United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 17, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40758
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDRE DAVIS
Defendant-Appellant
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Appeal from the United States District Court
for the Eastern District of Texas, Lufkin Division
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Before KING, DAVIS and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Andre Davis appeals his enhanced
sentence, arguing that (1) his prior convictions for robbery
under Texas Penal Code § 29.02 do not qualify as violent felonies
under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and
(2) the district court violated the Sixth Amendment by
determining certain sentencing facts. For the following reasons,
we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-appellant Andre Davis pleaded guilty to one count
of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). This possession conviction arose out of
robberies committed on October 3 and October 4, 2004. The
district court sentenced Davis under the 2004 version of the
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United States Sentencing Guidelines (the “Sentencing Guidelines”)
on May 6, 2005. The district court adopted the recommendations
from the presentence investigation report (“PSR”).
The district court classified Davis’s three prior robbery
convictions under Texas Penal Code § 29.02 as violent felonies
and subjected him to an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1).1 Because the
instant firearm possession offense was in connection with a
robbery, Davis’s offense level was thirty-four. U.S. SENTENCING
GUIDELINES MANUAL § 4B1.4(b)(3)(A). After factoring in a three-
level reduction for acceptance of responsibility, his total
offense level was thirty-one. In contrast, if Davis’s sentence
had not been enhanced under the ACCA, his total offense level
would have been twenty-five.
Davis’s offense level of thirty-one, combined with his
criminal history category of VI, resulted in a guideline
imprisonment range of 188 to 235 months. The district court
1
The ACCA provides that
In the case of a person who violates
section 922(g) of this title and has three
previous convictions by any court referred
to in section 922(g)(1) of this title for
a violent felony or a serious drug
offense, or both, committed on occasions
different from one another, such person
shall be fined under this title and
imprisoned not less than fifteen years,
and notwithstanding any other provision of
the law, the court shall not suspend the
sentence of, or grant a probationary
sentence to, such person with respect to
conviction under section 922(g).
18 U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing
Guidelines implements the ACCA.
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sentenced Davis to 188 months of imprisonment (slightly more than
the fifteen year minimum required by the ACCA) and three years of
supervised release and imposed a $100 special assessment. Davis
filed a timely notice of appeal.
II. VIOLENT FELONY ENHANCEMENT
Davis first argues that the district court erred in
enhancing his sentence because his prior robbery convictions do
not constitute violent felonies under the ACCA. Because Davis
raised no objection to the enhancement in the district court, we
review for plain error. See United States v. Ochoa-Cruz, 442
F.3d 865, 866 (5th Cir. 2006). Under this standard, “we may
reverse only if ‘(1) there was error, (2) the error was clear and
obvious, and (3) the error affected [the defendant’s] substantial
rights.’” See United States v. Garcia Abrego, 141 F.3d 142, 165
(5th Cir. 1998) (quoting United States v. Dupre, 117 F.3d 810,
817 (5th Cir. 1997)); FED. R. CRIM. P. 52(b). Even if these
criteria are satisfied, reversal is discretionary; generally, we
will reverse only if we conclude that “the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 736 (1993)
(quotation marks and brackets omitted) (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)); Garcia Abrego, 141 F.3d at
166. The plain or obvious nature of the error is determined by
the law as it exists at the time of appellate review, rather than
at the time of the district court’s ruling. Johnson v. United
States, 520 U.S. 461, 468 (1997).
Under the first step of plain-error review, we consider
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whether the court erred by enhancing Davis’s sentence under the
ACCA. Accordingly, we must determine whether a robbery under
§ 29.02(a) qualifies as a violent felony under the ACCA. The
ACCA defines a violent felony as any crime punishable by a term
of imprisonment 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, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
§ 924(e)(2)(B). Clause (i), is known as the force clause. The
portion of clause (ii) following the enumerated offenses is
known as the residual clause.2
Davis’s three prior robbery convictions were all under the
following Texas robbery statute:
(a) A person who commits an offense if, in
the course of committing theft as defined in
Chapter 31 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. PEN. CODE ANN. § 29.02.
When classifying a prior offense for enhancement purposes,
we employ a categorical approach and look to the statutory
definition of the prior offense rather than the defendant’s
2
The residual clause is also referred to by this circuit
as the Otherwise Clause. See, e.g., United States v. Montgomery,
402 F.3d 482, 486-87 (5th Cir. 2005).
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underlying conduct. Shepard v. United States, 544 U.S. 13, 17
(2005); Taylor v. United States, 495 U.S. 575, 600 (1990).
When determining whether a prior conviction satisfies the
residual clause, we consider “whether the elements of the
offense are of the type that would justify its inclusion within
[that] provision without inquiring into the specific conduct of
this particular offender.” James v. United States, 127 S.Ct.
1586, 1594 (2007). Because we cannot look to the particular
facts of this case, Davis’s contention that his particular
convictions do not qualify as violent felonies because he
committed unarmed robberies fails. See Taylor, 495 U.S. at 600.
The test articulated by James for determining whether an
offense falls within the residual clause is “whether the conduct
encompassed by the elements of the offense, in the ordinary
case, presents a serious potential risk of injury to another.”
127 S.Ct. at 1597.3 The way in which the Court applied this
3
The Court noted that:
One can always hypothesize unusual cases in
which even a prototypically violent crime might
not present a genuine risk of injury-for
example, an attempted murder where the gun,
unbeknownst to the shooter, had no bullets, see
United States v. Thomas, 361 F.3d 653, 659
(C.A.D.C. 2004). Or, to take an example from
the offenses specifically enumerated in
§ 924(e)(2)(B)(ii), one could imagine an
extortion scheme where an anonymous blackmailer
threatens to release embarrassing personal
information about the victim unless he is
mailed regular payments. In both cases, the
risk of physical injury to another approaches
zero. But that does not mean that the offenses
of attempted murder or extortion are
categorically nonviolent.
James, 127 S.Ct. at 1597.
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test is instructive. The Court examined whether a conviction
under a Florida attempted burglary statute which required “overt
conduct directed toward unlawfully entering or remaining in a
dwelling, with the intent to commit a felony therein, [was]
‘conduct that presents a serious potential risk of physical
injury to another.’” Id. at *8. The Supreme Court observed that
“[t]he specific offenses enumerated in clause (ii) provide one
baseline from which to measure” whether other offenses fit
within the residual clause. Id. It compared the risk posed by
attempted burglary to that of completed burglary, “its closest
analog among the enumerated offenses.” Id. The Court
recognized that the main risk of burglary arises “from the
possibility of a face-to-face confrontation between the burglar
and a third party . . . who [came] to investigate” and held that
attempted burglary under the Florida statute, which required
overt conduct directed toward unlawfully entering or remaining
in a dwelling, with the intent to commit a felony therein, posed
a similar risk. Id. “Interrupting an intruder at the doorstep
while the would-be burglar is attempting a break-in creates a
risk of violent confrontation comparable to that posed by
finding him inside the structure itself.” Id.
The enumerated offenses in clause (ii) of § 924(e)(2)(B),
however, merely provide a starting point in the inquiry of
whether there is a serious risk for physical injury. “Nothing
in the language of § 924(e)(2)(B)(ii) rules out the possibility
that an offense may present ‘a serious risk of physical injury
to another’ without presenting as great a risk as any of the
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enumerated offenses.” Id. at *11.
As instructed by the Supreme Court, we look to the elements
of the Texas robbery statute and ask whether the conduct
encompassed by those elements, in the ordinary case, presents a
serious potential risk of injury to another. The elements of
robbery are: (1) a person, (2) in the course of committing
theft, (3) with the intent to obtain or maintain control of
property, (4) intentionally, knowingly, or recklessly causes
bodily injury to another, or (5) intentionally or knowingly
threatens or places another in fear of imminent bodily injury or
death. TEX. PEN. CODE ANN. § 29.02; Nelson v. State, 848 S.W.2d
126, 131 (Tex. Crim. App. 1992); Castillo v. State, 865 S.W.2d
89, 92 (Tex. App.–Corpus Christi 1993, no pet.). The defining
feature of robbery under the Texas statute is the actual or
threatened assaultive conduct. See Purser v. State, 902 S.W.2d
641, 647 (Tex. App.–El Paso 1995, pet. ref’d) (stating “[t]he
gravamen of robbery is the assaultive conduct, and not the
theft.”). The theft need not even be completed because the “in
the course of committing theft” element allows conduct “which
occurs in an attempt to commit, during commission, or in
immediate flight after the attempt or commission of theft” to
constitute robbery. Id. Robbery may also be completed without
a weapon. Id. Texas courts have held that the statement “I’ve
got a gun” - even if false - satisfies the requirement to
threaten or place in fear of imminent bodily injury or death.
Robinson v. State, 817 S.W.2d 822, 824 (Tex. App.–Fort Worth
1991, pet. ref’d).
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To commit robbery, an individual must interact with the
victim in order to cause bodily injury or place the victim in
fear of it. See TEX. PEN. CODE ANN. § 29.02.4 Such interaction to
take another’s property creates a serious potential risk of a
violent confrontation between the robber and the victim. This
in turn, in the ordinary case, presents a serious potential risk
of physical injury to another.5
Davis argues that because conviction under the statute does
not require the use of a weapon, the inherent danger to another
in an unarmed robbery is not so great as to satisfy the residual
clause. He contrasts the instant case with United States v.
Stapleton, 440 F.3d 700, 703 (5th Cir.), cert. denied, 126 S.
Ct. 2913 (2006), in which this court held that the offense of
false imprisonment with a dangerous weapon under Louisiana law
constitutes a violent felony under the residual clause. In
Stapleton, the court focused on the “heightened likelihood of
violence in the interaction between the offender and the
. . . victim or others” associated with a dangerous weapon. Id.
Even when the robber has no weapon, the very real
possibility of confrontation between the robber and victim
creates a serious potential risk of injury. Davis’s argument
that the presence of a weapon is the defining factor for violent
4
Bodily injury is defined as “physical pain, illness, or
any impairment of physical condition.” TEX. PEN. CODE ANN.
§ 1.07(a)(8).
5
As noted in James, the categorical approach does not
require that “every conceivable factual offense covered by a
statute must necessarily present a serious potential risk of
injury before the offense can be deemed a violent felony.” 127
S.Ct. at 1597.
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felonies is undercut by James itself (in which the use or
absence of a weapon was irrelevant) and by other cases in which
the absence of a weapon was not a relevant consideration. See
127 S.Ct. 1586. This court held that a Texas statute that made
it a crime to entice, allure, persuade, or invite, or attempt to
do any of those, any child under fourteen years of age, for the
purpose of proposing sodomy, fell within the residual clause
because it concerned “potential, if not immediate, risk of
physical injury to children as a direct result of attempts to
entice them to, inter alia, sexual acts.” United States v.
Williams, 120 F.3d 575, 579 (5th Cir. 1997). Williams relied on
United States v. Velazquez-Overa, which held that when an older
person attempts to sexually touch a younger child, “‘there is
always a substantial risk that physical force will be used to
ensure the child’s compliance.’” Id. (relying on United States
v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996)).
Similarly, in a robbery, there is always a substantial risk that
force will be used to ensure the victim’s compliance with the
robber’s demands. This risk is what distinguishes robbery from
theft. See United States v. Santiesteban-Hernandez, 469 F.3d
376, 380 (5th Cir. 2006); see also WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 20.3 intro., (d)(2) (2d ed. 2003).
Because a violation of the Texas robbery statute poses a
substantial risk of violent confrontation, there is a
substantial risk that physical injury will result. Accordingly,
the offense qualifies as a violent felony under the residual
clause of § 924(e), and the district court did not err, let
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alone plainly err, in enhancing Davis’s sentence under the ACCA.
III. SIXTH AMENDMENT
Davis next argues that the district court violated the
Sixth Amendment when it relied on the PSR and evidence of his
prior convictions (the charging instruments and the judgments)
to determine that the prior convictions were violent felonies
and that the crimes were committed on different occasions from
one another. In support, he cites United States v. Booker, 543
U.S. 220 (2000), and Apprendi v. New Jersey, 530 U.S. 466
(2000), and he argues that Almendarez-Torres v. United States,
523 U.S. 224, 247 (1998), should be reconsidered. As Davis
concedes, review is for plain error; Davis raised no objection
to the use of the evidence of his prior convictions in
determining his sentence.
In Apprendi the Court held that “any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490. This circuit has stated
that “[i]n so holding, however, the Court explicitly excepted
enhancements like that provided by Section 924(e), which are
based upon prior convictions.” United States v. Stone, 306 F.3d
241, 243 (5th Cir. 2002). The holding in Stone is premised on
Almendarez-Torres, in which the Court held that Congress could
treat recidivism as a sentencing factor rather than an element
of the offense when codifying the penalties for a violation of 8
U.S.C. § 1326(a). 523 U.S. at 247. The Court in Apprendi
explicitly refrained from overruling Almendarez-Torres.
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Apprendi, 530 U.S. at 489-90. Further, in James the Court held
that by applying the categorical approach to determine if a
defendant’s prior conviction is a violent felony, the court
avoids any inquiry into the underlying facts of the defendant’s
particular offense and engages in statutory interpretation, not
judicial factfinding. 127 S.Ct. at 1600. Accordingly, it was
not error for the district court to determine that Davis’s prior
robbery convictions were violent felonies committed on occasions
different from one another.
IV. CONCLUSION
Davis’s guilty-plea conviction and the sentence imposed are
AFFIRMED.