Case: 18-10047 Document: 00515096169 Page: 1 Date Filed: 08/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10047 FILED
Summary Calendar August 28, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RODNEY DEWAYNE MITCHELL,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-441-1
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Rodney Dewayne Mitchell challenges the 180-month sentence imposed
following his pleading guilty to having possessed a firearm after having
previously been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The
district court imposed this statutory minimum sentence under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on Mitchell’s three
aggravated-robbery convictions, under Texas Penal Code § 29.03(a). He claims
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 18-10047
this was erroneous because the Texas statute lacks use of force as an element.
He also presents other contentions regarding the interaction between
§ 29.03(a) and § 29.02(a), Texas’ robbery statute. These contentions are
implicated only if § 29.03 is indivisible under Mathis v. United States, 136 S.
Ct. 2243 (2016).
Whether an offense qualifies as an ACCA violent felony is reviewed de
novo. United States v. Massey, 858 F.3d 380, 382 (5th Cir. 2017). Our court’s
precedent forecloses these claims.
Texas’ aggravated robbery statute is divisible under Mathis, and a
conviction for aggravated robbery while using or exhibiting a deadly weapon,
§ 29.03(a)(2), is a violent felony under the ACCA’s use-of-force clause,
§ 924(e)(2)(B)(i). United States v. Lerma, 877 F.3d 628, 634–36 (5th Cir. 2017),
cert. denied, 138 S. Ct. 2585 (2018). Because Lerma establishes § 29.03(a)’s
divisibility, it is unnecessary to reach Mitchell’s additional claims regarding
Texas’ robbery statute, § 29.02(a), which, in any event, our court has also
rejected. See United States v. Burris, 920 F.3d 942, 945, 948 (5th Cir. 2019)
(holding Texas’ robbery statute, §29.02(a), requires use of physical force and
constitutes ACCA predicate offense). Although he claims our court’s decision
in United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), conflicts
with these holdings, that decision has been vacated in the light of Quarles v.
United States, 139 S. Ct. 1872 (2019). United States v. Herrold, 139 S. Ct. 2712
(2019).
Mitchell also claims Texas’ robbery statute, § 29.02(a), does not
constitute a qualifying robbery offense, pursuant to Stokeling v. United States,
139 S. Ct. 544, 553 (2019) (discussing requisite level of force), because it does
not require the degree of “physical force” the ACCA does. See 18 U.S.C.
§ 924(e)(2)(B)(i). Because robbery is an element of his aggravated-robbery
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No. 18-10047
convictions, see Tex. Penal Code § 29.03(a), he therefore contends these
convictions are not ACCA predicates.
He did not, however, raise this issue until his reply brief on appeal. Our
court normally does not consider such belated claims. See United States v.
Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006). Although this rule does
not apply “when a new issue is raised in the appellee’s brief and the appellant
responds in his reply brief”, United States v. Ramirez, 557 F.3d 200, 203 (5th
Cir. 2009), the Government’s brief did not raise the issue of the kind of force
required. Nor was this contention unavailable prior to Stokeling. See, e.g.,
Johnson v. United States, 559 U.S. 133, 138–41 (2010) (construing “physical
force” as used in the ACCA). Accordingly, we decline to address this issue.
Under the modified categorical approach applicable here, see Lerma, 877
F.3d at 634–35, it is apparent from the indictments that each of Mitchell’s
three aggravated-robbery convictions involved his using or exhibiting a deadly
weapon, in violation of Texas Penal Code § 23.03(a)(2).
AFFIRMED.
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