United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-11168 December 8, 2020
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant,
versus
Eddie Lamont Lipscomb,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-375-M
Before Clement, Ho, and Duncan, Circuit Judges.
Edith Brown Clement, Circuit Judge:
In 2007, a Dallas police officer arrested Eddie Lipscomb for illegal
possession of a sawed-off shotgun. Lipscomb, who had nine prior felony
convictions, pleaded guilty to illegal possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g). The district court then sentenced Lipscomb
to 20 years in prison—a sentence that fell between the 15-year statutory
minimum required by the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1), and the 24-year bottom of the sentencing guidelines. We
affirmed in United States v. Lipscomb, 619 F.3d 474, 476 (5th Cir. 2010).
No. 18-11168
Years later, Lipscomb moved for release under 28 U.S.C. § 2255,
based on the Supreme Court’s holding in Johnson v. United States, 576 U.S.
591, 597 (2015), that the residual clause of the ACCA’s violent felony
definition violated due process. Over the Government’s objection, the
district court granted Lipscomb’s motion, concluding that he did not have
the requisite three violent felonies to mark him as an armed career criminal.
See 18 U.S.C. § 924(e)(1). The district court amended its judgment, reducing
Lipscomb’s sentence to ten years. See id. § 924(a)(2). Lipscomb was
immediately released on time served, and the Government appealed.
In the years since the Government filed its appeal, our cases have
crystalized in this area. It is settled: Lipscomb’s prior convictions designated
him an armed career criminal at the time of his sentencing. Because the
district court erred in granting Lipscomb’s section 2255 motion to the
contrary, we vacate that order and direct the district court to reinstate its
original judgment.
I.
Under the ACCA, “a person who violates section 922(g),” as
Lipscomb did, “and has three previous convictions . . . for a violent felony . . .
committed on occasions different from one another,” faces a statutory
minimum 15-year prison sentence. 18 U.S.C. § 924(e)(1). In relevant part,
the statute defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that — (i) has as an element
the use, attempted use, or threatened use of physical force against the person
of another; or (ii) is burglary,” or another enumerated offense. Id.
§ 924(e)(2)(B).
Among Lipscomb’s nine prior felonies at the time of his 2007 arrest
were two convictions for burglary—in 1993 and 1994—and four for
robbery—one in 1994 and three in 2004. The Government does not argue
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No. 18-11168
that the three 2004 robbery convictions were “committed on occasions
different from one another,” and, since it does not change our analysis, we
will treat them as one. See id. § 924(e)(1).
In granting Lipscomb’s section 2255 motion, the district court
concluded that the robbery convictions did not qualify as violent offenses
because they did not meet the elements requirement of § 924(e)(2)(B)(i). 1
Our recent cases demonstrate that was incorrect. In United States v. Burris,
we held that “robbery under Texas Penal Code § 29.02(a) requires the ‘use,
attempted use, or threatened use of physical force.’” 920 F.3d 942, 945 (5th
Cir. 2019); see 18 U.S.C. § 924(e)(2)(B)(i). Likewise, we held in United States
v. Herrold, that “burglary convictions . . . under [Texas Penal Code] Section
30.02(a)(1) [are] generic burglary” as that term is used in 18 U.S.C.
§ 924(e)(2)(B)(ii). 941 F.3d 173, 182 (5th Cir. 2019) (en banc), cert. denied, ---
S. Ct. ---, 2020 WL 5882400 (mem.) (Oct. 5, 2020). At the time of his
sentencing, Lipscomb had the three previous violent felony convictions to
bring him under the ACCA’s ambit. It is clear that the district court’s order
granting Lipscomb’s section 2255 motion was in error. 2 Nor does Lipscomb
dispute this. 3
II.
Lipscomb does, however, dispute what this court should do about it.
We address, and ultimately reject, each of Lipscomb’s three proposals.
1
We review this decision de novo. United States v. Fuller, 453 F.3d 274, 278 (5th
Cir. 2006).
2
See United States v. Matthews, 799 F. App’x 300 (5th Cir. 2020) (summarily
affirming findings that Texas robbery and Texas burglary are categorically violent felonies
for purposes of ACCA).
3
Lipscomb preserves for further review his argument that Burris and Herrold were
wrongly decided.
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No. 18-11168
First, Lipscomb argues that the Government is estopped from
appealing the district court’s order because, during the pendency of this
appeal, the Government “twice secured Mr. Lipscomb’s reincarceration on
allegations that he had violated his conditions of supervised release.” If this
sounds dubious, it is.
“Estoppel against the government is problematical at best.” United
States v. Perez-Torres, 15 F.3d 403, 407 (5th Cir. 1994) (citing Off. of Pers.
Mgmt. v. Richmond, 496 U.S. 414 (1990)). “[I]f estoppel were to be available
against the government at all it would ‘at least’ require demonstrating all the
traditional equitable prerequisites.” Id. (quoting Heckler v. Cmty. Health
Servs. of Crawford, 467 U.S. 51, 61 (1984)) (emphasis added). But, as an
equitable doctrine, estoppel requires that “he who comes into equity must
come with clean hands.” Id. (quotation omitted). If not, “the doors of equity
are closed to one tainted with inequitableness or bad faith relative to the
matter in which he seeks relief, however improper may have been the
behavior of the other party.” Id. (quotation omitted). More than that,
estoppel “assumes even wider and more significant proportions where the
matter in issue concerns the public interest, for in such an instance the denial
of equitable relief averts an injury to the public.” Id. (quotation omitted).
So, in Perez-Torres, we declined to estop the defendant’s prosecution
for illegally reentering the United States after deportation, because “he [was]
tainted with extreme bad faith, for he knew such conduct was a felony and
nevertheless willfully and purposefully engaged in it.” Id. Estoppel is equally
inapposite here. Lipscomb argues that the Government cannot pursue this
appeal because it took remedial action to secure his incarceration after he
violated his supervisory release conditions. But, critically, the Government
only took its actions in response to Lipscomb’s violations. His hands are far
from clean.
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No. 18-11168
Lipscomb offers no persuasive authority to the contrary. All his cited
cases are non-binding, out-of-circuit decisions, and none involve the
Government or a criminal prosecution. See Wohl v. Keene, 476 F.2d 171, 177
(4th Cir. 1973); In re Greenpoint Metallic Bed Co., 113 F.2d 881, 884 (2d Cir.
1940); Smith v. Morris, 69 F.2d 3, 4–5 (3d Cir. 1934); Albright v. Oyster, 60 F.
644 (8th Cir. 1894). We are unpersuaded.
Second, Lipscomb argues that “basic fairness” compels a stay until the
Supreme Court considers a case that will determine whether Burris was
decided correctly. See Borden v. United States, 140 S. Ct. 1262 (Mar. 2, 2020)
(No. 19-5410) (granting petition for certiorari). Lipscomb notes that the court
previously granted the Government’s requested stays to allow for resolution
of United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc),
Herrold, 941 F.3d at 173, and Walker v. United States, 140 S. Ct. 519 (Nov. 15,
2019) (No. 19-373) (granting petition for certiorari), abrogated by 140 S. Ct.
953 (Jan. 27, 2020) (dismissing petition because of petitioner’s death). Now
that the case law supports the Government, Lipscomb asks for the same
opportunity.
In arguing for fairness, Lipscomb acknowledges that “we remain
bound to follow our precedent even when the Supreme Court grants
certiorari on an issue.” United States v. Lopez-Velasquez, 526 F.3d 804, 808
n.1 (5th Cir. 2008). Whatever his argument’s intuitive appeal, we
nevertheless “remain bound.” We granted the Government’s motions to
stay its appeal (some of them, as Lipscomb acknowledges, unopposed) in the
interest of resolving unsettled questions that directly affected this appeal.
Those questions are now settled on the firmest foundations of our court. See
Burris, 920 F.3d at 945; Herrold, 941 F.3d at 182 (en banc), cert. denied, ---
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No. 18-11168
S. Ct. ---, 2020 WL 5882400; see also Reyes-Contreras, 910 F.3d at 169 (en
banc). We will not delay any longer. 4
Third, if we reverse, Lipscomb asks us to “remand rather than render
judgment for the Government,” so the district court can decide how to
resolve this sentence and the two revocation judgments against Lipscomb. Of
course, the district court must preside over the revocation judgments in the
first instance. But as to the erroneous section 2255 order, Lipscomb offers no
support for his assertion that the district court is better suited to correct its
judgment.
***
The district court’s order granting Lipscomb’s motion for release
under 28 U.S.C. § 2255 is hereby VACATED and REMANDED for the
district court to reinstate its original judgment.
4
In addition to Lipscomb’s violations of supervised release, the Government cites
five state criminal cases against Lipscomb since his release. These alleged offenses also
counsel against further delay. For example, in August 2020, Lipscomb was arrested for a
robbery in which he allegedly choked and threatened to kill his ex-girlfriend. Based on that
incident, we granted the government’s motion to expedite Lipscomb’s appeal.
6