United States v. Charles Campbell

Case: 17-50383 Document: 00515112259 Page: 1 Date Filed: 09/10/2019

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-50383 FILED
September 10, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

CHARLES CAMPBELL,

Defendant - Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:16-CV-623

Before DENNIS,* CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Before the court is a § 2255 motion filed by Charles Campbell. He argues
that his sentence is unconstitutional because neither his two previous burglary
convictions nor his two previous robbery convictions are violent felonies under
the Armed Career Criminal Act (ACCA). We reject both arguments.

* Concurring in the judgment only.
* 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should not be published and is not precedent except under the limited circumstances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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I.
In 2007, a jury convicted Campbell for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The sentencing
court imposed an enhancement under the ACCA based on four prior violent
felony convictions. It found that Campbell’s two Texas burglary convictions fell
within the ACCA’s enumerated-offenses clause and that his two Texas robbery
convictions fell within the ACCA’s residual clause. Campbell was sentenced to
210 months of imprisonment followed by five years of supervised release. 1
Campbell filed three unsuccessful § 2255 motions in 2010. The first was
rejected as untimely, while the latter two were rejected as improper successive
petitions. Then, in 2015, the Supreme Court held that the residual clause of
the ACCA was unconstitutionally vague in violation of the Fifth Amendment.
Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The following year, the
Court concluded that its holding in Johnson announced a new rule of
substantive law that could be applied retroactively to cases on collateral
review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Campbell then
received permission to file a fourth § 2255 petition, arguing “that in light of
Johnson, his prior Texas convictions for robbery and robbery with assault no
longer qualify as violent felonies under the ACCA.”
That is one of the issues to resolve here, but there is also a second
question. In 2018, while Campbell’s § 2255 motion based on the robbery
convictions was pending, this court decided in United States v. Herrold that no
Texas burglary conviction can qualify as a violent felony under the ACCA’s

1 Although Campbell was released from prison on July 19, 2019, his petition
continues to present a live case or controversy because, if Campbell does not qualify
as a career offender under the ACCA, the maximum term of supervised release which
could have been imposed for this Class C felony conviction would have been three
years. 18 U.S.C. § 3583(b)(2).

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No. 17-50383
enumerated-offenses clause. 883 F.3d 517, 537 (5th Cir. 2018) (en banc). The
government conceded that Herrold prevented Campbell’s burglary convictions
from qualifying as violent felonies under the enumerated-offenses clause. 2
After Herrold, Campbell moved this court to expand the certificate of
appealability granted by the district court to consider whether his burglary
convictions continue to qualify as ACCA predicate offenses. This court granted
the motion, but specifically instructed the parties to address whether this court
has jurisdiction to entertain the burglary argument in light of the rules
governing successive habeas applications.
After reviewing those arguments under recent circuit precedent, we
conclude that we lack jurisdiction to consider Campbell’s collateral attack on
the use of his burglary convictions to enhance his sentence. We address that
part of the petition before addressing Campbell’s robbery convictions.
II.
This court reviews a legal challenge to an ACCA-enhanced sentence de
novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). The defendant
bears the burden to prove he is entitled to relief when collaterally attacking
the judgment. Coon v. United States, 441 F.2d 279, 280 (5th Cir. 1971).
III.
“If the district court did not have jurisdiction to reach the merits,
naturally, we cannot reach the merits on appeal.” United States v. Wiese, 896
F.3d 720, 723 (5th Cir. 2018), as revised (Aug. 14, 2018). “A second or successive
habeas application must meet strict procedural requirements before a district

2The Supreme Court subsequently granted certiorari in Herrold, vacated the
judgment, and remanded for further proceedings in light of its decision in Quarles v.
United States, 139 S. Ct. 1872 (2019). United States v. Herrold, No. 17-1445, 2019 WL
2493911, at *1 (U.S. June 17, 2019). This court is currently reconsidering Herrold en
banc.

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No. 17-50383
court can properly reach the merits of the application.” Id. Among other things,
the prisoner must prove that his claim is based on a “new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court.” 28
U.S.C. § 2255(h)(2).
Plainly, Herrold cannot supply this basis, since our Herrold decision has
been vacated by the Supreme Court and no longer exists. But Campbell also
attempts to base his successive habeas motion on Johnson. Campbell can only
rely on Johnson, however, if he can show “that it was more likely than not that
he was sentenced under the residual clause.” United States v. Clay, 921 F.3d
550, 559 (5th Cir. 2019), as revised (Apr. 25, 2019). Campbell cannot make that
showing.
Both the government and Campbell agree that the sentencing court
found Campbell’s burglary convictions were violent felonies under the
enumerated-offenses clause of the ACCA, not under the residual clause. But
Campbell’s burglary convictions would also have counted as violent felonies
under the residual clause. So Campbell argues that, before he would have been
entitled to relief from the ACCA enhancement, he needed to show that the
convictions did not qualify under either the enumerated-offenses clause or the
residual clause. In Campbell’s view, his § 2255 motion relies as much on
Johnson as it does on Herrold.
Our circuit has rejected such an attenuated reading of the statute. That
a defendant’s prior conviction would have also been considered a violent felony
under the residual clause is insufficient by itself to show that the sentencing
court “more likely than not” relied on the residual clause. See Clay, 921 F.3d
at 558. The statute requires more, after all, than “a theoretical possibility.”
Wiese, 896 F.3d at 726. To determine potential reliance on the residual clause,
we look at the sentencing record “for direct evidence of a sentence,” and we look

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at “the relevant background legal environment that existed at the time of the
defendant’s sentencing” that may have informed the sentencing court’s
decision. Id. at 725 (cleaned up).
This inquiry is sometimes complicated by the common pre-Johnson
practice of sentencing courts not to specify which clause of the ACCA applied
to which predicate violent felony. See, e.g., id. (“[T]he sentencing judge did not
make any statement as to which clause was used for the sentencing
enhancement. . . .”); Clay, 921 F.3d at 556 (“[T]here was no occasion for the
sentencing court to clarify how the requisite ‘violent felonies’ were tabulated.”);
United States v. Winterroth, 759 F. App’x 299, 302 (5th Cir. 2019) (per curiam)
(“[T]he district court said nothing at sentencing as to whether it considered
Winterroth’s prior Texas burglary convictions to be ACCA predicates as the
enumerated offense of burglary or to be violent felonies under § 924(e)’s
residual clause.”).
But we may more easily conclude that the residual clause was not in play
where, as in this case, the sentencing court explicitly relied on the enumerated-
offenses clause and the court’s conclusion that the felony convictions qualified
as violent felonies under that clause was indisputably correct at the time it was
made. Again, Campbell concedes that the sentencing court “stated that
Campbell’s Texas burglary convictions . . . fell under the . . . enumerated-
offenses clause.” And, as if to make its reliance on that clause doubly obvious,
the court cited five different Fifth Circuit opinions at sentencing, all of which
compare the state burglary statute to the generic offense of burglary under the
ACCA, as well as Taylor v. United States, 495 U.S. 575 (1990), the Supreme
Court case that first espoused the categorical approach. Not one of these cases
mentions the residual clause.

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Moreover, at the time of Campbell’s sentencing, it was clear that this
court classified the Texas burglary offenses as generic “burglary” under the
ACCA’s enumerated-offenses clause. See United States v. Silva, 957 F.2d 157,
162 (5th Cir. 1992); United States v. Stone, 72 F. App’x 149, 150 (5th Cir. 2003)
(per curiam). Looking to the sentencing record and the relevant background
legal environment at the time of sentencing, Campbell has not proven that the
sentencing court more likely than not relied on the residual clause. As such,
we lack jurisdiction to consider his successive § 2255 motion with regard to the
burglary convictions.
IV.
We turn now to Campbell’s robbery convictions. As explained above, the
district court explicitly relied on the residual clause of the ACCA in concluding
that the two robbery convictions qualify as violent felonies. Campbell has
shown, then, that it is “more likely than not” that he was sentenced under the
residual clause and that his successive § 2255 motion relies on Johnson. See
Clay, 921 F.3d at 559. But that does not end the matter. It remains for us to
decide whether the district court’s reliance on the residual clause was
harmless. If the robbery convictions continue to justify the ACCA enhancement
because they qualify as violent felonies under a different clause of the ACCA,
then relief to Campbell must be denied.
A.
The ACCA defines a “violent felony,” in relevant part, as:
[A]ny crime punishable by imprisonment for a term
exceeding one year . . . that—

(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or

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No. 17-50383
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion of §
924(e)(2)(B)(ii) is the “residual clause,” which has been struck down as
unconstitutional. And robbery is not listed as an enumerated offense in §
924(e)(2)(B)(ii). So the only question is whether the version of the Texas
robbery statute under which Campbell was twice convicted qualifies under the
“elements clause.” § 924(e)(2)(B)(i). That is, does the Texas statute “ha[ve] as
an element the use, attempted use, or threatened use of physical force against
the person of another”. Id.
To determine whether Campbell’s past robbery convictions qualify under
the elements clause, we apply the “categorical approach.” Descamps v. United
States, 570 U.S. 254, 257 (2013). 3 Under that approach, we “focus solely on
whether the elements of the crime of conviction include the use of force,” paying
no attention to the particular facts behind Campbell’s convictions. United
States v. Burris, 920 F.3d 942, 947 (5th Cir. 2019) (cleaned up). “[I]f the least
culpable conduct covered by [the statute at issue] requires the use, attempted
use, or threatened use of physical force, [the statute] is a violent felony.” Id.

3 If the Texas robbery statute under which Campbell was convicted were
“divisible,” then we would instead apply what is termed the “modified categorical
approach.” Descamps, 570 U.S. at 257. A divisible statute sets forth one or more
elements of the offense in the alternative. Id. Notably, a statute is not divisible simply
because it identifies different means of committing the same offense. Id. at 274. In
determining whether a statute is divisible into multiple offenses with distinct
elements or instead states differing ways of committing the same offense, a state
court decision that “definitively answers the question” is dispositive. Mathis, 136 S.
Ct. at 2256. Because the Texas Court of Criminal Appeals has already determined
that Article 1408 “defines but one offense,” Barber v. State, 258 S.W.2d 87, 89 (Tex.
Crim. App. 1953), we easily reach the threshold conclusion that the categorical
approach applies. See Mathis, 136 S. Ct. at 2256.

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The Supreme Court has defined the required level of force to qualify as
a violent felony under this definition as “force capable of causing physical pain
or injury.” Curtis Johnson v. United States, 559 U.S. 133, 140 (2010). This level
of force is something more than the common-law definition of force, which could
be “satisfied by even the slightest offensive touching.” Id. at 139. The use of
force necessary to commit robbery at common law is adequate, meaning that
the ACCA “encompasses robbery offenses that require the criminal to overcome
the victim’s resistance.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019).
It makes no difference whether the force is applied directly or indirectly (for
example, by poisoning). See United States v. Reyes-Contreras, 910 F.3d 169,
182 (5th Cir. 2018) (en banc) (applying United States v. Castleman, 572 U.S.
157, 162–68 (2014), and overruling Circuit precedent). “[R]obbery that must
overpower a victim’s will—even a feeble or weak-willed victim—necessarily
involves a physical confrontation and struggle.” Stokeling, 139 S. Ct. at 553.
And “[t]he altercation need not cause pain or injury or even be prolonged; it is
the physical contest between the criminal and the victim that is itself capable
of causing physical pain or injury.” Id. (quotation omitted).
In short, the degree of force required by the elements clause “entails
more force than the slightest offensive touching, but does not require any
particular degree of likelihood or probability that the force used will cause pain
or injury; only potentiality.” Burris, 920 F.3d at 955 (quotations omitted). The
emphasis is on “capable.” Id. “Even minor uses of force—including hitting,
slapping, shoving, grabbing, pinching, biting, and hair pulling—that lead to
minor forms of injury, such as a cut, abrasion, or bruise, qualify as ‘physical
force’ under” the ACCA. Id.

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B.
Campbell was twice convicted of robbery under Article 1408 of the 1925
Texas Penal Code. At the time Campbell was convicted, the statute provided:
Robbery.— If any person by assault, or violence, or by
putting in fear of life or bodily injury, shall fraudulently take from
the person or possession of another any property with intent to
appropriate the same to his own use[, he shall be guilty of robbery.]

Tex. Crim. Stat. art. 1408 (1925). “Assault,” defined in a separate section of the
Code, includes “[t]he use of any unlawful violence upon the person of another
with intent to injure him,” “whatever be the means or the degree of violence
used.” Id. at art. 1138. Article 1140 notes that the “means” of violence upon the
person includes any act, including “spitting in the face or otherwise,” so long
as it is “capable of inflicting an injury.” And “injury” itself is broadly defined—
specifically, it “may be either bodily pain, constraint, [or] a sense of shame or
other disagreeable emotion of the mind.” Id. at art. 1139.
Notwithstanding this potentially broad language, however, the case law
makes clear that the level of force required by Article 1408 has been
interpreted more strictly. Courts discussing robbery during the relevant time
emphasized the presence of some “violence or threat of violence to obtain
property” as the main distinguishing factor between robbery and theft. Woods
v. State, 220 S.W.2d 644, 646 (Tex. Crim. App. 1949); see also Jones v. State,
467 S.W.2d 453, 454 (Tex. Crim. App. 1971); Cassidy v. State, 324 S.W.2d 857,
858–59 (Tex. Crim. App. 1959); Harris v. State, 39 S.W.2d 888, 890 (Tex. Crim.
App. 1931). Nevertheless, the amount of force used was “immaterial so long as
it amount[ed] to some kind of assault, violence, or putting in fear” and was
“sufficient to compel one to part with his property.” Davis v. State, 429 S.W.2d
459, 460 (Tex. Crim. App. 1968) (quotation omitted); see also Alsobrook v. State,
115 S.W.2d 668, 671 (Tex. Crim. App. 1938); Rylee v. State, 236 S.W. 744, 745

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(Tex. Crim. App. 1922). 4 The amount of force was alternatively articulated as
“sufficient to overcome resistance of the assaulted party.” Gonzales v. State,
126 S.W.2d 492, 493 (Tex. Crim. App. 1939). Texas courts contrasted these
circumstances with sudden purse-snatchings or pick-pocketing, where the
victim has no opportunity to resist and/or lacks awareness of what is
transpiring. See Harris, 39 S.W.2d at 889–90; Johnson v. State, 32 S.W. 537,
538 (Tex. Crim. App. 1895).
At its most broad, Texas courts convicted a defendant of robbery under
Article 1408 when the “assaultive” physical conduct of the defendant involved
minimal force used on a weakened or cooperative victim. For example, the
Texas Court of Criminal Appeals found that a robbery conviction was
warranted when a victim was commanded to get out of his car by a stranger he
had agreed to take home, was held by two or three others who had been
following behind, and then had money taken from him without any resistance
because the victim believed it would be futile. Burlund v. State, 90 S.W.2d 260,
261 (Tex. Crim. App. 1935); see also Williams, 102 S.W. 1134, 1135 (Tex. Crim.
App. 1907) (robbery conviction appropriate where perpetrator restrained a
vomiting victim and stole his money by forcibly reaching into his pockets over
the victim’s resistance).
In addition, Texas courts permitted robbery charges based on a threat
when it created fear in the victim that was “likely to induce a person to part
with his property against his will.” Cranford v. State, 377 S.W.2d 957, 958 (Tex.
Crim. App. 1964). That standard was met when the victim reasonably believed
he would be injured if he did not comply—even where there was no express
threat and no weapon was present. Horn v. State, 230 S.W. 693, 694 (Tex. Crim.

4Prior iterations of the Texas Penal Code were worded identically to the 1925
Code. See Tex. Crim. Stat. art. 1327 (1911); Tex. Crim. Stat. art. 856 (1895).

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App. 1921); see also Welch v. State, 880 S.W.2d 225, 226–27 (Tex. Crim. App.
1994) (discussing the older statute); and see Peebles v. State, 134 S.W.2d 298,
299 (Tex. Crim. App. 1939) (no robbery where threat could not reasonably have
put the victim in fear).
C.
The level of force required by Article 1408 satisfies generic robbery. To
summarize, the “use of force” involved under Article 1408, when physical,
entailed the use of force with sufficient power to constrain the victim and
forcibly remove an item against the victim’s will or in an attempt to maintain
possession of the item. When based on a threat of force, the threat must have
been of sufficient seriousness to put the victim in reasonable fear or belief that
he would be injured unless he gave up possession of the item. In other words,
taking another’s property by mere unwanted contact—e.g., purse-snatchings
or pickpocketing—would not do. Jones, 467 S.W.2d at 454 (“The mere
snatching of money from another’s hand is not robbery, but is theft from the
person.”); see also Crawford v. State, 509 S.W.2d 582, 584 (Tex. Crim. App.
1974); Alsobrook, 115 S.W.2d at 671 (“The actual or threatened violence to the
person antecedent to the robbery is a distinguishing element between robbery
and theft.”).
In Burris, we held that the modern version of Texas robbery requires the
use, attempted use, or threatened use of physical force. 920 F.3d at 948. There
are two ways of violating the modern statute: (1) robbery-by-threat, which
requires the defendant, in the course of committing a theft, to intentionally or
knowingly threaten or place another in fear of bodily injury or death; and (2)
robbery-by-injury, which requires the defendant, in the course of committing a
theft, to intentionally, knowingly, or recklessly cause bodily injury to another.
Tex. Penal Code § 29.02(a). For robbery-by-threat, it is only necessary that the

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defendant “is aware that his conduct is reasonably certain to place someone in
fear, and that someone actually is placed in fear.” Burris, 920 F.3d at 955
(quoting Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App. 2011)). For
robbery-by-injury, “relatively minor physical contacts” are sufficient “so long
as they constitute more than mere offensive touching.” Id. at 956 (quoting Lane
v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).
Texas courts have described Texas’s current robbery statute as broader
than Article 1408. Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim. App.
1976). If the current version of robbery qualifies as a violent felony, it seems
probable that the narrower range of conduct proscribed by the older version
should as well. Indeed, we find that to be the case.
Like the modern version of Texas robbery analyzed in Burris, Article
1408 robbery required a “physical struggle” or a confrontation between the
robber and the victim. See 920 F.3d at 955–56. Even where no force was
actually used on the victim, and where no explicit threat was made or weapon
was present, conviction under the Article 1408 required that the victim
reasonably feared injury if he did not comply. See Horn, 230 S.W. at 694. “The
fear must be of such nature as in reason and common experience is likely to
induce a person to part with his property against his will.” Cranford, 377
S.W.2d at 958. Intimidation which is likely to induce a person to part with their
property creates the potential for violence which is sufficient under Stokeling.
See 139 S. Ct. at 554. Force that includes the “potentiality” of causing physical
pain or injury encompasses conduct which is reasonably likely to induce a
person to part with property against his will. Cf. Burris, 920 F.3d at 956.
It is irrelevant that conviction under Article 1408 did not require harm
to the victim. As explained in Stokeling, “[t]he altercation need not cause pain
or injury or even be prolonged” to qualify as the use of physical force. 139 S.

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Ct. at 553. Beyond the slightest offensive touching, no particular degree of force
or injury is required under the elements clause. It is instead the potential for
injury created by the defendant’s conduct that is dispositive. Burris, 920 F.3d
at 954. We agree with the government that the taking of property from a person
against their will, in a manner “sufficient to overcome resistance of the
assaulted party,” Gonzales, 126 S.W.2d at 493, is at least “susceptible” to
causing pain or injury, Stokeling, 139 S. Ct. at 554.
Campbell argues that the minimum conduct criminalized by Article 1408
was satisfied by the slightest offensive touching, without a physical contest
capable of causing physical pain or injury. See Davis, 429 S.W.2d at 460 (“‘The
degree of force used is immaterial so long as it amounts to some kind of assault,
violence, or putting in fear, and is sufficient to compel one to part with his
property.’” (quoting Rylee, 236 S.W. at 745)). He urges that slight offensive
touching that causes an emotional, not physical, injury does not satisfy the
elements clause of the ACCA.
If we analyzed the text of Article 1408 in a vacuum, we might be inclined
to agree with Campbell. After all, the statutory definition of “assault” suggests
that any offensive act, including spitting in the face, which creates only a sense
of shame or other disagreeable emotion in the victim, would constitute
sufficient force for a robbery conviction under Article 1408. See Tex. Crim. Stat.
arts. 1339, 1140. That sounds a lot like the “slightest offensive touching” which
constituted force at common law, and which the Supreme Court in Curtis
Johnson declared inadequate to constitute a violent felony under the ACCA.
559 U.S. at 138.
But we do not interpret the statute in a vacuum. We have instead
instructed defendants such as Campbell that they must show more than a
“theoretical possibility” that Texas would have applied Article 1408 to such

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conduct. Reyes-Contreras, 910 F.3d at 184–85. Campbell’s burden is to show “a
realistic probability” that Article 1408 applied to the conduct described above.
Id. Defendants must do that with cases. Id. But Campbell has not identified a
single instance in which a conviction under Article 1408 was premised on
conduct which would not satisfy the generic definition of robbery. And
“[w]ithout supporting state case law, interpreting a state statute’s text alone
is simply not enough to establish the necessary realistic probability.” Id.
(quotation omitted). This logic has added force where, as in this case, the
statute at issue is no longer on the books, meaning that there will never be
another state court conviction under Article 1408. The cases discussed above
represent the relevant universe of case law on the statute. Because they never
applied Article 1408 in a manner that is inconsistent with our interpretation
of a violent felony under the ACCA, Campbell cannot show a realistic
probability that they would have applied Article 1408 to the slightest offensive
touching.
V.
For the foregoing reasons, we hold that Campbell’s § 2255 motion
challenging the use of his burglary convictions to enhance his sentence is
DISMISSED for lack of jurisdiction. His § 2255 motion challenging the use of
his robbery convictions is DENIED. The sentencing enhancement was
appropriate.

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