Case: 20-10520 Document: 00515959970 Page: 1 Date Filed: 07/30/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 30, 2021
No. 20-10520 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Craig Anthony Ybarra,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-55-1
Before Jolly, Duncan, and Oldham, Circuit Judges.
Per Curiam:*
Craig Anthony Ybarra pleaded guilty to possessing a firearm as a felon
in violation of 18 U.S.C. § 922(g)(1). Consistent with then-binding precedent
from our court, the district court determined that Ybarra’s prior conviction
for Texas robbery, Tex. Penal Code § 29.02, and his two prior
convictions for Texas burglary, Tex. Penal Code § 30.02, were “violent
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-10520
felonies” that triggered a 15-year mandatory minimum sentence under the
Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1), (2)(B);
United States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019) (holding that
“robbery under Texas Penal Code § 29.02(a) requires the ‘use, attempted
use, or threatened use of physical force’” under ACCA’s elements clause
(quoting 18 U.S.C. § 924(e)(2)(B)(i))); United States v. Herrold, 941 F.3d 173,
175, 182 (5th Cir. 2019) (en banc) (holding that “the Texas burglary statute
is ‘generic’ burglary” under ACCA’s enumerated-offense clause (citing 18
U.S.C. § 924(e)(2)(B)(ii))). Ybarra appealed his sentence, contending among
other things that Burris was wrongly decided.
After Ybarra filed his appeal, the Supreme Court decided Borden v.
United States, 141 S. Ct. 1817 (2021). Borden held that offenses criminalizing
reckless force do not satisfy ACCA’s elements clause. See id. at 1825
(plurality opinion) (noting that reckless conduct is not aimed “against the
person of another” as the elements clause requires); id. at 1835 (Thomas, J.,
concurring in the judgment) (noting instead that reckless conduct does not
involve the “use of physical force” as the elements clause requires); 18
U.S.C. § 924(e)(2)(B)(i). We requested supplemental briefing so the parties
could address Borden’s impact on Ybarra’s sentence. Ybarra and the
Government both responded that ACCA’s 15-year mandatory minimum no
longer applies in this case.
We agree. To trigger ACCA’s sentencing enhancement, each of
Ybarra’s three convictions for Texas robbery and Texas burglary must
qualify as a “violent felony.” 18 U.S.C. § 924(e)(1). A person commits Texas
robbery “if, in the course of committing theft . . . and with intent to obtain or
maintain control of the property, he: (1) intentionally, knowingly, or
recklessly causes bodily injury to another; or (2) intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.” Tex.
Penal Code § 29.02(a). While Borden does not affect paragraph (a)(2) of
2
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No. 20-10520
that section, the record makes clear that Ybarra was convicted under
paragraph (a)(1). 1 That provision criminalizes the reckless use of force, so it
does not satisfy ACCA’s elements clause after Borden. See 141 S. Ct. at 1825
(plurality opinion); id. at 1835 (Thomas, J., concurring in the judgment). 2
Nor does it satisfy ACCA’s enumerated-offense clause. See 18 U.S.C.
§ 924(e)(2)(B)(ii) (defining “violent felony” to include “burglary” but not
robbery). Thus, Ybarra’s robbery conviction does not qualify as a “violent
felony,” and his ACCA sentencing enhancement cannot stand.
Accordingly, we VACATE Ybarra’s sentence and REMAND to the
district court for resentencing consistent with this opinion.
1
As in Burris, we have no occasion here to determine whether robbery-by-injury
under paragraph (a)(1) and robbery-by-threat under paragraph (a)(2) are divisible crimes
for purposes of the categorical approach. See Burris, 920 F.3d at 948.
2
Although Ybarra pleaded guilty to “intentionally and knowingly caus[ing] bodily
injury to [the] complainant,” Texas law treats alternatively-phrased mens rea requirements
as “means” instead of “elements.” See Hicks v. State, 372 S.W.3d 649, 656–67 & n.36 (Tex.
Crim. App. 2012). We cannot consider Ybarra’s state of mind when he committed his
robbery offense for that reason. See Mathis v. United States, 136 S. Ct. 2243, 2253–54 (2016).
3