United States v. Juan Castillo-Rivera

Case: 15-10615 Document: 00513934076 Page: 1 Date Filed: 03/30/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-10615
United States Court of Appeals
Fifth Circuit

FILED
UNITED STATES OF AMERICA, March 30, 2017
Lyle W. Cayce
Plaintiff - Appellee Clerk

v.

JUAN CASTILLO-RIVERA,

Defendant - Appellant

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

Before STEWART, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES,
SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK,
HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge, joined by JOLLY,
HIGGINBOTHAM, JONES, OWEN, ELROD, and HAYNES, Circuit Judges,
in full; SOUTHWICK, Circuit Judge, joining in all except for footnote 1;
HIGGINSON, Circuit Judge, joining in Part III.B only:

Juan Castillo-Rivera was convicted of illegal reentry under 8 U.S.C. §
1326. He received an 8-level enhancement of his sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C), for being “previously . . . deported . . . after conviction for an
aggravated felony.” The notes to Section 2L1.2 explain that, “[f]or purposes of
subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in 8
U.S.C. 1101(a)(43).” That section in turn lists numerous subsets of offenses
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No. 15-10615
that qualify as aggravated felonies, including any offense “described in” 18
U.S.C. § 922(g)(1),” which is the federal felon in possession of a firearm statute.
The Probation Office ultimately concluded in its Pre-Sentence Report
(“PSR”) that the 8-level enhancement applied because Castillo-Rivera had been
previously deported in 2013 after a state court conviction for Unlawful
Possession of a Firearm by a Felon in violation of Texas Penal Code (“TPC”) §
46.04. The district court accepted the PSR, and sentenced Castillo-Rivera
pursuant to the 8-level enhancement. Castillo-Rivera appeals, arguing that
TPC § 46.04 is substantively broader than 18 U.S.C. § 922(g)(1), and is
therefore not an “aggravated felony” under the sentencing guidelines. We
AFFIRM.
I
Castillo-Rivera was born in Mexico, and came to the United States
shortly after his birth. In 2009, he pleaded guilty in Texas state court to
Unlawful Possession of Heroin, a state jail felony. Later that year, he again
pleaded guilty in Texas state court, this time to Unauthorized Use of a Vehicle,
also a state jail felony. In 2013, he pleaded guilty a third time in Texas state
court, to Unlawful Possession of a Firearm by a Felon. He was deported to
Mexico shortly thereafter. He reentered the United States illegally and was
again arrested in Texas in 2014. This last arrest led to the illegal reentry
charge and conviction at issue here.
After Castillo-Rivera pleaded guilty to illegal reentry, the Probation
Office produced a PSR. The PSR noted that, because “the defendant was
deported from the United States subsequent to a conviction for a felony offense,
4 levels are added pursuant to USSG § 2L1.2(b)(1)(D).” The government filed
a written objection, arguing that Castillo-Rivera’s conviction for Unlawful
Possession of a Firearm by a Felon under TPC § 46.04 was “described in” 18
U.S.C. § 922(g)(1), therefore “constitute[d] an aggravated felony” under 8
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U.S.C. § 1101(a)(43), and thus triggered the “8-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(C).” The Probation Office agreed, and issued an
addendum modifying the PSR to impose an 8-level enhancement instead of the
4-level enhancement it initially recommended. Castillo-Rivera’s guidelines
range increased from 24–30 months to 33–41 months as a result of the larger
enhancement. Castillo-Rivera filed a written objection to the addendum. The
district court overruled his objection, accepted the PSR with the addendum,
and sentenced Castillo-Rivera to 34 months in prison.
Castillo-Rivera appealed his sentence to a panel of this court, arguing
that TPC § 46.04 is a nongeneric statute because it is substantively broader
than 18 U.S.C. § 922(g)(1), and therefore cannot be considered an aggravated
felony for purposes of the sentencing guidelines. The panel concluded that this
argument was foreclosed by a previous panel’s holding, explaining that, “[i]n
Nieto Hernandez v. Holder, we squarely held that ‘TPC § 46.04(a) fits within 8
U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony’” United States v.
Castillo-Rivera, 836 F.3d 464, 464 (5th Cir. 2016) (quoting Nieto Hernandez v.
Holder, 592 F.3d 681, 686 (5th Cir. 2009)). Because it concluded that it was
bound by previous precedent, the panel did not address the merits of Castillo-
Rivera’s statutory arguments. We granted rehearing en banc in order to do so. 1
II
Section 2L1.2(b)(1)(C) of the Sentencing Guidelines states that, when a
defendant is convicted of illegal reentry, “[i]f the defendant previously was
deported, or unlawfully remained in the United States, after . . . a conviction
for an aggravated felony,” the defendant’s Base Offense Level should “increase

1Upon granting Castillo-Rivera’s petition for rehearing en banc, we requested briefing
regarding the proper application of this circuit’s rule of orderliness in cases where a party
made an explicit concession before a prior panel that is dispositive in a future case. We do
not reach this issue here, as it is not necessary to our disposition of Castillo-Rivera’s case on
the merits.
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by 8 levels.” The commentary on this section explains that “[f]or purposes of
subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term
in [8 U.S.C. § 1101(a)(43)].” U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43)
provides a lengthy list of subsets of crimes that qualify as aggravated felonies.
One such subset includes any “offense described in . . . section 922(g)(1) . . .
relating to firearms offenses.” 8 U.S.C. 1101(a)(43)(E)(ii). 18 U.S.C. § 922(g)(1),
the federal felon-in-possession statute, reads,
[i]t shall be unlawful for any person . . . who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition . . . which
has been shipped or transported in interstate of foreign commerce.

Castillo-Rivera was convicted under TPC § 46.04, which is the Texas felon-in-
possession counterpart to 18 U.S.C. § 922(g)(1). The Texas statute reads in
relevant part, “[a] person who has been convicted of a felony commits an offense
if he possesses a firearm.” Tex. Penal Code Ann. § 46.04(a) (West 2009).
To determine whether Castillo-Rivera’s conviction under TPC §46.04
qualifies as an “aggravated felony,” we apply a “categorical approach, under
which we refer only to the statutory definition of the crime for which the
[defendant] was convicted . . . and ask whether that legislatively-defined
offense necessarily fits within [8 U.S.C. § 1101(a)(43)’s] definition of an
aggravated felony.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006).
Here, that means asking whether the offense outlined in TPC § 46.04 is
“described in” 18 U.S.C. § 922(g)(1). Castillo-Rivera argues that it is not,
because the definitions of “felony” and “firearm” for purposes of the Texas
statute are broader than their federal counterparts. We address each of these
arguments in turn.
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III
A. Felony
For purposes of TPC § 46.04, “felony” is defined as any offense that “(1)
is designated by a law of this state as a felony; (2) contains all the elements of
an offense designated by a law of this state as a felony; or (3) is punishable by
confinement for one year or more in a penitentiary.” Tex. Penal Code
Ann. § 46.04(f) (West 2009). 18 U.S.C. § 922(g)(1), by contrast, makes the
possession of a firearm unlawful for those convicted of “a crime punishable by
imprisonment for a term exceeding one year.” Castillo-Rivera argues that the
term “felony” as used in TPC § 46.04 is broader—i.e. includes more crimes—
than Section 922(g)(1). He contends, for example, that crimes that are
punishable for exactly one year are considered felonies for purposes of TPC §
46.04, but not for 18 U.S.C. § 922(g)(1). And, because the text of TPC § 46.04
includes as felonies crimes that would not qualify under its federal
counterpart, it cannot be “described in” section 922(g)(1).
But the comparison of generic federal statutes to allegedly nongeneric
state counterparts is not an invitation to apply “legal imagination to a state
statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A
defendant who argues that a state statute is nongeneric cannot simply rest on
plausible interpretations of statutory text made in a vacuum. He must also
show “a realistic probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic definition of the
crime.” Id. The Supreme Court has explained that establishing a realistic
probability is not an exercise in educated guessing. Rather, “[t]o show [a]
realistic probability, an offender, of course, may show that the statute was so
applied in his case. But he must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.” Id. (emphases added); see also Moncrieffe v.
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Holder, 133 S. Ct. 1678, 1693 (2013) (reiterating that defendants “have to
demonstrate that the State actually prosecutes the relevant offense” in a
nongeneric manner).
Thus, in order to prevail on his argument that the term “felony” as used
in TPC § 46.04 includes crimes that would not be included under 18 U.S.C. §
922(g)(1), Castillo-Rivera cannot simply point to certain crimes that may be
included in one but not the other. He must also show that Texas courts have
actually applied TPC § 46.04 in this way. He has failed to do so—indeed, he
makes no attempt. Instead, he describes numerous crimes that could be
considered felonies under the Texas statute but that are not felonies under
federal law, even suggesting that “[t]here are probably too many” such offenses
to list in his brief. It is telling that, despite these many evident opportunities,
Castillo-Rivera does not point to any case in which Texas courts actually
applied TPC § 46.04’s definition of felon to a defendant who could not also be
covered by 18 U.S.C. § 922(g)(1).
The dissent maintains that, because the Texas statute’s definition of
felon is plainly broader than its federal counterpart, Castillo-Rivera is not
required to point to an actual case in which Texas courts applied the Texas
statute’s definition of felon to capture those not included under Section
922(g)(1). That position does not comply with the Supreme Court’s directive in
Duenas-Alvarez. There is no exception to the actual case requirement
articulated in Duenas-Alvarez where a court concludes a state statute is
broader on its face. Indeed, the Court in Duenas-Alvarez emphasized that a
defendant must “at least” point to an actual state case—the implication being
that even pointing to such a case may not be satisfactory. Duenas-Alvarez, 549
U.S. 183, 193. In short, without supporting state case law, interpreting a state
statute’s text alone is simply not enough to establish the necessary “realistic
probability.” Id.
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It is worth also noting the practical implications of Castillo-Rivera’s
contention. Although it may seem narrow at first glance, Castillo-Rivera’s (and
the dissent’s) argument that the Texas felon-in-possession statue is non-
generic is in fact breathtaking in scope. Castillo-Rivera maintains that the
Texas statute is broader because it includes within its definition of felony
crimes that are punishable for less than a year-and-a-day. But such a ruling
would render dozens of states’ felon-in-possession statutes non-generic.
Maine’s statute, for example, prohibits possession by anyone convicted of “[a]
crime . . . that is punishable by imprisonment for a term of one year or more.”
Me. Stat. tit. 15 § 393. And in Maine, Unlawful Sexual Touching is punishable
by up to a year in county jail. Me. Stat. tit. 17-A § 260. Applying the dissent’s
logic, Maine’s statute is non-generic because, on its face, it criminalizes
possession of a firearm by someone convicted of a crime that is punishable by
less than a year-and-a-day imprisonment. Whether Maine courts actually
apply its felon-in-possession statute in such a manner is, for the dissent,
irrelevant. Or consider Maryland, which prohibits a person from possessing a
firearm if he or she “has been convicted of a disqualifying crime.” Md. Code
Ann., Pub. Safety, § 5-133. A “disqualifying crime” includes “a violation
classified as a felony.” Md. Code Ann., Pub. Safety, § 5-101. In Maryland, child
abduction in certain instances is a felony punishable by up to a year in prison.
Md. Code Ann., Family Law, § 9-307. Goodbye Maryland. And what of the
many states whose definition of “felony” for purposes of firearm possession
includes persons who were convicted under the laws of any state? If Texas’s
statute is non-generic, so are all of those as well. So long, Alaska, California,
Colorado, Georgia, Illinois, Iowa, Kentucky, Nevada, New Hampshire, New
Mexico, and Virginia. Indeed, by our count, 37 states’ felon-in-possession
statutes would be at least arguably rendered non-generic if we applied Castillo-

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Rivera’s logic. 2 It strains credulity to suggest that such a result would reflect
Congress’ intent in enacting 18 U.S.C. § 922(g)(1).
Our own precedents are also in agreement that, to successfully argue
that a state statute is nongeneric, a defendant must provide actual cases where
state courts have applied the statute in that way. The case United States v.
Carrasco-Tercero, 745 F.3d 192 (5th Cir. 2014) is particularly instructive
because it has important similarities to our own. Like Castillo-Rivera,
Carrasco-Tercero pleaded guilty to illegal reentry. His PSR also recommended
an enhancement, in his case because he had been convicted in New Mexico for
aggravated assault with a deadly weapon, which was considered a crime of
violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Like Castillo-Rivera, he too
argued that the state statute was broader on its face than its federal
counterpart, and therefore could not be considered a crime of violence for
sentencing purposes. 3 A unanimous panel—quoting to Duenas-Alvarez—
rejected Carrasco-Tercero’s contention, concluding that his argument from the
text of the New Mexico statute was unavailing because he “failed to identify a
single case where a New Mexico court ha[d] convicted a defendant . . . based
on” his proposed interpretation of the statute’s language. Id. at 198.
Carrasco-Tercero is no outlier. In United States v. Teran-Salas, 767 F.3d
453 (5th Cir. 2014), for example, we held that, although the defendant had
“describe[d] a theoretical possibility that [a] Texas statute criminalize[d]
conduct that would not qualify” as a generic federal offence, his argument

2 For a list of all of these, see the Appendix attached to this opinion.
3 Indeed, Carrasco-Tercero’s argument was even stronger than Castillo-
Rivera’s, because he pointed to persuasive precedent from a sister circuit explicitly
holding that the New Mexico statute’s broad language “obstruct[ed] any argument
that New Mexico aggravated assault (deadly weapon) qualifies as a crime of violence.”
Carrasco-Tercero, 745 F.3d at 197 (quoting United States v. Rede-Mendez, 680 F.3d
552, 558 (6th Cir. 2012)).
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failed nonetheless because he could not establish a “realistic probability” that
he or anyone else was prosecuted in Texas under the nongeneric
interpretation. Id. at 460. In United States v. Ceron, 775 F.3d 222 (5th Cir.
2014), we again rejected a defendant’s “clever hypothetical” because he made
“no showing that [state] courts actually apply the [state] statute to this . . .
hypothetical conduct.” Id. at 229. In United States v. Hernandez-Galvan, 632
F.3d 192 (5th Cir. 2011) we concluded that, although the state statute in
question had language that could be interpreted as criminalizing some acts
that its federal generic counterpart would not, the defendant had not
“demonstrate[d] that th[e] difference is significant as a practical matter”
because he “ha[d] not identified even one [state] case that . . . would have been
decided differently.” Id. at 200. We have reiterated this point in many other
cases. See, e.g., United States v. Sanchez, 667 F.3d 555, 561 (5th Cir. 2012)
(defendant had to point to an actual case even though the “literal terms” of the
state statute were arguably different from their federal equivalents); United
States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2012) (same); United
States v. Cordoba-Posos, 295 F. App’x 651, 656–57 (5th Cir. 2008) (a State
Senator’s statements to the effect that a state statute swept more broadly than
its federal counterpart was “insufficient to show a realistic probability” where
defendant could not “produce a single case” in which a state court had actually
applied the state law as such); United States v. Lara-Martinez, 836 F.3d 472,
476 (5th Cir. 2016) (defendant did not satisfy the actual case requirement
where he pointed to a case applying a different state statutory provision). 4

4 It is worth noting that a number of the dissenters here were in the majority in one
or more of the listed cases in our circuit holding that a defendant must point to an actual
state case applying a state statute in a nongeneric manner, even where the state statute may
be plausibly interpreted as broader on its face.
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Castillo-Rivera has had multiple opportunities to present a case in which
a Texas court applied TPC § 46.04’s definition of felon to a defendant who could
not have been considered a felon under 18 U.S.C. § 922(g)(1). He did not do so
in the court below, he did not before the panel on appeal, and he has not in his
briefing or at oral argument before the en banc court. His argument that TPC
§ 46.04’s definition of felon is broader than Section 922(g)(1) therefore fails.

B. Firearm
For purposes of TPC § 46.04, “firearm” is defined as “any device designed,
made, or adapted to expel a projectile through a barrel by using the energy
generated by an explosion or burning substance or any device readily
convertible to that use.” Tex. Penal Code Ann. § 46.01(3) (West 2009). Federal
law defines “firearm” for purposes of 18 U.S.C. § 922(g)(1) as “(A) any weapon
(including a starter gun) which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or firearm silences; or (D)
any destructive device.” 18 U.S.C. § 921(a)(3). Castillo-Rivera homes in on one
supposed distinction between the two definitions: under the Texas definition a
firearm expels a projectile by “explosion or burning substance,” while under
the federal definition a firearm expels a projective by “explosive.” He argues
that, although textually similar, the Texas definition includes an “air gun”—a
weapon that expels projectiles using compressed air—while the federal
definition does not.
We note at the outset that Castillo-Rivera is correct that an air gun is
not a firearm within the federal definition. See, e.g., United States v.
Housholder, 664 F. App’x 720, 723 (10th Cir. 2016) (noting that “an airgun . . .
is not a firearm”); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010)
(holding that the federal definition of firearm “self-evidently does not include

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No. 15-10615
an air rifle . . . which operates by compressed air”). As above, however, Castillo-
Rivera must also establish a realistic probability that Texas would apply its
definition of firearm to include an air gun when applying TPC § 46.04 by
pointing to an actual case where a Texas court did so. He attempts to satisfy
this burden by pointing to two Texas cases. Neither is availing.
The first, Mosley v. State, 545 S.W.2d 144 (Tex. Crim. App. 1976), is
easily disposed of. In that case, the defendant was convicted of aggravated
assault after pointing an unloaded B.B. gun at his victim in a parking lot and
threatening to kill her. Id. at 145. He appealed his conviction, arguing that the
B.B. gun was not a “deadly weapon” as required by the Texas aggravated
assault statute. Id. In its opinion on Texas’s motion for rehearing, the court
wrote, “[i]n holding that the device involved did not constitute a firearm . . .
the opinion did not attempt to exclude all types of air guns or pistols from the
definition of a firearm. We do not reach that question in this case.” Id. at 146
(emphasis added). Indeed, the court reaffirmed its holding that Mosley’s B.B.
gun was not a firearm. This case therefore offers no help to Castillo-Rivera.
The second case Castillo-Rivera highlights is admittedly closer to the
mark. In Boston v. State, No.05-96-00832-CR, 1998 WL 19938 (Tex. App.—
Dallas Jan. 22, 1998), Boston was convicted for aggravated assault of a peace
officer under TPC § 22.02(a)(2) after pointing an air rifle at a law enforcement
officer. Boston appealed his conviction and challenged the sufficiency of the
evidence, arguing that the air rifle was not a “firearm” as alleged in his
indictment. Id. at *1. A firearms expert at Boston’s trial testified that the air
rifle qualified as a firearm under the definition in TPC § 46.01—the same
definition at issue in Castillo-Rivera’s case. Id. Explaining that it was bound
by the trial court’s crediting the expert’s testimony on the firearm issue, the
court in Boston found that the expert’s testimony was “sufficient for the trial
court to find beyond a reasonable doubt that the air rifle fell within the
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definition of ‘firearm’ in chapter 46.” Id. at *2. Castillo-Rivera argues that,
because Boston interpreted chapter 46’s definition of “firearm” to include an
air rifle, and because Boston could not have been convicted of the crime with
which he was charged absent application of that definition, Boston establishes
a realistic probability that Texas would apply TPC § 46.04 to include air guns.
We note first that Boston did not hold as a matter of law that the Texas
definition of firearm includes air guns. The court made a sufficiency–of–the–
evidence determination only, and applied the very deferential standards of
review appropriate in such a case. As such, the court “[did] not have the power
to re-evaluate the probity” of the firearms expert’s testimony. Id. at *2.
Importantly, therefore, the court did not decide if an air gun is a firearm under
TPC § 46.01; it only decided that the district court did not err in crediting a
given firearms expert’s testimony to that effect.
Perhaps more importantly, Boston was not a felon-in-possession case.
Indeed, it had nothing to do with TPC § 46 whatsoever. Boston was charged
and convicted under an entirely different chapter of the Texas code—TPC §
22.02(a)(2). The court in Boston highlighted this distinction, writing, “[w]e note
initially that appellant was charged with aggravated assault under chapter 22
of the penal code. By its text, the definition of ‘firearm’ in section 46.01 only
applies to the weapons offenses enumerated in chapter 46.” Id. (internal
citations omitted). The court went on to explain that it was simply using
chapter 46’s definition “to assist in the understanding of ‘deadly weapon’ in the
context of other offenses.” Id. Thus, the court in Boston did not purport to
interpret or apply TPC § 46’s definition of firearm for purposes of chapter 46
itself.
Castillo-Rivera contends that TPC § 46.04 is nongeneric in part because
it criminalizes possession of an air gun where its federal counterpart does not.
Boston does not establish the necessary realistic probability that Texas courts
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would apply TPC § 46.04 itself in this nongeneric manner, because Boston did
not deal with TPC § 46.04 at all. The Supreme Court has instructed that, to
carry his burden, a defendant must point to a case “in which the state courts
in fact did apply the statute in the special (nongeneric) manner for which he
argues.” Duenas-Alvarez, 549 U.S. at 193 (emphasis added); see also
Moncrieffe, 133 S. Ct. at 1693 (defendant must point to a case in which “the
State actually prosecute[d] the relevant offense” in a nongeneric fashion)
(emphasis added). Boston is not such a case. Castillo-Rivera’s argument
regarding the definition of firearm must therefore fail as well.
IV
Because Castillo-Rivera has not established a realistic probability that
Texas courts would actually apply TPC § 46.04 more broadly than 18 U.S.C. §
922(g)(1), his argument that TPC § 46.04 is not an aggravated felony for
purposes of the sentencing guidelines fails. The 8-level enhancement to his
sentence was correctly applied. Judgment is AFFIRMED.

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State Felon in Possession of Firearm Statute Language in Issue Effect
Domestic violence, third degree is Class A
misdemeanor. Ala. Code § 13A-6-132. Class A
"No person who has been convicted . . . of misdemeanor punishable by "a term of
committing or attempting to commit a . . . imprisonment not in excess of one year." Ala.
1 Alabama Ala. Code § 13A-11-72 misdemeanor offense of domestic violence" Code § 13A-5-7.
Statute includes felonies from other states that
"convicted of a felony . . . by . . . a court of another carry punishment of up to a year in prison (MD,
2 Alaska Alaska Stat. § 11.61.200 state or territory " MS, OH, OK, UT)
Statute includes felonies from other states that
"Any person who has been convicted of a felony carry punishment of up to a year in prison (MD,
3 California Cal. Penal Code § 29800 under the laws of . . . any other state" MS, OH, OK, UT)
Statute includes felonies from other states that
"subsequent to the person's conviction for a felony carry punishment of up to a year in prison (MD,
4 Colorado Colo. Rev. Stat. § 18-12-108 . . . under . . . any other state's law" MS, OH, OK, UT)
Del. Code Ann. tit. 11 § 601, Offensive Touching,
"Any person who has been convicted in any court can be a Class A misdemeanor punishable by up
of any misdemeanor crime of domestic violence . . . to one year in prison. Del. Code Ann. tit. 11 §
5 Delaware Del. Code Ann. tit. 11 § 1448 defined under § 601" 4206.
A violation of D.C. Code § 16-1022, Parental
"Has been convicted within the past 5 years of an Kidnapping, is punishable by imprisonment of
6 DC D.C. Code § 22-4503 intrafamily offense" one year. D.C. Code § 16-1024.
Statute includes felonies from other states that
"Any person . . . who has been convicted of a felony carry punishment of up to a year in prison (MD,
7 Georgia Ga. Code Ann. § 16-11-131 by a court of this state or any other state" MS, OH, OK, UT)
"Crime of Violence," as defined in Haw. Rev. Stat.
§ 134-1, includes harassment by stalking, Haw.
Rev. Stat. § 711-1106.5. Harassment by stalking
is a misdemeanor, punishable by a prison
"No person who . . . has been convicted . . . of . . . sentence “not to exceed one year.” Haw. Rev.
8 Hawaii Haw. Rev. Stat. § 134-7 any crime of violence" Stat. § 706-663.

One of the crimes listed in Idaho Code § 18-310,
"'[C]onvicted of a felony' shall include . . . any of Enticing of Children, has punishment of not more
9 Idaho Idaho Code § 18-3316 the crimes enumerated in [Idaho Code §] 18-310" than six months in prison. Idaho Code § 18-1509.
Statute includes felonies from other states that
"if the person has been convicted of a felony under carry punishment of up to a year in prison (MD,
10 Illinois 720 Ill. Comp. Stat. 5/24-1.1 the laws of this State or any other jurisdiction." MS, OH, OK, UT)
Statute includes felonies from other states that
"A person who is convicted of a felony in a state or carry punishment of up to a year in prison (MD,
11 Iowa Iowa Code § 724.26 federal court" MS, OH, OK, UT)
A violation of Kan. Stat. Ann. § 5706(b) is a Class
"Has been convicted of . . .a violation of article 57 A misdemeanor, punishable by up to a year in
12 Kansas Kan. Stat. Ann. § 21-6304 of chapter 21 of the Kansas Statutes Annotated" prison. Kan. Stat. Ann § 21-6602(a)(1).
"[W]hen he has been convicted of a felony, as Statute includes felonies from other states that
defined by the laws of the jurisdiction in which he carry punishment of up to a year in prison (MD,
13 Kentucky Ky. Rev. Stat. Ann. § 527.040 was convicted, in any state or federal court" MS, OH, OK, UT)

La. Stat. Ann [R.S.] § 15:541 includes a second
"Any person who has been convicted of . . . any conviction of voyuerism, which carries a penalty
crime which is described as a sex offense in R.S. of imprisonment with or without hard labor for
14 Louisiana La. Stat. Ann. § 14:95.1 15:541" not more than one year. La. Stat. Ann. § 14:283.1

Me. Stat. tit. 17-A § 260, Unlawful Sexual
"A crime that is punishable by imprisonment for a Touching, is a Class D offense, punishable by up
15 Maine Me. Stat. tit. 15 § 393 term of one year or more" to a year in county jail. Me. Stat. tit 17-A § 1252
Disqualifying crime, as defined in Md. Code Ann.,
Pub. Safety, § 5-101, includes "a violation
classified as a felony in the State." Md. Code
Ann., Family Law, § 9-305,
"[A] person may not possess a regulated firearm if Abduction/Detainment of a Child, is a felony
the person (1) has been convicted of a disqualifying punishable by up to a year in prison. Md. Code
16 Maryland Md. Code Ann., Pub. Safety, § 5-133 crime" Ann., Family Law, § 9-307.
"A firearm identification card shall be issued [to]
any person . . . if it appears that the applicant is
not a prohibited person. A prohibited person shall
be a person who: (i) has ever . . . been convicted . . .
of . . . (e) a violation of any law regulating the use, Mass. Gen. Laws ch. 94C § 32G makes the
possession or sale of controlled substances . . . creation, distribution, dispersion, and possession
including . . . chapter 94C" Mass. Gen. Laws ch. of a counterfeit substance a crime punishable by
17 Massachusetts Mass. Gen. Laws ch. 269 § 10 140 § 129 not more than one year in jail.

"a person who has been convicted in Minnesota or Minn. Stat. § 152.027(6) makes possession of a
elsewhere of a misdemeanor or gross misdemeanor synthetic cannabinoid a misdemeanor punishable
18 Minnesota Minn. Stat. § 624.713 violation of chapter 152" by up to ninety days in jail. Minn. Stat. § 609.02
Miss. Code Ann. § 97-3-13, Malicious
Confinement as Mentally Ill, is a felony which
"It shall be unlawful for any person who has been carries a penalty of not more than a year in the
19 Mississippi Miss. Code Ann. § 97-37-5 convicted of a felony under the laws of this state" penitentiary
Neb Rev. St. § 28-323, domestic assault, has one
violation which qualifies as a Class I
"Any person who possesses a firearm . . . And who misdemeanor. Neb. Rev. St. § 28-106 sets penalty
has been convicted within the past seven years of for Class I misdemeanor penalty as not more
20 Nebraska Neb. Rev. Stat. § 28-1206 a misdemeanor crime of domestic violence" than one year imprisonment
"A person shall not own or have . . . any firearm if Statute includes felonies from other states that
the person: (a) Has been convicted of a felony in carry punishment of up to a year in prison (MD,
21 Nevada Nev. Rev. Stat. § 202.360 this State or any other state" MS, OH, OK, UT)
 Case: 15-10615 Document: 00513934076 Page: 15 Date Filed: 03/30/2017

"A person is guilty of a class B felony if he (a)
Owns or has in his possession or control [a Statute includes felonies from other states that
weapon] and (b) Has been convicted in either a carry punishment of up to a year in prison (MD,
22 New Hampshire N.H. Rev. Stat. Ann. § 159.3 state or federal court in this or any other state" MS, OH, OK, UT)
N.J. Stat. Ann. § 2C:39-3(k) makes the possession
of handcuffs under circumstances not manifestly
appropriate for such lawful uses as handcuffs
may have guilty of a disorderly persons offense.
"[A]ny person convicted of a crime pursuant to the Disorderly person offenses in NJ are punishable
provisions of N.J.S.2C:39-3 . . . who [has] any of by up to six months in jail. N.J. Stat. Ann. §
23 New Jersey N.J. Stat. Ann. § 2C:39-7 the said weapons is guilty of a crime" 2C:43-8
"As used in this section: . . . (2) felon means a
person convicted of a felony offense by a court of Statute includes felonies from other states that
the United States or of any state or political carry punishment of up to a year in prison (MD,
24 New Mexico N.M. Stat. Ann. § 30-7-16 subdivision thereof MS, OH, OK, UT)
"A person is guilty of criminal possession of a "Any crime" would include misdemeanors, which
weapon in the third degree when (1) such person . carry no more than a year in prison. N.Y. Penal
25 New York N.Y. Penal Law § 265.02 . . Has been previously convicted of a crime" Law § 70.15

According to the North Carolina Punishment
Chart, Class I felonies are punishable by up to a
"It shall be unlawful for any person who has been year in jail. The Guidelines are available here:
convicted of a felony to purchase, own, possess . . . http://www.nccourts.org/Courts/CRS/Councils/spa
26 North Carolina N.C. Gen. Stat. § 14-415.1 any firearm" c/Sentencing/Punishment.asp
N.D. Cent. Code § 12.1-17-01, Simple Assault,
"A person who has been convicted anywhere of a can be a Class B misdemeanor, punishable by a
felony offense involving violence or intimidation in maximum of thirty days in jail. N.D. Cent. Code
27 North Dakota N.D. Cent. Code § 62.1-02-01 violation of chapters 12.1-16 through 12.1-25" § 12.1-32-01
Offense of violence, as defined in Ohio Rev. Code
Ann. § 2901.01, includes Assault, Ohio Rev. Code
"No person shall knowingly [have] any firearm . . . Ann. § 2903.13. Assault can be a felony of the
If (2) The person is under indictment for or has fifth degree, punishable by up to a year in jail.
28 Ohio Ohio Rev. Code Ann. § 2923.13 been convicted of any felony offense of violence" Ohio Rev. Code Ann. § 2923.13
Attempt to Escape from other prison than
penitentiary is a felony punishable by
"[I]t shall be unlawful for any person convicted of imprisonment not exceeding one year. Okla.
29 Oklahoma Okla. Stat. tit. 21 § 1283 any felony in any court of this state" Stat. tit. 21 § 1283
Statute includes felonies from other states that
"Any person who has been convicted of a felony carry punishment of up to a year in prison (MD,
30 Oregon Or. Rev. Stat. § 166.270 under the law of this state or any other state" MS, OH, OK, UT)
Subsection B includes Corruption of Minors,
which can be a third degree misdemeanor. 18
Pa. Cons. Stat. § 6301(a)(2). Third degree
misdemeanors have a maximum term of
"A person who has been convicted of an offense imprisonment of up to one year. 18 Pa. Cons.
31 Pennsylvania 18 Pa. Cons. Stat. § 6105 enumerated in subsection (b)" Stat. § 106
Crime of violence, as defined in R.I. Gen. Laws §
11-47-2(2), includes felony manufacture of a
controlled substance. R.I. Gen. Laws § 21-28-
4.01. Manufacture of a Schedule V substance is a
felony, as it could be penalized with a fine of
more than $1,000. R.I. Gen. Laws § 11-1-2.
"(a) No person who has been convicted in this state Manufacture of a Schedule V substance also
or elsewhere of a crime of violence . . . shall [have] carries a potential prison sentence of up to a
32 Rhode Island R.I. Gen. Laws § 11-47-5 any firearm." year.
"For purposes of this section, an offense under the
laws of this state, another state . . . is . . . a felony
if . . . the offense: . . . (3) is punishable by Statute includes felonies from other states that
confinement for one year or more in a carry punishment of up to a year in prison (MD,
33 Texas Tex. Penal Code § 46.04 penitentiary" MS, OH, OK, UT)
Utah Code Ann. § 41-4-9 makes it a felony to
"For purposes of this section: . . . a Category II violate the specific chapter of Utah Motor Vehicle
restricted person is a person who : has been Code. That punishment cannot be greater than a
34 Utah Utah Code Ann. § 76-10-503 convicted of any felony" year.

Violent crime, as defined in Vt. Stat. Ann. tit 13 §
4017, includes violation of abuse prevention order
under Vt. Stat. Ann. tit 13 § 1030. Violation of
"A person shall not possess a firearm if the person abuse prevention order carries a penalty of not
35 Vermont Vt. Stat. Ann. tit 13 § 4017 has been convicted of a violent crime." more than one year in prison
"It shall be unlawful for (i) any person who has
been convicted of a felony . . . whether such Statute includes felonies from other states that
conviction or adjudication occurred under the laws carry punishment of up to a year in prison (MD,
36 Virginia Va. Code Ann. § 18.2-308.2 of the Commonwealth, or any other state" MS, OH, OK, UT)

"No person shall possess a firearm . . . who: . . .
(8) has been convicted of a misdemeanor offense of W. Va. Code § 61-2-28, Domestic Violence,
assault or battery either under the provisions of includes the crime domestic battery, which is
37 West Virginia W. Va. Code § 61-7-7 section twenty-eight, article two of this chapter punishable by up to a twelve months in jail.
 Case: 15-10615 Document: 00513934076 Page: 16 Date Filed: 03/30/2017

No. 15-10615
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
I write separately to explain my views on two matters. First, the many
opinions have produced several conflicting and remarkably distinct
understandings of Supreme Court precedent. With respect, I find more
complexity in these writings than is presented in the case. To my eyes, the
overarching objective here is to achieve equality in federal sentencing. To that
end, when criminal records are considered in federal sentencing, and we look
to state convictions, our effort is to assign the same values to the same criminal
conduct. Hence, we must not accept labels of crimes—for example burglary—
when often the offenses travelling out of that label vary greatly in the criminal
conduct being punished. 1 Responding to this reality, the Supreme Court has
defined a federal offense filter through which these state convictions must
pass. For example, we do not wish to impose the same levels of punishment in
a federal statute for a defendant engaged in shoplifting and a defendant
engaged in the felony of burglary. Returning to these basic principles, I am
confident the Court can, and will, in future cases move to an even more
compelling analysis. In addition to the thoughtful dissent of Judge Dennis, the
other writings strongly suggest we are on such a path. As we move forward, I
join Judge Clement’s opinion as a stabilizing way station. For these reasons, I
concur in Judge Clement’s opinion for the Court.
Regarding the rule of orderliness issue, Judge Smith’s dissent proposes
that this Court set off on an unwise course that would inevitably lead to
confusion on threshold questions about how to interpret precedent. Well-
intentioned though it is, and with respect, I must register disagreement and a

1 See United States v. Bernel-Aveja, 844 F.3d 206, 215 (5th Cir. 2016) (Higginbotham,
J., concurring in the judgment).

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No. 15-10615
caution. To go forward and reduce the jurisprudence of stare decisis to a
detailed code confected by case-by-case determination of rules apart from our
well-developed principles of stare decisis would serve disorder, not order.
Our “rule” of orderliness is simply that we are to apply stare decisis in
determining whether an earlier panel opinion is controlling. It differs from that
body of jurisprudence in one respect—a difference which captures the need for
orderly process among three-judge panels—that is, one panel may not overrule
another. A panel’s application of the stare decisis rule is always reviewable by
an en banc proceeding, decisions inevitably interlaced with the merits of the
issues. We have one other self-imposed constraint, that requiring pre-
circulation of opinions that would create conflicts with other circuits. While
largely hortatory, its disregard is equally reviewable by the en banc court. If
the objectives here are to reduce the number of en banc courts, the path
suggested is perverse. Another observation that Yogi did not make is that “if it
ain’t broke, don’t fix it.”

15
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No. 15-10615
PRISCILLA R. OWEN, Circuit Judge, joined by E. GRADY JOLLY, Circuit
Judge, concurring:

I concur in the en banc court’s opinion. I write separately because there
is an additional, at least equally compelling, basis for concluding that Castillo-
Rivera’s prior conviction in 2009 under Texas Penal Code section 31.07(b) for
unauthorized use of a motor vehicle constitutes “an offense described in” 18
U.S.C. § 922(g)(1). 1 That basis is that Castillo-Rivera’s prior conviction comes
within subsection (1) of 46.04(f), and all predicate offenses defined in
subsection (1) of 46.04(f) are “described in” § 922(g)(1), and section 46.04(f) is
“divisible.” This is clear when Texas law and the Supreme Court’s
jurisprudence regarding “divisible” statutes are examined.
The term “felony,” as used in the Texas felon-in-possession statute, is
defined in that statute itself, in subsection (f). Section 46.04 states:
(a) A person who has been convicted of a felony commits an
offense if he possesses a firearm: [after conviction within
certain parameters]
...
(f) For the purposes of this section, an offense under the laws of
this state, another state, or the United States is, except as
provided by Subsection (g), a felony if, at the time it is
committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense
designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or
more in a penitentiary. 2

All agree that if a defendant were convicted of an offense described in
subsection 3 of 46.04(f) that was punishable by not more than one year of

1 8 U.S.C. § 1101(a)(43)(E).
2 TEX. PENAL CODE ANN. § 46.04 (West).
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No. 15-10615
confinement, then that offense would not be “an offense described in” the
federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1). 3 That is
because the term of confinement for an offense qualifying under 46.04(f)(3),
“confinement for one year or more in a penitentiary,” can be less than the term
of confinement for an offense described in § 922(g)(1), which is “punishable by
imprisonment for a term exceeding one year.” However, all offenses described
in subsection 1 of 46.04(f) are categorically offenses “punishable by
imprisonment for a term exceeding one year.” 4 An offense under subsection
46.04(f)(1) is one that “is designated by a law of this state as a felony.” 5 Under
Texas law, the least serious felonies are “state jail felonies,” 6 and the term of
confinement for a state jail felony is “not more than two years or less than 180
days.” 7 Consequently, every offense expressly designated as a “felony” by a
Texas statute carries a potential sentence of at least up to two years of
confinement. Castillo-Rivera does not dispute this.
Castillo-Rivera argues that Texas Penal Code section 46.04(f) is overly
broad and is not “divisible,” within the meaning of Supreme Court decisions

3 See 8 U.S.C. § 1101(a)(43)(E) (referencing “an offense described in” 18 U.S.C.
§ 922(g)).
4 18 U.S.C §922(g)(1).
5 TEX. PENAL CODE ANN. § 46.04(f)(1) (West).
6 See id. § 12.04:

§ 12.04. CLASSIFICATION OF FELONIES
(a) Felonies are classified according to the relative
seriousness of the offense into five categories:
(1) capital felonies;
(2) felonies of the first degree;
(3) felonies of the second degree;
(4) felonies of the third degree; and
(5) state jail felonies.
(b) An offense designated a felony in this code without
specification as to category is a state jail felony.
7 Id. § 12.35(a).

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No. 15-10615
including Mathis v. United States. 8 He therefore asserts that courts cannot
consider the judicial documents pertaining to his prior conviction to see if it
was for an offense that comes within subsection (1), rather than subsection (3).
This argument should be rejected.
Each of the three subsections in 46.04(f) are distinct definitions of what
offenses are considered “felon[ies]” for purposes of the Texas felon-in-
possession statute. While it is undisputed that not all offenses described in
subsection (3) are described within § 922(g)(1), all offenses described in
subsection (1) are described within § 922(g)(1). Importantly, each of the
subsections in 46.04(f) contains only legal definitions. Whether a prior
conviction is an offense coming within subsection (1) of 46.04(f) is a question of
law decided by the Texas courts in which the felon-in-possession-of-a-firearm
is prosecuted. 9 In the present case, a court can examine the predicate offense
for the Texas felon-in-possession-of-a-firearm conviction and determine, as a
matter of law, whether that predicate offense came within subsection
46.04(f)(1).

8 136 S. Ct. 2243 (2016).
9 See Lucio v. State, 128 S.W.3d 262, 263 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(“The issue presented by this appeal is whether the State was required to prove that the
aggravating offense, i.e., indecency with a child, was a felony. We hold that the State was
not required to put on evidence to prove that indecency with a child is a felony. It is true that
whether the appellant committed the crime of indecency with a child was a question of fact for
the jury. Accordingly, the jury was charged on the elements of indecency with a child.
However, whether such crime is a felony presents a legal issue, not a fact question. Therefore,
the trial judge correctly instructed the jury that indecency with a child is a felony, rather
than submitting that issue to the jury for a factual determination.”); see also Andika v. State,
No. 10-04-00278-CR, 2005 WL 1484050, at *4 (Tex. App.—Waco June 22, 2005, no pet.) (mem.
op., not designated for publication) (“Whether a prior conviction is a felony is a question of
law; it is not subject to a ‘legal sufficiency’ review.”); Jordan v. State, No. 01-14-00721-CR,
2015 WL 6768497, at *7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op., not
designated for publication) (“Whether an out-of-state offense constitutes a felony for purposes
of enhancement is a question of law that we review de novo.”).
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No. 15-10615
Although it is questionable whether the Mathis divisibility inquiry fully
applies to a statute such as Texas Penal Code section 46.04(f), that inquiry
leads to the conclusion that section 46.04(f) is “divisible.” The decision in
Mathis explains that when considering if Congress intended certain offenses
to constitute an enumerated or described offense, “Congress referred only to
their usual or (in our terminology) generic versions—not to all variants of the
offenses.” 10 Courts employ the “categorical approach,” which “focus[es] solely
on whether the elements of the crime of conviction sufficiently match the
elements of [the] generic” crime. 11 The existence of a prior criminal conviction
is not an element of a offense in the sense that we often view the term
“element.” For example, in the Armed Career Criminal Act (ACCA) 12 cases in
which the concept of whether the statute of conviction is “divisible” has been
developed, including Mathis, the Supreme Court has held that the fact of
whether a prior conviction exists is not a question for the finder of fact. 13
It should also be borne in mind that whether a person is a felon is an
inquiry about status. Being denominated a felon under the law is not an act
or omission (actus reus) accompanied by a state of mind (mens rea). Nor is the
status of “felon” a “means” of committing another crime. It is a pre-existing
legal designation. The Supreme Court’s divisibility analysis has focused on
distinguishing “elements” of an offense from “means” of committing an offense
when a statute of conviction is “alternatively phrased.” 14 That analysis has

10 Mathis, 136 S. Ct. at 2248.
11 Id.
12 18 U.S.C. § 924(e).
13 Mathis, 136 S. Ct. at 2252 (“This Court has held that only a jury, and not a judge,

may find facts that increase a maximum penalty, except for the simple fact of a prior
conviction.”).
14 Id. at 2249.

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No. 15-10615
not been employed in resolving whether statutory alternatives, each of which
concern only a question of law, are divisible. Whether a prior conviction is an
offense that comes within subsection 1 of section 46.04(f) of the Texas Penal
Code is purely a question of a law.
The Supreme Court has long recognized that the statute under which a
prior conviction was obtained may contain alternatives. As noted, the
divisibility inquiry resolves whether an alternative is an element of an offense
or a means of committing an offense. For example, the decision in Mathis
explains that in determining whether a statute is divisible, the “threshold
inquiry” is “elements or means,” and state court decisions may “answer the
question.” 15 If “a jury need not agree” on a factual matter, then that factual
matter is not an element of the offense but a means of committing the offense. 16
The Mathis decision says that “‘[e]lements’ are the ‘constituent parts’ of a
crime’s legal definition—the things the ‘prosecution must prove to sustain a
conviction.’” 17 Importantly, Mathis tells us that “[a]t a trial,” elements “are
what the jury must find beyond a reasonable doubt to convict the defendant,”
and “at a plea hearing, they are what the defendant necessarily admits when
he pleads guilty.” 18 The questions of fact for a Texas jury regarding a prior
conviction in a felon-in-possession-of-a-firearm prosecution are whether there
was in fact a prior conviction and whether the defendant currently in the dock
was the defendant convicted in that prior proceeding. 19 This is typically proven

15 Id. at 2256.
16 Id.
17 Id. at 2248 (quoting BLACK’S LAW DICTIONARY 634 (10th ed. 2014)).
18 Id.
19 See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (“To establish that

a defendant has been convicted of a prior offense, the State must prove beyond a reasonable
doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction.”).
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No. 15-10615
by the introduction of a certified copy of the judgment in the prior case and
identifying evidence such as fingerprints. 20 This dichotomy between the
respective roles of jury and judge regarding the existence of a predicate offense
is similar, if not identical to that in federal courts. 21 Once the existence of a
prior conviction is established, whether that conviction was for a predicate
offense is not a question of fact but a question of law.
The reasons given by the Supreme Court for utilizing the categorical
approach to determine if a prior conviction may be used to increase punishment
all indicate that the elements/means inquiry elucidated in Mathis is not a
particularly good “fit” for, or is not fully applicable to, a statute of conviction
such as Texas Penal Code section 46.04(f). None of the reasons indicates that
a court should be precluded from resolving the legal question of whether a prior
conviction was for an offense defined in subsection (1) of 46.04(f).

20 See id. at 921-22 (“No specific document or mode of proof is required to prove [the
elements of a prior conviction]. There is no ‘best evidence’ rule in Texas that requires that
the fact of a prior conviction be proven with any document, much less any specific document.
While evidence of a certified copy of a final judgment and sentence may be a preferred and
convenient means, the State may prove both of these elements in a number of different ways,
including (1) the defendant’s admission or stipulation, (2) testimony by a person who was
present when the person was convicted of the specified crime and can identify the defendant
as that person, or (3) documentary proof (such as a judgment) that contains sufficient
information to establish both the existence of a prior conviction and the defendant’s identity
as the person convicted.”) (footnotes omitted); Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim.
App. 1986) (“We have consistently held that a prior conviction alleged for enhancement or a
conviction as a part of prior criminal record of a defendant . . . may be established by certified
copies of a judgment and a sentence and authenticated copies of the Texas Department of
Correction records including fingerprints, supported by expert testimony identifying them as
identical with known prints of the defendant.”).
21 See, e.g., FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases) §243.D,

notes (2015) (“The determination whether the defendant has a prior conviction is for the jury.
But, whether a conviction qualifies as a predicate offense under this statute is a legal
question for the judge, not the jury.”); see also U.S. v. Elrawy, 448 F.3d 309, 312 (5th Cir.
2006) (noting that whether a defendant’s particular circumstance rendered him “illegally or
unlawfully” in the United States based on statutory definitions was a legal issue of statutory
interpretation, reviewed de novo).
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No. 15-10615
The first reason articulated in Mathis is that the text of the ACCA
focuses on “whether ‘the defendant had been convicted of crimes falling within
certain categories,’ and not about what the defendant had actually done.” 22
Whether a defendant is a felon within the meaning of one of the subsections of
46.04(f) focuses only on whether a defendant has been convicted of crimes
falling within certain categories, not what the defendant actually did. As
noted, courts, not a jury, decide whether a particular offense is a “felony”
within the meaning of one or more of section 46.04(f)’s definitions.
The second reason given by the Supreme Court is that Sixth Amendment
concerns would be implicated if a judge, rather than a jury, were to find facts
that increased a maximum penalty. 23 The Supreme Court explained that the
judge’s role, “consistent with the Sixth Amendment,” is to “determine what
crime, with what elements, the defendant was convicted of.” 24 A judge’s role
in applying section 46.04(f) is to determine if, based on the statutory elements
of the prior offense and the prescribed punishment, the prior offense comes
within subsection 1, 2, or 3.
The third reason expressed by the Supreme Court is that “an elements-
focus avoids unfairness to defendants” because “statements of ‘non-elemental
fact’ in the records of prior convictions are prone to error precisely because
their proof is unnecessary” and “a defendant may have no incentive to contest
what does not matter under the law; to the contrary, he ‘may have good reason
not to.’” 25 This concern is not implicated by any of the alternative definitions
under 46.04(f) because each simply sets forth the legal parameters that

22 Mathis, 136 S. Ct. at 2252 (quoting Taylor v. United States, 495 U.S. 575, 600
(1990)).
23 Id.
24 Id.
25 Id. at 2253.

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No. 15-10615
determine whether a prior conviction comes within that statute’s definition of
a felony.
The disjunctive listings in Texas Penal Code section 46.04(f) are not of
the same ilk as those that have been the focus of the Supreme Court’s
divisibility analyses. But the reasons given by the Supreme Court for
preventing a court from examining the underpinnings of a prior conviction
support, rather than foreclose, application of the modified categorical approach
to section 46.04(f). A court, as a legal matter, may determine whether a prior
conviction comes within subsection (1) of 46.04(f) without transgressing the
reasons that the categorical approach is applied. Uniformity and fairness are
vindicated, not subverted, by determining if a prior conviction comes within
subsection (1). Section 46.04(f) is divisible. Castillo-Rivera’s conviction in 2009
was for a “felony” within the meaning of 46.04(f)(1), and that conviction is
categorically an offense “described in” § 922(g)(1).
With regard to Castillo-Rivera’s argument that the definition of a
firearm in Texas Penal Code section 46.04 is broader than § 922(g)’s definition,
I fully agree with the en banc court’s reasoning and disposition.

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No. 15-10615
JERRY E. SMITH, Circuit Judge, dissenting, joined by DENNIS, PRADO,
GRAVES, HIGGINSON, and COSTA, Circuit Judges, in full; and joined except
for footnote 2 by SOUTHWICK, Circuit Judge:

The baseball legend Yogi Berra is credited with the unintentionally hum-
orous statement, “When you come to a fork in the road, take it.” 1 By refusing,
in a terse footnote, to address the rule of orderliness, this en banc majority
declines to follow Yogi’s sage advice. I respectfully dissent. 2

The panel opinion, 3 two paragraphs long, relied on Nieto Hernandez v.
Holder, 592 F.3d 681, 686 (5th Cir. 2009), which held that Section 46.04(a) of
the Texas Penal Code “fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of
‘aggravated felony.’” Castillo-Rivera “urge[d] that this holding does not fore-
close his overbreadth arguments because they were not considered in Nieto
Hernandez.” 4 The panel reasoned, to the contrary, that it was “bound” by the
holding in Nieto Hernandez and could not address what it described as Castillo-
Rivera’s “new arguments.” 5

In his resourceful petition for rehearing en banc, the Federal Public
Defender explained that “the Panel held . . . that the rule of orderliness extends
to issues that were not considered by a prior panel. This is consistent with

1 The saying is mistakenly attributed to Berra. See https://en.wikiquote.org/-
wiki/Yogi_Berra. That common misunderstanding evokes recollection of a real “Yogiism”.
See The Yogi book: I really didn’t say everything I said! (Workman Publishing 1997), p. 9.
2 I join and agree with Judge Dennis’s compelling dissent on the merits, which shows
why the judgment of sentence should be vacated. Properly understood, Mr. Castillo-Rivera’s
Texas felon-in-possession conviction is not an aggravated felony for purposes of the sentenc-
ing guidelines. I write this separate dissent to examine the consequences of the majority’s
failure to address the rule of orderliness.
3 United States v. Castillo-Rivera, 836 F.3d 464 (5th Cir. 2016).
4 Id. at 464.
5 Id. at 465.
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No. 15-10615
some of this Court’s . . . decisions . . . but inconsistent with others. It is also
inconsistent with the Supreme Court’s precedent about precedent.” More pre-
cisely, the Federal Public Defender framed the procedural issue this way:
“[D]oes a prior opinion foreclose arguments that were waived in the prior pro-
ceeding but advanced in the current case?”

The reference to “waived” arguments stems from the fact that in Nieto
Hernandez, the defendant explicitly “concede[d] that his offense under . . .
§ 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated
felony.’” 6 Nieto Hernandez, 592 F.3d at 686 n.6. The Federal Public Defender
rightly reasoned that “Mr. Castillo-Rivera is not in privity with Mr. Nieto
Hernandez, and there is no reason why he should be held to the same waiver
that his predecessor selected.” 7

The court granted rehearing en banc 8 and sent the following notice:
Although the attorneys, in their briefs and oral argument, are free to
address any matters raised in the case, the court is principally inter-
ested in the two issues presented in the petition for rehearing en banc,
to-wit, (1) whether this court’s rule of orderliness, properly understood,
should extend to issues that were not considered by a prior panel and
(2) whether the crime defined in Texas Penal Code § 46.04(a) fits within
the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(E)(ii). In
addition to the briefs of the parties, the court welcomes qualified sub-
missions from amici curiae regarding either or both of these issues.

6 Except for an interstate-commerce element, not relevant here.
7 The en banc petition further explained,
This Court’s decisions diverge when considering arguments or issues that were
never presented to or addressed by the earlier panel. Are present-day judges bound
by rulings that were never made in the past? Said another way, is one appellant’s
deliberate choice to waive certain issues binding as to all future appellants? One
can find . . . Fifth Circuit panel opinions answering in the affirmative and . . . in the
negative.
8 United States v. Castillo-Rivera, 842 F.3d 862 (5th Cir. 2016) (per curiam).
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No. 15-10615
The parties fully addressed both questions in their en banc briefs, and the
Institute for Justice submitted a brief as amicus curiae, helpfully discussing
the rule of orderliness from the civil side of the docket.

The issue is therefore fully joined, but the en banc majority declines
Yogi’s advice to take the fork in the road. The excuse is terse: “We do not reach
this issue here, as it is not necessary to our disposition of Castillo-Rivera’s case
on the merits.”

Strictly speaking, that is true. The rule of orderliness binds panels not
to overrule earlier panels absent specified exceptions. Once a case is taken
en banc, the court is free to overrule or modify the holdings of any panel (or,
for that matter, a prior en banc decision). So any exposition by the en banc
court on the rule of orderliness will always be dictum. By that bare reasoning,
however, the rule of orderliness, however confusingly, erroneously, or
contradictorily stated by panels past, can never be changed or its scope refined
or reconciled. No panel can revisit it because of (guess what?) the rule of
orderliness. And—so the argument goes—the en banc court should not do so,
because it is, technically, unnecessary to the case at hand. Sort of a
“Catch 22.” 9

That logic, albeit handy in the interest of expediency, undermines the
supervisory responsibility of a federal court of appeals. At the panel level, the
court has supervisory authority over the district courts, the lawyers as officers
of the court, and the party litigants. It follows that at the en banc level, the
court, if by no other justification than necessity, must address irregularities in
the rule of orderliness, as the en banc Fourth Circuit carefully explained:

9 Joseph Heller, Catch 22 (Simon & Schuster 1961).
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No. 15-10615
The question of the binding effect of a panel opinion on subsequent
panels is of utmost importance to the operation of this court and the
development of the law in this circuit. Accordingly, before considering
the merits of [this case], we first address this important procedural
issue.
McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2009) (en banc) (footnote
omitted). That is so especially where the rule is applied in a manner so extreme
as to bind parties to concessions made on questions of law in unrelated cases.

This court’s supervisory power is so long- and well-established that cita-
tion is almost superfluous. A quick computer search produces myriad Fifth
Circuit decisions mentioning our “supervisory authority” or “supervisory
power[s].” This power includes authority over, inter alia, attorneys as officers
of the court and district judges who can be removed from cases for good rea-
son. 10 It follows naturally that this en banc court has ample supervisory au-
thority to refashion the rule of orderliness that applies to our own panels.

“The supervisory power of the appellate courts has long been estab-
lished.” 11 “The variety of situations in which [the supervisory power] has been
invoked defies any attempt to [define] which is at once comprehensive and
accurate . . . . The sole common denominator . . . is a desire to maintain and
develop standards of fair play in the federal courts . . . .” 12 “Through our super-

10 United States v. Jefferson, 623 F.3d 227, 232 (5th Cir. 2010) (Clement, J.) (“[T]he
United States Attorney remains subject to this court’s general supervisory powers [over] friv-
olous . . . appeals.); Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 938 (5th Cir. 2006)
(supervisory power to remove district judge from a case).
11 United States v. Hammond, 605 F.2d 862, 864 n.4 (5th Cir. 1979) (Goldberg, J.) (on
petition for rehearing).
12Note, the Judge-Made Supervisory Power of the Federal Courts, 53 GEO. L.J. 1050,
1050 (1965).
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No. 15-10615
visory powers, we ‘may, within limits, formulate procedural rules not specifi-
cally required by the Constitution or the Congress.’” 13 This can be, for example,
“to protect the integrity of the judicial process.” 14

It would be a rogue panel or district court indeed that would defy an
en banc refinement of the rule of orderliness, expressed in the exercise of
supervision, on the shaky ground that it is dictum. The point is that the
en banc majority should have tackled the issue in the interest of justice and
regularity. Its failure to do that is error.

Beyond the majority’s dereliction in abandoning the opportunity to refine
this court’s process in recognizing precedent, it is significant to examine the
aggressive rule that the majority blesses, albeit sub silentio. We can leave for
another day a general explication of how, in an ideal world, the rule of orderli-
ness should read. For the case at hand, we need only consider the extreme
formulation that the government urges and the majority accepts: that where,
as here, a party in an unrelated case has chosen, for whatever reason, to con-
cede a point of law, and that concession is included in a final holding or judg-
ment, the concession is binding, as a matter of law, on all courts and parties in
later cases. 15

A party can concede a legal issue for divers reasons. He could be pro se

United States v. Williams, 20 F.3d 125, 128 (5th Cir. 1994) (Goldberg, J.) (quoting
13

United States v. Hasting, 461 U.S. 499, 505 (1983)).
14 Hammond, 605 F.2d at 864.
15The same logic applies to the less obvious situation in which, in the prior case, an
alternate theory or claim, although not explicitly abandoned or conceded, is never raised or
even mentioned. The question there, as here, is whether a judgment denying relief on the
claim that is addressed precludes, via the rule of orderliness, a later, unrelated party from
making the additional claim that the first court never confronted.
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No. 15-10615
and unaware of the consequences of his concession. He could be represented
by incompetent counsel. His lawyer could decide that it is better to focus the
court on other perceptively more winnable issues, especially in light of the
length limitations for briefs. The party might wish to avoid disclosing embar-
rassing facts to the judge or jury by conceding the issue to which those facts
are relevant. Or a particular issue might be especially expensive or time-
consuming for him to develop. The point, however, is that he and only he
should suffer the consequences―or reap the benefits―of a decision to concede
a point of law, and the concession should be understood as not establishing a
legal precedent beyond the preclusive effect, as law of the case or res judicata,
on the parties to that proceeding in the case at hand or subsequent litigation.

The government, however, urges that we adopt the most expansive possi-
ble reading of the rule of orderliness: that a judgment that incorporates, by its
silence, a legal issue that is conceded by a party―indeed, even a pro se
party―will bind all future litigants in this court as though the issue had been
contested, briefed, considered, and explicitly ruled on by the original panel.
The reader might suggest that that overstates the government’s position. But
the government stood steadfast by that articulation of the rule of orderliness
in answering questions at en banc oral argument. Government counsel
explained,
The court is not bound to accept the concession of a party. . . . Panels
of the court need to have the ability and the authority to give guidance
and notwithstanding the fact that a litigant conceded an issue, the court
does not have to accept that concession. It can look beyond the conces-
sion and satisfy itself that the rule it is announcing is based in the law.
I think that is exactly what happened here with Nieto Hernandez.
Government counsel erred. That is not at all what occurred in Nieto
Hernandez. The reader will search, in vain, the briefs of Nieto Hernandez and

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No. 15-10615
the government for any discussion of the elements of Texas Penal Code
§ 46.04(a) or 18 U.S.C. § 922(g)(1). 16 It naturally follows that the Nieto
Hernandez panel made no explicit holding except that “[w]e hold that state
felon-in-possession offenses, such as TPC § 46.04(a), need not have an inter-
state commerce element in order for the offense to be an offense ‘described in’
18 U.S.C. § 922(g)(1).” Nieto Hernandez, 592 F.3d at 684. The panel added,
“We conclude, as we did in [United States v. Garza, 250 F. App’x 67, 71 (5th
Cir. 2007) (per curiam)], that Nieto’s offense under TPC § 46.04(a) fits within
8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony.’” At that point,
the panel appended the following footnote:
In his brief, Nieto concedes that his offense under TPC § 46.04(a)
fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of “aggravated fel-
ony” in every respect except for . . . an interstate commerce element.
TPC § 46.04(a) has two elements that are relevant to this decision:
(1) prior felony conviction and (2) possession of a firearm. 18 U.S.C.
§ 922(g)(1) has three relevant elements: (1) prior felony conviction;
(2) possession of a firearm; and (3) interstate commerce requirement.
Nieto concedes in his brief that TPC § 46.04(a)’s two elements corres-
pond with 18 U.S.C. § 922(g)(1)’s first two elements.
Nieto Hernandez, 592 F.3d at 686 n.6.

It is obvious that merely by acknowledging the defendant’s concession,
the Nieto Hernandez panel did not―in the words of government counsel quoted
above―“look beyond the concession and satisfy itself that the rule it is an-
nouncing is based in the law.” Nonetheless, applying its extreme version of the
rule of orderliness, the government, in its en banc brief, posits that “Nieto-
Hernandez [sic] remains binding as to its holding that the substantive element
of firearm possession is the same under Section 46.04 and Section 922(g)(1).”

16 Except for the interstate-commerce element of the latter.
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No. 15-10615
Application of the government’s rule to Nieto Hernandez undermines the
sound decision of the panel not to convert his concession into a holding. The
issue was neither briefed nor argued. Traditionally in our adversarial system
of justice, parties raise issues and give reasons for their respective points of
view; judges examine those submissions and declare the winners based on the
issues that are still contested. If a party fails to raise an issue or―for whatever
reason―explicitly waives it, he suffers any consequences from that choice or
from his inadvertence. In these circumstances, that is to Nieto Hernandez’s
detriment. The panel in his case did not decide the issue, and Castillo-Rivera
should have been free to bring it and to have it decided as though no prior party
had ever waived, abandoned, or failed to raise it. And that is the result that
has obtained under the better understanding of this court’s rule of orderliness.
That is, until now. By declining to take the fork in the road―that is, by
refusing to address and decide one of the two questions on which the court
decided to rehear this case en banc―the court, in effect, installs the govern-
ment’s articulation of the rule of orderliness in terms more specific and onerous
than ever before, and does so without justification or explanation.

The government’s position is, at once, both smug and convenient: smug,
in that the government says that the matter is not even worthy of considera-
tion, urging that this court “should stay the course and continue to trust the
systems of review currently in place.” In other words, “Move along, folks, noth-
ing to see here.” 17 And convenient, in that the rule it brandishes is rigged to
favor itself and parties in a similar position.

17 “An ironic or sarcastic phrase uttered by a person who feels that he/she has detected
a hidden, usually unpleasant or sinister, deeper meaning of a story . . . [that he/she] wishes
to conceal possibly to avoid upsetting the general public.”
http://www.urbandictionary.com/define.php?term=nothing%20to%20see%20here.
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No. 15-10615
A rule of procedure that flatly bars parties from raising issues that were
“decided” by default or inadvertence in prior, unrelated cases will almost
always favor the government and disfavor the criminal defendant. 18 It is gen-
erally the defendant who raises defenses to prosecution and makes objections
to enhancements and other aspects of the sentence. In an adversarial system,
the defendant benefits from coming up with defenses that have never been
ruled upon or new arguments that no previous defendant has ever articulated.

The government, on the other hand, benefits from having as many
arguments as possible foreclosed by precedent, waiver, or abandonment. 19
How convenient it is for the government to say that a particular theory that
was never adversarily tested is nonetheless unavailable to the instant
defendant because some hapless defendant conceded that issue in the recent
or distant past. That approach to precedent does indeed “stay the course and
continue . . . the systems of review currently in place.”

The question is whether the government sees its role as doing justice or
winning at all cost. How is it fair to cut off resourceful attorneys from making
good-faith arguments that no court has ever addressed, seriously considered,
or decided? The majority does not say.

As the Institute for Justice comprehensively shows in its en banc brief
as amicus curiae, this methodological flaw infects the arena of civil litigation,

18The same disadvantage accrues to a civil plaintiff who wishes to advance claims
that an unrelated plaintiff, in a previous case, conceded or otherwise failed to advance.
I address the civil side of the docket below.
19In its opposition to Castillo-Rivera’s petition for rehearing en banc, the government
summarizes its rule as this: “Arguments considered or not considered in the prior panel’s
resolution of the issue are irrelevant to a future panel because the issue has been decided.”
In its amicus brief, the Institute for Justice appropriately calls the government’s rule “the
sweeping precedent rule.”
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No. 15-10615
as well: “Parties should not be bound by the strategic decisions of past litigants
to waive certain arguments. Judges should not be forced to choose between
conducting enhanced, corrective en banc review versus grappling with un-
briefed, unraised arguments in every opinion just to ensure that en banc cor-
rection will not be necessary.” And more: “The constitutional rights of every
American will be better protected if those rights are decided squarely on a case-
by-case basis, rather than being implicitly ruled upon simply because they
lurked in the background of a previous case.” 20

“The premise of our adversarial system is that appellate courts do not sit
as self-directed boards of legal inquiry and research, but essentially as arbiters
of legal questions presented and argued by the parties before them.” NASA v.
Nelson, 562 U.S. 134, 147 n.10 (2011) (Alito, J.). The contrary notion―that
waived or abandoned issues nevertheless should be deemed “decided” and
binding―should be the easiest to discard because of its abject unfairness and
its irrationality as a manner of decisionmaking by an adversarial, common-law
court. Yet the majority declines to reject or even discuss it.

Refusing to take this fork in the road is the easy way, but not the right
one. I respectfully dissent.

20 And more still:
To be sure, litigants are bound by the holdings of courts in cases to which they
were not parties. But that is a far cry from saying litigants can be bound by the
tactical choices of individual parties with whom they are not in privity. A party can
waive an argument for any number of reasons, from tactical considerations to ideo-
logical preferences to simple incompetence. To impose that decision on a party with
a different view of tactics or ideology (or a different level of competence) deprives
that party of important due-process rights.
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No. 15-10615
JAMES L. DENNIS, Circuit Judge, joined by STEWART, Chief Judge, and
SMITH, PRADO, and GRAVES, Circuit Judges, and joined with respect to Part
I only by HIGGINSON and COSTA, Circuit Judges, dissenting:
Juan Castillo-Rivera provides two independently sufficient grounds
establishing that Texas Penal Code (TPC) § 46.04 is broader than 18 U.S.C.
§ 922(g)(1) and that his prior conviction under TPC § 46.04 is therefore not an
aggravated felony under the sentencing guidelines. First, he shows that the
state law definition of “felony” is broader than the federal law definition.
Second, he demonstrates that the state law definition of “firearm” is broader
than the federal law definition. The majority opinion does not dispute Castillo-
Rivera’s contentions. Instead, it purports to rely on Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007), in holding that Castillo-Rivera has failed to
point to a state court decision that applies the state law in the manner for
which he argues. In truth, however, the majority opinion relies on its own
distorted version of Duenas-Alvarez’s rule, stretching it far beyond its original
meaning and inserting additional requirements of the majority’s own creation.
I respectfully dissent.
I. The Definition of “Felony”
Castillo-Rivera’s first contention is that the Texas offense of unlawful
possession of a firearm by a felon, TPC § 46.04, is broader than its federal
counterpart, 18 U.S.C. § 921(g), due to the state offense’s much more expansive
definition of “felony.” Under TPC § 46.04(f):
an offense under the laws of this state, another state, or the United
States is . . . a felony if, at the time it is committed, the offense: (1)
is designated by the law of this state as a felony; (2) contains all
the elements of an offense designated by a law of the state as a
felony; or (3) is punishable by confinement for one year or more in
a penitentiary.

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No. 15-10615
(emphasis added). The federal statute, 18 U.S.C. § 922(g)(1), makes the
possession of a firearm unlawful only for those convicted of “a crime punishable
by imprisonment for a term exceeding one year.”
The majority opinion does not dispute that the state’s definition of
“felony” for purposes of TPC § 46.04 is broader by its plain language than the
comparable terms of 18 U.S.C. § 922(g)(1). 1 But the majority opinion holds
that Castillo-Rivera nevertheless fails to establish that the state’s definition is
broader than the federal one because he does not point to a state decision that
illustrates that point. It cites Duenas-Alvarez for the proposition that a
defendant must do so in all cases in order to establish a “realistic probability”
that the state would apply its law in a way that falls outside of the scope of the
relevant federal offense. 2 Duenas-Alvarez did not so hold.
In Duenas-Alvarez, the defendant argued that his prior California
conviction for theft and unlawful driving or taking of a vehicle under California

1 At one point, the majority opinion disingenuously characterizes Castillo-Rivera’s
undisputed construction of TPC § 46.04(f) as a “plausible interpretation of statutory text,”
Maj. Op. at 5, as if anyone could argue that Texas’s elaborate definition of “felony” actually
includes only crimes punishable by more than one year in prison. This is plainly false.
Consider, for instance, the federal misdemeanor offense of simple possession of heroin or
cocaine, 21 U.S.C. § 844, which is punishable by one year in prison for a first-time offender
and “contains all the elements of” a Texas felony under Texas Health & Safety Code
§ 481.115(a) and therefore counts as a felony under TPC § 46.04(f)’s definition. Even the
Government concedes in its brief on appeal that, “the definitions in subsection (f)(2) and (3)
of TPC § 46.04 are broader than the federal definition.”
2 While relying exclusively on Duenas-Alvarez, the majority opinion also provides a

“see also” citation to conclusory, postscript dicta in Moncrieffe v. Holder, 133 S. Ct. 1678, 1693
(2013). The cursory statement in Moncrieffe is not the kind of detailed analysis of the law
that we have found persuasive. See United States v. Krohn, 700 F.2d 1033, 1037 (5th Cir.
1983) (the Supreme Court “does not decide important questions of law by cursory dicta
inserted in unrelated cases” (quoting In re Permian Basin Area Rate Cases, 390 U.S. 747, 775
(1968)); cf. Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (stating, “we give
serious consideration to this recent and detailed discussion of the law by a majority of the
Supreme Court” and finding it persuasive “[b]ased on the depth of the Court’s treatment of
the issue”).
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Vehicle Code § 10851 was not a generic theft offense because: (1) the statute
allows for the conviction of aiders and abettors; (2) California courts hold aiders
and abettors liable for any crime that “naturally and probably” results from
their intended crimes; and (3) California’s judicial “natural and probable
consequences” doctrine is broader than that of other jurisdictions in that it
makes an aider-and-abettor defendant criminally liable for conduct that the
defendant did not intend, “not even as a known or almost certain byproduct of
the defendant’s intentional acts.” Duenas-Alvarez, 549 U.S. at 190–91. To that
argument, the Supreme Court responded that “to find that a state statute
creates a crime outside the generic definition of a listed crime in a federal
statute requires more than the application of legal imagination to a state
statute’s language.” Id. at 193. Rather, an offender must show “a realistic
probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime. To show that
realistic probability, an offender . . . must at least point to his own case or other
cases in which the state courts in fact did apply the statute in the special
(nongeneric) manner for which he argues.” Id.
Duenas-Alvarez does not defeat Castillo-Rivera’s claim. Duenas-Alvarez
is concerned with the defendant who tries to demonstrate that a statute is
overbroad by hypothesizing that it might be applied in some fanciful or
unlikely way—through “the application of legal imagination.” Castillo-Rivera
is not relying on “the application of legal imagination” to establish that TPC
§ 46.04(a) is overbroad; he is relying on the statute’s plain language. As the
Ninth Circuit has explained:
Where . . . a state statute explicitly defines a crime more broadly
than the generic definition, no “legal imagination” is required to
hold that a realistic probability exists that the state will apply its

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No. 15-10615
statute to conduct that falls outside the generic definition of the
crime. The state statute’s greater breadth is evident from its text.
United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (citation
omitted) (quoting Duenas-Alvarez, 549 U.S. at 193).
This approach is consistent with the Supreme Court’s instructions in
Taylor v. United States, 495 U.S. 575 (1990), in which the Court established
the categorical approach to determine whether a prior state offense constitutes
a generic or other listed offense for purposes of federal law. Taylor directs that,
when applying the categorical approach, we evaluate “the elements of the
statute of conviction,” i.e., the “statutory definition” of the prior offense. 495
U.S. at 601–02. Of course, state prosecutors’ discretionary decisions whether
or not to prosecute an offense under certain circumstances cannot add statutory
elements to statutes that plainly do not contain those elements. Cf. United
States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) (holding
that the Maryland crime of resisting arrest was not a crime of violence despite
the lack of showing that anyone has ever been convicted of the offense without
using force and observing, “It may be that Maryland prosecutors tend to charge
too many offenders with resisting arrest when they could charge far more
serious crimes, or it may be that we have a skewed universe of cases from the
hundreds of resisting arrest convictions sustained each year. Either way, it
does not really matter because the key is elements, not facts, and violent force
is simply not an element of resisting arrest in Maryland.” (citation and
internal quotation marks omitted)).
Viewed in this context, it is clear that Duenas-Alvarez does not, as the
majority opinion holds, require a defendant to disprove the inclusion of a
statutory element that the statute plainly does not contain using a state case.
Taylor itself illustrates this point. In that case, the Supreme Court considered

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whether a defendant’s prior Missouri convictions constituted generic burglary
for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Taylor, 495
U.S. at 577–79. The Court noted that, at the time, Missouri had several
different statutes criminalizing burglary, not all of which included all the
elements of generic burglary. Id. at 578 n.1, 602. For instance, one of the
relevant statutes prohibited the breaking and entering of a “building, booth,
tent, boat, or railroad car,” id. at 578 n.1 (citing MO. REV. STAT. § 560.070
(1969) (repealed)), whereas the generic offense pertains only to the entry of a
“building or structure,” id. at 599. The Court therefore remanded the case for
a determination of which of the Missouri burglary statutes were the bases for
the defendant’s prior convictions. Id. at 602. Of crucial relevance here, the
Supreme Court did not require the defendant to produce a Missouri state case
to establish that the state’s burglary statutes criminalized the breaking and
entering of a boat or railroad car. See id.
We have followed suit. For instance, we did not require a state case in
order to conclude, on plain error review, that a Florida statute criminalizing
consensual sexual activity with a seventeen-year-old does not require use of
force as an element of the offense. See United States v. Chavez-Hernandez, 671
F.3d 494, 499 (5th Cir. 2012). Similarly, we did not require a state case to
establish that the relevant California statutory definition of “minor” as “a
person under the age of 18 years” includes persons over the age of sixteen. See
United States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir. 2008).
The majority opinion’s broad holding that a defendant must in all cases
point to a state case to illustrate the overbreadth of the state offense overrules
a legion of cases while refusing to even acknowledge their existence. See, e.g.,
United States v. Martinez-Romero, 817 F.3d 917, 923 (5th Cir. 2016)
(concluding that Florida’s kidnapping statute does not require substantial
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interference with the victim’s liberty because text of the statute included no
reference to such a requirement); Chavez-Hernandez, 671 F.3d at 499 (“On its
face, [the defendant’s] offense does not qualify under the physical force portion
of the definition because the Florida statute does not include the use of force
as an element of the offense.” (emphasis added)); United States v. Najera-
Mendoza, 683 F.3d 627, 630 (5th Cir. 2012) (relying solely on the language of
an Oklahoma kidnapping statute to conclude that it does not meet the generic
definition of kidnapping); United States v. Ortiz-Gomez, 562 F.3d 683, 685–87
(5th Cir. 2009) (holding that a Pennsylvania “terroristic-threats” offense was
not a “crime of violence” based on the language of the statute and without
requiring a state decision on point); United States v. Constante, 544 F.3d 584,
585, 587 (5th Cir. 2008) (relying on the language of TPC § 30.02(a) to conclude
that it does not contain as an element the necessary mens rea to constitute
generic burglary); Lopez-DeLeon, 513 F.3d at 475; United States v. Lopez-
Salas, 513 F.3d 174, 178 (5th Cir. 2008) (relying on the language of the relevant
state statute to conclude that it does not include as an element the necessary
mens rea to constitute a drug trafficking offense); United States v. Ortega-
Gonzaga, 490 F.3d 393, 394 (5th Cir. 2007) (relying on the language of a
California burglary statute to conclude that it did not require unprivileged
entry and therefore did not constitute generic burglary); see also United States
v. Martinez, 595 F. App’x 330, 334 (5th Cir. 2014) (“[W]e have found the
realistic possibility requirement met without the benefit of a specific state
decision on point in circumstances where the plain language of the statute
clearly criminalized conduct outside of the [relevant generic] offense.” (citing
Ortiz-Gomez, 562 F.3d at 685–87)).
Nor does the majority opinion address or even acknowledge that its
holding directly conflicts with holdings from the First, Third, Sixth, Ninth, and
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Eleventh Circuits, all of which have recognized the limits of Duenas-Alvarez’s
requirement. See Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) (“Simply put,
the plain terms of the Rhode Island drug schedules make clear that the Rhode
Island offense covers at least one drug not on the federal schedules. That
offense is simply too broad to qualify as a predicate offense under the
categorical approach, whether or not there is a realistic probability that the
state actually will prosecute offenses involving that particular drug.”); Vassell
v. U.S. Attorney Gen., 839 F.3d 1352, 1362 (11th Cir. 2016) (“Duenas-Alvarez
does not require this showing when the statutory language itself, rather than
‘the application of legal imagination’ to that language, creates the ‘realistic
probability’ that a state would apply the statute to conduct beyond the generic
definition.”); Singh v. Attorney Gen., 839 F.3d 273, 286 (3d Cir. 2016) (“The BIA
erred in conducting a ‘realistic probability’ inquiry” because “[h]ere, the
elements of the crime of conviction are not the same as the elements of the
generic federal offense” and “[t]he Supreme Court has never conducted a
‘realistic probability’ inquiry in such a case”); United States v. Grisel, 488 F.3d
844, 850 (9th Cir. 2007) (en banc) (“Where . . . a state statute explicitly defines
a crime more broadly than the generic definition, no “legal imagination” is
required to hold that a realistic probability exists that the state will apply its
statute to conduct that falls outside the generic definition of the crime.”);
Mendieta-Robles v. Gonzales, 226 F. App’x 564, 572 (6th Cir. 2007) (the
Government’s legal-imagination argument fails because “it requires us to
ignore the clear language” of the statute).
Thus, the majority opinion’s unqualified rule that a defendant must in
all cases point to a state court decision to illustrate the state statute’s breadth
misconstrues Duenas-Alvarez, directly conflicts with Taylor, and ignores both
our established circuit precedent and the holdings of several of our sister
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circuits. Castillo-Rivera has shown that TPC § 46.04’s definition of “felony” is
broader than the federal definition, and the state offense therefore covers
conduct outside the scope of 18 U.S.C. § 922(g)(1). Accordingly, Texas’s felon-
in-possession-of-a-firearm offense is not “described in” 18 U.S.C. § 922(g)(1)
and does not constitute an aggravated felony. See 8 U.S.C. § 1101(a)(43)(E)(ii);
U.S.S.G. § 2L1.2 cmt. n.3(A).
II. The Definition of “Firearm”
Castillo-Rivera’s second contention is that the Texas felon-in-possession-
of-a-firearm offense is broader than the federal one because of the more
expansive state definition of “firearm,” which can include even air guns. He
notes that Texas law defines a “firearm” as “a device designed, made or adapted
to expel a projectile through a barrel by using the energy generated by an
explosion or burning substance,” TPC § 46.01(3) (emphasis added), whereas
federal law defines “firearm,” as relevant here, as “any weapon . . . which will
or is designed to or may readily be converted to expel a projectile by the action
of an explosive,” 18 U.S.C. § 921(a)(3) (emphasis added).
Here, Castillo-Rivera does not argue that the relative overbreadth of the
state offense is plain from its text. He must therefore show a “realistic
probability” that the state would apply the statute to conduct that is not
covered by the federal offense, by pointing to “his own case or other cases in
which the state courts in fact did apply the statute in the special manner for
which he argues.” Duenas-Alvarez, 549 U.S. at 193. He does just that.
Castillo-Rivera points to the Texas appellate court decision in Boston v.
State, No. 05-96-00832-CR, 1998 WL 19938 (Tex. App. Jan. 22, 1998)
(unpublished). In Boston, the defendant was convicted of aggravated assault
of a peace officer after he pointed an air rifle at an officer. Id. at *1. To support
his conviction, the State had to prove that the defendant’s air rifle was a
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“firearm” and therefore qualified as a “deadly weapon.” See id. In determining
whether the defendant’s air rifle was a “firearm” for purposes of the
defendant’s offense, the court utilized the definition of “firearm” in TPC
§ 46.01(3). 3 See id. at *2. The state court held that there was sufficient
evidence to conclude that the defendant’s air rifle constituted a “firearm”
within the meaning of TPC § 46.01(3) because the release of compressed air
constituted an “explosion,” and it therefore affirmed his conviction. 4 Id. (under
TPC § 46.01(3) “a firearm is any device designed, made, or adapted to expel a
projectile through a barrel by using the energy generated by an explosion or
burning substance. The firearms examiner testified that there is an explosion
. . . whenever the compressed air in an air rifle is released” (emphasis in
original)). Castillo-Rivera has thus pointed to a state case holding that the
state law definition of “firearm” controlling his offense of conviction can include
air rifles.
Unlike the Texas definition, the federal definition, which requires the
action of an “explosive,” 18 U.S.C. § 921(a)(3), “self-evidently does not include
an air rifle . . . [that] operates by compressed air.” United States v. Crooker,
608 F.3d 94, 96 (1st Cir. 2010); see also United States v. Housholder, No. 15-
3146, 2016 WL 6595898, at *2 (10th Cir. Nov. 8, 2016) (unpublished) (an air
gun is not a firearm). Thus, the court in Boston actually applied a statutory

3 TPC § 46.01(3)’s definition of “firearm” expressly applies only to weapons offenses,
but Texas courts have long used this definition to determine whether a particular weapon
counts as a “firearm” in the context of offenses involving the use of a “deadly weapon.” See,
e.g., DeAnda v. State, 769 S.W.2d 522, 524 (Tex. Crim. App. 1989); Vaughn v. State, 600
S.W.2d 314, 315 (Tex. Crim. App. 1980).
4 Boston is not the only Texas case to hold that an air gun or an air rifle can be a

firearm. In Shelton v. State, 10 S.W.3d 689, 696 (Tex. App. 1999), another state appellate
court applied the definition of firearm in TPC § 46.01(3) to reject a defendant’s argument that
his air gun was not a firearm and therefore affirmed the defendant’s conviction for
aggravated robbery.
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provision that Castillo-Rivera challenges as overbroad, and it did so in a way
that federal law would not have allowed; Mr. Boston is currently serving a
protracted prison sentence as a direct result of that application.
Faced with Boston, the majority opinion again utilizes a mutated version
of Duenas-Alvarez to save the day and hold that Castillo-Rivera fails to make
the required showing. First, the majority opinion states that “Boston did not
hold as a matter of law that the Texas definition of firearm includes air guns”
but instead merely “made a sufficiency-of-the-evidence determination.” Maj.
Op. at 13. Thus, the majority opinion continues, “the court did not decide if an
air gun is a firearm under TPC § 46.01.” Id. (emphasis in original).
Respectfully, this reasoning is nonsensical. The Boston court concluded
that “the evidence [was] legally sufficient to prove the air rifle used in this case
was a firearm, as that term is defined in chapter 46,” based on testimony that
“there is an explosion . . . whenever the compressed air in an air rifle is
released” and the statutory definition, under which a device qualifies as a
firearm if it is designed to expel a projectile “by using the energy generated by
an explosion or burning substance.” 1998 WL 19938, at *2 (emphasis in
original). This is a legal determination par excellence: the court concluded that
TPC § 46.01’s definition of “firearm” can include air guns. How else could the
court find that the evidence was “legally sufficient”? See id. There is no
requirement that the relevant state case hold that the particular
circumstances the defendant suggests will always, “as matter of law,” satisfy
state law requirements; it simply has to illustrate that they can. See Duenas-
Alvarez, 549 U.S. at 193.
Next, the majority opinion contends that Boston “had nothing to do with
TPC § 46 whatsoever” and “did not deal with TPC § 46.04 at all.” Maj. Op. at
13. This contention is disingenuous. The Boston court’s construction of TPC
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§ 46.01(3)’s definition of “firearm” determined the outcome of that case, and
that specific provision provides an integral part of Castillo-Rivera’s statute of
conviction, TPC § 46.04. See 1998 WL 19938, at *2. As previously explained,
Texas courts commonly use this definition to determine whether a particular
weapon counts as a “firearm” in the context of offenses involving the use of a
“deadly weapon.” See, e.g., DeAnda, 769 S.W.2d at 524; Vaughn, 600 S.W.2d
at 315.
The Supreme Court has required that the defendant point to a case “in
which the state courts in fact did apply the statute in the special . . . manner
for which he argues.” See Duenas-Alvarez, 549 U.S. at 193. Castillo-Rivera
points to a state appellate court case that held that TPC § 46.01(3)’s definition
of “firearm,” which governs his TPC § 46.04 offense, can include air rifles and
therefore affirmed an air-rifle-wielding defendant’s conviction. Nothing more
is required. See Castillo v. Holder, 776 F.3d 262, 268 (4th Cir. 2015) (“[T]o the
extent that the statutory definition of the prior offense has been interpreted by
the state’s appellate courts, that interpretation constrains our analysis of the
elements of state law.” (citation and internal quotation marks omitted)); see
also De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (similar).
Accordingly, the state statute’s definition of “firearm” is broader than the
federal definition, and the state offense therefore covers conduct outside the
scope of the federal offense. For this reason, too, TPC § 46.04 is not “described
in” 18 U.S.C. § 922(g)(1) and does not constitute an aggravated felony.
***
TPC § 46.04 is broader than its federal counterpart for two
independently sufficient reasons. The majority opinion ignores this and
attempts to veil its misguided analysis with Duenas-Alvarez, but that case

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simply does not support the majority opinion’s holding. I therefore respectfully
dissent.

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STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting
in part:

I concur in Section III.B of the majority opinion, in Section I of Judge
Dennis’s dissenting opinion, and in full in Judge Smith’s dissenting opinion.
Because “felony” under Texas Penal Code § 46.04 is defined more broadly than,
hence not “defined in,” 18 U.S.C. § 922(g)(1), I agree with Judge Dennis’s
dissenting opinion that Texas Penal Code § 46.04 cannot be an “aggravated
felony” under the Sentencing Guidelines. Although I have applied the
“realistic-probability” test announced in Duenas-Alvarez, 1 I agree with Judge
Dennis’s dissenting opinion that this added showing is unnecessary when a
state statute is facially broader than its federal analog.
Fundamentally, this case highlights the incongruities inherent in the
categorical approach. Congress did not intend to subject all federal felons in
possession of a firearm to a recidivist sentencing enhancement but to include
none from Texas. This paradoxical result—what scholars call the “windfall”
problem—is a consequence of the judicially crafted categorical framework,
which cannot be harmonized with congressional intent, and thus
unsurprisingly continues to trouble courts, including the Supreme Court.
Compare Descamps v. United States, 133 S. Ct. 2276 (2013), with Mathis v.
United States, 136 S. Ct. 2243 (2016). Our ongoing struggle to apply the
categorical approach while respecting the congressional purpose to enhance
punishment for similar recidivists may justify Supreme Court intervention yet

1As the author of United States v. Lara-Martinez, I question how this decision stands
for the rule that a defendant must always point to a state-court case as evidence of a state
crime’s broader sweep. 836 F.3d 472 (5th Cir. 2016). In Lara-Martinez, we addressed a state
statute that was plainly narrower than the comparable categorical offense. Id. at 476
(contrasting the categorical crime of violence of “sexual abuse of a minor,” where federal law
defines “minor” as a person under 18, with Missouri’s offense of “sexual misconduct involving
a child,” where Missouri defines “child” as a person under 15).
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again. See Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (“[C]ontinued
congressional inaction in the face of a system that each year proves more
unworkable should require this Court to revisit its precedents in an
appropriate case.”). In the meantime, it is further unsurprising that courts
will stretch the realistic-probability test of Duenas-Alvarez more and more to
bridge the chasm between congressional intent and judicial doctrine.
The Supreme Court has not yet addressed the elasticity we face here: is
the realistic-probability test of Duenas-Alvarez not only a means of
interpreting an ambiguous state statute, but the rule in every case? In both
Mathis and Taylor, however, the Court has at least suggested it’s not. Mathis,
136 S. Ct. at 2250 (finding Iowa’s burglary statute broader than generic
burglary based only on its text without resort to Iowa caselaw); Taylor v.
United States, 495 U.S. 575, 559-600 (1990) (finding Missouri’s second-degree
burglary statute broader than generic burglary based only on its text without
resort to Missouri caselaw). I am apprehensive that the majority’s absolute
requirement in every case 2—a rule Judge Dennis’s dissenting opinion
demonstrates is in tension with at least four other circuits and also conflicts
with considerable precedent of our own 3—additionally places an impractical
burden on defendants without access to the required information. With most
criminal prosecutions ending in plea agreements and putative charges driving

2 “[A] defendant must point to an actual state case applying a state statute in a
nongeneric manner, even where the state statute may be plausibly interpreted as broader on
its face.” Majority Op. at 8 n.3.
3 See also United States v. Najera-Mendoza, 683 F.3d 627, 630 (5th Cir. 2012) (finding

Oklahoma’s kidnapping statute broader than generic kidnapping based only on its text
without resort to Oklahoma caselaw); United States v. Bonilla, 524 F.3d 647, 654-55 (5th Cir.
2008) (finding New York’s attempted manslaughter statute broader than generic
manslaughter based only on its text without resort to New York caselaw); United States v.
Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006) (finding Texas’s aggravated assault statute
broader than generic assault based only on its text without resort to Texas caselaw).
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plea negotiations, the conduct states define as criminal may not be expressed
in appellate-level decisions, and the evidence required to satisfy the majority’s
rule may thus be unavailable.

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