conviction does not constitute a “crime of violence” under §
2L1.2. See, e.g., United States v. Valenzuela, 389 F.3d 1305 (5th Cir. 2004);
United States v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2004); United States
v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc).
6
knowingly harms or threatens to harm another by an unlawful act
. . . in retaliation for or on account of the service or status of
another as a . . . public servant.”17 In turn, “harm” is defined
as “anything reasonably regarded as loss, disadvantage, or injury,
including harm to another person in whose welfare the person
affected is interested.”18
Referring to this same retaliation statute, we recently held
in United States v. Acuna-Cuadros, applying Calderon-Pena’s
categorical approach, that it “plainly does not have as an element
the use, attempted use, or threatened use of physical force.”19 As
we explained, “[n]o portion of the statute itself requires physical
force. Although, as a matter of simple logic, the offense can
involve the application of physical force, it need not involve
physical force to maintain a conviction.”20 In light of Acuna-
Cuadros, the Force Clause will not support the enhancement in this
case. We turn next to Subsection (ii).
C
Under Subsection (ii), a “violent felony” is “any crime . . .
that is [one of several enumerated offenses] or otherwise involves
conduct that presents a serious potential risk of physical injury
17
TEX. PENAL CODE ANN. § 36.06(a)(1)(A).
18
TEX. PENAL CODE ANN. § 1.07(25).
19
385 F.3d 875, 878-79 (5th Cir. 2004) (applying U.S.S.G. § 2L1.2).
20
Id.
7
to another.”21 Because the enumerated offenses are not at issue
here, we proceed to the residual clause (or “Otherwise Clause”).
1
We take a formal categorical approach to the Otherwise Clause,
as we now explain. Taylor itself addressed the enumerated offenses
in Subsection (ii) and there is no reason that it should not apply
--viewed through the Calderon-Pena filter--with equal force to the
Otherwise Clause, which is located at the end of the enumerated
list. In Taylor, the Court reasoned that, read in the context of
Subsection (I), which “defines ‘violent felony’ as any crime
punishable by imprisonment for more than a year that ‘has as an
element’--not any crime that, in a particular case, involves--the
use or threat of force,” Subsection (ii)’s reference to burglary
“most likely refers to the elements of the statute of conviction,
not to the facts of each defendant’s conduct.”22 Given that, as per
Taylor (and Calderon-Pena), we can only look to the pared down
statute under which the prior conviction occurred to determine if
it “is burglary,” we similarly can only look to the statute to
determine if it “involves conduct that presents a serious potential
risk of physical injury to another.”23
Our case law interpreting the Otherwise Clause supports this
21
18 U.S.C. § 924(e)(2)(B)(ii).
22
Taylor, 495 U.S. at 600-01.
23
18 U.S.C. § 924(e)(2)(B)(ii).
8
approach. In United States v. Martinez, for example, we held that
a prior conviction for attempted burglary did not qualify under the
Otherwise Clause and, therefore, was not a violent felony.24 We
reasoned as follows:
[U]nder Texas law a defendant may be convicted
of attempted burglary without having entered
any building, and without being in the
vicinity of any building. Indeed, a defendant
who had taken steps which “tended to effect
the commission of a burglary” could be
arrested far from the target of the burglary
and still be convicted of the attempt. Thus,
at least as defined by Texas law, the fact
that the defendant did not complete the
burglary offense does indeed reduce the
potential risk of injury to others.
Accordingly, we hold that a conviction under
Texas law for attempted burglary does not
qualify as a sentence-enhancing “violent
felony” under the language of
25
§ 924(e)(2)(B)(ii).
In other words, it was possible to commit the prior offense without
employing conduct that entailed a serious potential risk of
physical injury.
Later, in United States v. Williams, we held that a criminal
statute prohibiting the inducement of a minor to commit sodomy
satisfies the Otherwise Clause given that any violation of the
statute entails a serious potential risk of physical harm.26 In
24
United States v. Martinez, 954 F.2d 1050 (5th Cir. 1992).
25
Id. at 1054 (footnote omitted) (emphasis added).
26
120 F.3d 575, 579 (5th Cir. 1997) (“Unlike attempted burglary [as in
Martinez], which may be committed miles from the targeted premises and the
persons in it, the former 1925 TEX. CRIM. STAT. 535(b) requires interaction with
the victim . . . . In light of the intended victim’s youth, there is a
significant likelihood that the perpetrator would succeed in enticing the victim
into a situation that would produce violence.”).
9
reaching this conclusion, we noted that “we generally do not look
to the specific facts underlying the conviction” and, instead, we
looked directly to the language of the statute:
[A]s proscribed by former 1925 TEX. CRIM. STAT.
535(b), “for any person with lascivious intent
to entice, allure, persuade, or invite” a
child under age 14 for the purpose of
committing sodomy, or the other listed acts,
is a scenario that, as described in 18 U.S.C.
§ 924(e)(2)(B)(ii), “involves conduct that
presents a serious potential risk of physical
injury to another”.27
Although ultimately we held that the Texas offense qualified under
§ 924(e), our analysis was rooted in whether conduct involved in
the crime, as set forth in the statute, necessarily presents a risk
of physical harm.
All of this does not, of course, mean that the statute must
have as an element either physical injury or the risk of physical
injury, but rather that violation of the statute necessarily
entails a serious potential risk of physical injury. Indeed, there
is no “element of” language in the residual clause and, as we
pointed out in an analogous context, “[a]ccepting [the] argument
that we must confine ourselves to the statutory elements of the
crime would render the residual clause a nullity.”28 Furthermore,
27
Id.
28
United States v. Claiborne, 132 F.3d 253, 255 (5th Cir. 1998). In
Claiborne, we applied the residual clause of the “crime of violence” definition
in § 4B1.2, which contains language identical to the Otherwise Clause of
§ 924(e). Id. at 254; see also United States v. Serna, 309 F.3d 859, 864 (5th
Cir. 2002) (“The ACCA employs identical language to define ‘violent felony’ as
the sentencing guidelines use to define ‘crime of violence.’ Compare 18 U.S.C.
§ 924(e)(1) with U.S.S.G. § 4B1.2(a).”); cf. United States v. Charles, 301 F.3d
309, 311-12 (5th Cir. 2002) (en banc) (prohibiting conflation of separate
10
physical injury need not have, in fact, resulted.29 This
underscores the fact that it is not the conduct in the particular
case, but the statute under which the defendant was convicted that
is the touchstone for the potential risk inquiry.
2
Applying the formal categorical approach to determine whether
a prior conviction qualifies as a violent felony under the
Otherwise Clause we now turn to the Texas statute at issue. As
previously mentioned, the Texas criminal retaliation statute is
triggered when someone “intentionally or knowingly harms or
threatens to harm another by an unlawful act . . . in retaliation
for or on account of the service or status of another as a . . .
public servant.”30 It is clear that there are numerous ways that
this statute can be violated without posing a significant risk of
physical harm. For example, the statute could be violated by
someone threatening a police officer with financial or reputational
harm. This is in contrast to the statute in Williams criminalizing
inducement of a minor to commit sodomy, any violation of which
involved acts that necessarily entailed a significant risk of
definitions of “crime of violence”--as contained in U.S.S.G. § 4B1.2(a) and 18
U.S.C. §16--given divergent underlying language).
29
See Williams, 120 F.3d at 578 (“This risk to another is inherent in
Williams’ prior felony conviction, regardless of the fact that he never actually
had to have contact with the child, or even be alone with the child, to violate
the state criminal statute.”).
30
TEX. PENAL CODE ANN. § 36.06(a)(1)(A).
11
physical harm.31
Here, the mere act of a verbal threat--while sufficient for a
retaliation conviction--does not necessarily carry with it a risk
of physical harm. The Government essentially argues that the act
of threatening poses such a risk in the same way that yelling
“fire” in a crowded theatre would. This argument is unavailing
because, as mentioned, the retaliatory action threatened against
the police officer need not have included a physical-risk-producing
act--merely an unlawful act (e.g., embezzlement would do). Thus,
there will not necessarily be a knee-jerk reaction to such threats.
III
Appellant’s prior conviction for retaliation does not qualify
as a violent felony under § 924(e) and the sentence must be
vacated. In light of this conclusion, we need not address the
impact of the Supreme Court’s recent Booker decision32 on
Appellant’s alternative argument that the sentence enhancement
violated his Sixth Amendment rights.
The sentence imposed by the district court is VACATED and the
case is REMANDED for resentencing.
31
See Williams, 120 F.3d at 579. In Williams, we placed some weight on
the heightened risk that necessarily resulted given that, under the statute at
issue, the victim was by definition a child. Id. at 578-79. This factor is
obviously not present here.
32
United States v. Booker, 125 S.Ct. 738 (2005).
12
United States v. Montgomery
Combined Opinion