Case: 19-11348 Document: 00516138442 Page: 1 Date Filed: 12/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 20, 2021
No. 19-11348 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Desmond Howard Greer,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-30-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Carl E. Stewart, Circuit Judge:
This sentencing appeal returns to us on remand from the United
States Supreme Court after it issued its opinion in Borden v. United States,
holding that offenses involving a mens rea of recklessness do not qualify as
violent felonies under the Armed Career Criminal Act (“ACCA”). 141 S. Ct.
1817, 1834 (2021). Since the district court did not have the benefit of this
intervening Supreme Court authority at sentencing, resulting in an erroneous
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No. 19-11348
guidelines calculation, and because the Government has failed to show that
the error was harmless, we VACATE Desmond Howard Greer’s sentence
and REMAND for reconsideration.
I. Factual & Procedural Background
In August 2019, Greer pled guilty to being a convicted felon in
possession of a firearm. In the presentence investigation report (“PSR”), the
probation officer applied a base offense level of 26 pursuant to U.S.S.G. §
2K2.1(a)(1) because Greer had two prior state court convictions for crimes of
violence: (1) Assault Family Violence Impede Breath or Circulation, in
violation of Texas Penal Code § 22.01(b)(2)(B); and (2) Assault Family
Violence with Previous Convictions, in violation of Texas Penal Code
§ 22.01(b)(2)(A). See U.S.S.G. §§ 4B1.2(a), 2K2.1, comment. (n.1). Greer
objected to the classification of his assault offenses as crimes of violence,
arguing that the Texas statute may be violated through reckless conduct and
that the statute encompasses actions that do not require touching. He
acknowledged that his argument was foreclosed by this court’s precedent,
but he raised the objection to preserve it for further review. In December
2019, the district court overruled Greer’s objections and sentenced him to
the statutory maximum guideline term of imprisonment of 120 months, to
run concurrently with any sentence imposed in a related state case, and three
years of supervised release. Greer timely appealed his sentence.
In May 2020, a panel of this court granted the Government’s motion
for summary affirmance of Greer’s sentence on grounds that his arguments
on appeal were foreclosed by this court’s precedent in United States v. Reyes-
Contreras, 910 F.3d 169, 183 (5th Cir. 2018) (en banc) and United States v.
Howell, 838 F.3d 489, 501–02 (5th Cir. 2016). Greer filed a petition for writ
of certiorari with the Supreme Court in December 2020.
In June 2021, the Court issued its opinion in Borden, which held that
“[o]ffenses with a mens rea of recklessness do not qualify as violent felonies
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under ACCA,” because “[t]hey do not require, as ACCA does, the active
employment of force against another person.” 141 S. Ct. at 1834. Shortly
thereafter in July 2021, the Court vacated and remanded Greer’s sentence to
this court for reconsideration in light of Borden. Both parties have since filed
supplemental briefing and presented oral argument.
II. Standard of Review
Because Greer has preserved the only issue in his sentencing appeal,
we conduct a de novo review and harmless error applies. See United States v.
Johnson, 14 F.4th 342, 347 (5th Cir. 2021) (de novo review); United States v.
Halverson, 897 F.3d 645, 651 (5th Cir. 2018) (application of harmless error).
There are two ways that the Government can show harmless error if the
district court has applied the wrong guidelines range. United States v.
Guzman-Rendon, 864 F.3d 409, 411 (5th Cir. 2017). The first way is to show
that the district court considered both ranges (the incorrect range and the
correct range) and explained that it would have imposed the same sentence
either way. Id. The second way, which is applicable in Greer’s case, is used
when the correct guidelines range was not considered and requires that “the
proponent of the sentence convincingly demonstrate[ ] both (1) that the
district court would have imposed the same sentence had it not made the
error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” Id. (citing United States v. Ibarra–Luna, 628 F.3d 712, 714
(5th Cir. 2010)). To satisfy its “heavy” burden, the Government must
“point to evidence in the record that will convince [the appellate court] that
the district court had a particular sentence in mind and would have imposed
it, notwithstanding the error.” See United States v. Richardson, 676 F.3d 491,
511 (5th Cir. 2012) (alteration in original) (internal quotation marks omitted)
(quoting Ibarra–Luna, 628 F.3d at 714); see also Halverson, 897 F.3d at 651.
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III. Discussion
Greer argues that his sentence should be vacated and remanded in
light of Borden on grounds that the Government has failed to show harmless
error. The Government counters that Borden has no effect on Greer’s
sentence because he would have received the same statutory-maximum
sentence even if his base offense level had been lower. It contends that the
district court’s statements at sentencing demonstrated that Greer’s current
offense and elaborate criminal history necessitated the 120-month sentence
that was imposed. If this court rejects its harmless error argument, however,
“the [G]overnment acknowledges that Borden affects Greer’s base offense
level and that remand for resentencing is necessary.” We address each of
these arguments in turn.
When a defendant is convicted of being a felon in possession of a
firearm, 1 U.S.S.G. § 2K2.1(a)(1) provides in pertinent part that a base offense
level of 26 is applied if the defendant has two qualifying felony convictions of
crimes of violence. For purposes of U.S.S.G. § 2K2.1, a crime of violence is
defined by U.S.S.G. § 4B1.2(a) as a federal or state offense punishable by
more than a year in prison that (1) “has as an element the use, attempted use,
or threatened use of physical force against the person of another,” or (2) is
an enumerated offense. U.S.S.G. §§ 4B1.2(a); 2K2.1, comment. (n.1).
Subsections (a)(1) and (b)(2)(B) of Texas Penal Code § 22.01 provide
that a person commits the offense of assault by intentionally, knowingly, or
recklessly causing bodily injury to another, including their spouse, by
intentionally, knowingly, or recklessly impeding the normal breathing or
circulation of the blood of the person by applying pressure to the person’s
throat or neck or by blocking the person’s nose or mouth. Likewise,
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See 18 U.S.C. §§ 922(g)(1), 924(a)(2).
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subsections (a)(1) and (b)(2)(A) of Texas Penal Code § 22.01 provide that a
person commits the offense of assault by intentionally, knowingly, or
recklessly causing bodily injury to another, including their spouse, if it is
shown on the trial of the offense that the defendant has been previously
convicted of applicable offenses under the Code against a person whose
relationship to the defendant falls under the qualifying sections of the Penal
Code or Family Code.
In Howell, this court held that the Texas offense of assault family
violence by impeding breathing or circulation “‘has as an element the use,
attempted use, or threatened use of physical force against the person of
another.’” See Howell, 838 F.3d at 492 (internal quotation marks omitted)
(quoting § 4B1.2(a)(1)). On this basis, we determined in Howell that an
assault as defined under Texas Penal Code § 22.01(a)(1) and (b)(2)(B)
qualifies as a crime of violence for purposes of a § 2K2.1 enhancement. Id. at
501–02. We have also held en banc that the phrase “use of physical force” in
the nearly-identical “crime of violence” definition in the former U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) does not require that the use of force be intentional and
therefore applies to knowing or reckless conduct as well. See Reyes-Contreras,
910 F.3d at 183 (citing Voisine v. United States, 136 S. Ct. 2272, 2279 (2016)).
Consequently, under Howell and Reyes-Contreras, both of Greer’s
Texas Penal Code convictions were considered crimes of violence at the time
he was sentenced and the district court properly sentenced him under
U.S.S.G. § 2K2.1(a)(1) since he had two qualifying felony convictions. After
Borden, however, Greer’s prior conviction for assault family violence by
impeding breathing or circulation under Texas Penal Code § 22.01(a)(1) and
(b)(2)(B) no longer qualifies as a “crime of violence” because the applicable
statutory subsections do not include a force element with a mens rea greater
than recklessness. See Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App.
2015) (explaining that the offense defined by sections 22.01(a)(1) and
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(b)(2)(B) includes a mens rea of recklessness). Likewise, Greer’s conviction
for assault family violence with a prior conviction under Texas Penal Code
§ 22.01(a)(1) and (b)(2)(A) no longer qualifies as a crime of violence because
the only force element in those statutory subsections includes a mens rea of
recklessness. See Tex. Penal Code § 22.01(a)(1), (b)(2)(A) (providing that
“intentionally, knowingly, or recklessly caus[ing] bodily injury to another”
is a third degree felony “if the defendant has been previously convicted of”
another such family violence offense).
Without these two qualifying prior convictions for crimes of violence,
Greer’s base offense level would drop from 26 to 20, and his total offense
level would drop from 29 to 23. See USSG § 2K2.1(a)(4)(B) (providing for a
base offense level of 20 if the offense involved a semiautomatic firearm
capable of accepting a large capacity magazine). The 6-level disparity in
Greer’s base offense level calculation resulting from the district court’s
application of the incorrect guidelines range is significant. With the error,
Greer’s criminal history category of IV and total offense level of 29 yielded a
guidelines range of 121 to 151 months and a statutory maximum of 120
months (his actual sentence). Without the error, Greer’s total offense level
would have been 23, and coupled with his criminal history category of IV,
would have yielded a guidelines range of 70 to 87 months. Assuming
arguendo that the district court would have again sentenced Greer to the
maximum sentence in the correct guidelines range (87 months), his sentence
would still have been nearly three years less (33 months) than his current
sentence under the incorrect guidelines range.
The Government makes a strong argument for affirming under the
harmless error standard of review given the district court’s lengthy statement
of reasons for imposing Greer’s 120-month within-guidelines sentence. The
cases it cites in support of its argument, however, are distinguishable from
Greer’s case. For example, in United States v. Reyna-Aragon, 992 F.3d 381,
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388, 391 (5th Cir. 2021), this court affirmed the defendant’s sentence under
a harmless error standard of review. In doing so, we pointed to the district
court’s statements at sentencing regarding the seriousness of the defendant’s
criminal history and the applicable 18 U.S.C. § 3553(a) factors. Id. at 388. In
that case, the district court explicitly stated that it would have imposed the
same 60-month sentence regardless of whether it had committed error under
the guidelines, given the seriousness of the defendant’s child sex conviction.
Id. Our review of the sentencing transcript in Greer’s case reveals no such
statement or indication by the district court that it would have imposed the
same 120-month sentence regardless of an error under the guidelines.
The other cases that the Government cites are equally inapposite. In
United States v. Jones, 435 F.3d 541, 543 (5th Cir. 2006), this court held that
the error was harmless when the record “contain[ed] other evidence that the
district court would have imposed the maximum statutory sentence under
either a mandatory or advisory guideline scheme.” Likewise, in United States
v. Self, 461 F. App’x 375, 378 (5th Cir. 2012), we affirmed under the harmless
error standard of review on grounds that “[t]he record suggest[ed] that the
judge was committed to applying the statutory maximum because of the
devastating effect [of the defendant’s] crimes and because of [his] criminal
history.” In Greer’s case though, the district court only referenced the
statutory maximum to explain that Greer’s guidelines sentence had been
reduced to it, not to express that it was “committed” to imposing it.
To be clear, this court does not require magic words or talismanic
language to affirm a sentence under the harmless error standard of review.
But our precedent does require that the Government convincingly
demonstrate that the sentencing court had Greer’s 120-month sentence in
mind specifically, Richardson, 676 F.3d at 511 (quoting Ibarra–Luna, 628 F.3d
at 714), and that it would have imposed the 120-month sentence irrespective
of its error in calculating the guidelines. See Guzman-Rendon, 864 F.3d at 411;
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see also United States v. Soza, 874 F.3d 884, 895–96 (5th Cir. 2017) (“The
district court did not state that it would impose the same sentence if its
application of § 2K2.1(a)(4)(B) were erroneous. And, although it is true that
‘[t]he court’s imposition of the maximum allowable sentence . . . favors
finding any error was harmless,’ it is not clear, given the significant disparity
between the two ranges, that ‘the district court would have imposed the same
sentence had it not made the error.’”). Although the district court discussed
its reasons for imposing the 120-month sentence, referencing both Greer’s
criminal history and the 18 U.S.C. § 3553(a) sentencing factors, it expressly
stated that it was “going to sentence [Greer] to the Guideline in this case,
which is 120 months,” later noting that it was “the appropriate sentence.”
We have rejected harmless error arguments under similar facts, and we do so
again here. See United States v. Martinez-Romero, 817 F.3d 917, 926 (5th Cir.
2016) (“While the court expressed a multitude of reasons for imposing a
sentence above the properly calculated range, we can find no indication that
the court’s decision . . . was independent of the erroneous calculation that
called the court’s attention to that range in the first instance . . . On this
record, the [G]overnment cannot satisfy its heavy burden, and thus, the
sentencing error is not harmless.” (internal citation omitted)). While this was
a model sentencing hearing conducted under the then prescribed parameters,
the Supreme Court’s later change of its boundaries requires that in fairness
it be conducted again.
For these reasons, and because the district court did not have the
benefit of intervening Supreme Court authority when it issued Greer’s
sentence in 2019, we conclude that it should have an opportunity to
reconsider its sentencing decision in light of Borden.
IV. Conclusion
For the foregoing reasons, we VACATE Greer’s sentence and
REMAND in light of Borden v. United States, 141 S. Ct. 1817 (2021).
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