Case: 17-10516 Document: 00516179474 Page: 1 Date Filed: 01/25/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 25, 2022
No. 17-10516 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellant/Cross-Appellee,
versus
David Lee Garrett,
Defendant—Appellee/Cross-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-107-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Jolly, Jones, and Southwick, Circuit Judges.
E. Grady Jolly, Circuit Judge:
Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
offenders with three previous violent felony convictions are subject to
significantly increased sentences. When this court earlier reviewed the
sentence of the appellee, we held that a previous conviction for simple
robbery was a violent felony that qualifies as a predicate to an enhanced
sentence under the ACCA. United States v. Garrett, 810 F. App’x 353, 354
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No. 17-10516
(5th Cir. 2020) (unpublished). The Supreme Court has now vacated our
judgment and remanded for further consideration in the light of its decision
in Borden v. United States, 141 S. Ct. 1817 (2021). On remand, we conclude
that the robbery offense of which appellee was convicted under the Texas
simple robbery statute, Tex. Penal Code Ann. § 29.02, was robbery-
by-threat, a valid ACCA predicate for an enhanced sentence that was not
affected by Borden. We therefore reinstate our judgment reversing the district
court’s imposition of a lesser sentence, and remand to the district court for
resentencing under the ACCA.
I
A
In 2017, David Lee Garrett was convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Before this
conviction, he had two prior burglary convictions (both adequate predicates
for ACCA enhancement), as well as one conviction for simple robbery under
section 29.02 of the Texas Penal Code. On the basis of this criminal record,
the government sought to have Garrett sentenced under the ACCA, which
imposes a minimum of fifteen years’ imprisonment for those with three prior
predicate offenses. 18 U.S.C. § 924(e). 1 The district court ruled, however,
1
The ACCA provides in pertinent part 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 . . . such person shall be fined under this title and
imprisoned not less than fifteen years.
18 U.S.C. § 924(e)(1). A violent felony is defined as:
any crime punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying of a firearm,
knife, or destructive device that would be punishable by imprisonment for
such term if committed by an adult, that—
2
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that the robbery was not a valid predicate under the ACCA for an enhanced
sentence, and thus imposed a sentence of only eighty-four months. The
government appealed the sentence.
On appeal, we held that robbery was an ACCA predicate because it
categorically involved the use of force; we therefore vacated the sentence and
remanded for the imposition of an ACCA sentence. Garrett, 810 F. App’x at
354. Garrett filed a petition for a writ of certiorari. Shortly thereafter, the
Supreme Court decided Borden v. United States. Borden held that criminal
offenses that can be committed through mere recklessness do not require the
use of force and therefore are not violent felonies under the ACCA. 141 S. Ct.
at 1834. The Court vacated our decision in Garrett and remanded for further
consideration in the light of Borden.
B
On remand, Garrett argues principally that the Texas simple robbery
statute creates a single, indivisible crime that cannot support an enhanced
sentence because the statute allows a conviction for “recklessly caus[ing]
bodily injury to another” in the course of a theft. Tex. Penal Code Ann.
§ 29.02(a)(1) (emphasis added). 2 On the other hand, the government argues
(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.
18 U.S.C. § 924(e)(2)(B).
2
The statute is violated when a defendant, in the course of committing a theft,
either “(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 Ann. § 29.02(a). We refer to the first alternative as robbery-
by-injury and the second as robbery-by-threat.
3
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that the robbery statute is, in fact, divisible into separate crimes and that
Garrett was actually convicted of robbery-by-threat, which entails
“intentionally or knowingly threaten[ing] or plac[ing] another in fear of
imminent bodily injury or death,” an offense that cannot be committed
through mere recklessness. Id. § 29.02(a)(2). We now turn to resolving this
dispute.
II
Whether a crime is a predicate to an enhanced sentence under the
ACCA is a question of law reviewed de novo. United States v. Massey, 858 F.3d
380, 382 (5th Cir. 2017). As pertinent to this case, a crime is an ACCA
predicate when it is a violent felony, which is defined as a felony that “has as
an element the use, attempted use, or threatened use of physical force against
the person of another.” 3 18 U.S.C. § 924(e)(2)(B)(i).
It must be underscored that, to qualify as an ACCA predicate, a crime
must “ha[ve] as an element the use, attempted use, or threatened use of
force.” Id. (emphasis added). Courts therefore do not resort to a case-by-case
evaluation of the underlying facts of each conviction. Borden, 141 S. Ct. at
1822. Instead, we look at the statute itself and examine the elements of that
crime; that is to say, we apply a categorical analysis to determine whether the
statute itself necessarily and invariably requires the “use . . . or threatened
use of physical force.” Id.; 18 U.S.C. § 924(e)(2)(B)(i). “If any—even the
least culpable—of the acts criminalized do not entail that kind of force, the
statute of conviction does not categorically match the [force clause], and so
cannot serve as an ACCA predicate.” Borden, 141 S. Ct. at 1822. In other
words, any crime that can be committed without the use of force cannot serve
3
We refer to this provision as the ACCA’s force clause.
4
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as an ACCA predicate under the force clause, regardless of whether the
actual facts of the case at hand indicate that force was used. Id.
Some statutes, however, are divisible—that is, a single statute may
create multiple, distinct crimes, some violent, some non-violent. Mathis v.
United States, 136 S. Ct. 2243, 2249 (2016). A divisible statute requires us to
shift gears and apply the modified categorical approach: we are then allowed
to look at documents in the record, such as an indictment, jury instructions,
or a plea colloquy, for the limited purpose of determining the specific crime
under the statute for which the defendant was charged and convicted in order
to determine whether that crime of conviction requires as an element the use
of force. Id.; see United States v. Howell, 838 F.3d 489, 494 & n.21 (5th Cir.
2016).
Finally, regardless of whether the offense being examined arises from
an indivisible statute or constitutes a distinct crime within a divisible statute,
a crime cannot be a predicate under the ACCA’s force clause if it can be
committed through recklessness. “Offenses with a mens rea of recklessness
do not qualify as violent felonies” because “[t]hey do not require . . . the
active employment of force against another person.” Borden, 141 S. Ct. at
1834.
III
Against this background, the initial and primary question for us to
address is whether the Texas simple robbery statute creates one crime or
more than one—that is to say, whether it is divisible. If the statute is
indivisible and thus only states one crime, Garrett’s conviction does not
qualify under Borden as an ACCA violent felony because robbery can be
committed recklessly. See Tex. Penal Code Ann. § 29.02(a)(1)
(criminalizing “intentionally, knowingly, or recklessly caus[ing] bodily injury
to another” (emphasis added)). If, on the other hand, the statute is divisible
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into distinct crimes, we must then identify what crime, specifically, Garrett
committed and whether that crime constitutes a violent felony.
Our caselaw guides us in deciding whether the Texas simple robbery
statute is divisible into separate crimes. We have previously held that if a
statute only sets out alternative means of committing a crime, such that the
jury need not agree which of the various possible means was actually
employed in committing the crime, then the statute states only one crime and
consequently is indivisible. Howell, 838 F.3d at 497. But if the statute lays out
alternative elements of the crime, such that the jury must agree which of the
two or more potential alternatives is satisfied, the statute is divisible. Id. To
reiterate, “[t]he test to distinguish means from elements is whether a jury
must agree” that one alternative, and not the other, was committed. Id. In
conducting this inquiry, the Supreme Court has directed our attention to the
state statute itself, as well as state court decisions. Mathis, 136 S. Ct. at 2256.
A
We begin with the statute and find it unambiguous. 4 The Texas simple
robbery statute creates two distinct crimes, robbery-by-injury and robbery-
by-threat. The pertinent portion of the statute is divided into two separate,
numbered subdivisions separated by a semicolon. Moreover, the significance
4
The full text of the simple robbery statute provides that:
A person 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. Penal Code Ann. § 29.02.
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of this structural feature is confirmed by the conceptually distinct nature of
each alternative; causing bodily injury is behavior meaningfully different
from threatening or placing another in fear. And the different nature of these
two crimes is further made apparent by their different mental state
requirements; robbery-by-injury can be committed “intentionally,
knowingly, or recklessly,” while robbery-by-threat can only be committed
“intentionally or knowingly.” Tex. Penal Code Ann. § 29.02(a); see
also United States v. Wehmhoefer, 835 F. App’x 208, 211 (9th Cir. 2020)
(unpublished) (finding robbery under Texas law divisible and stating that
“[d]iffering mens rea requirements are a hallmark of divisibility”).
Looking to the provisions of a related state statute that has been held
divisible, our interpretation of the robbery statute is confirmed. The Texas
Court of Criminal Appeals, the final authority on Texas criminal law, has
explicitly stated that the state’s assault statute, which contains relevant
language analogous to the robbery statute, creates “three distinct criminal
offenses.” 5 United States v. Torres, 923 F.3d 420, 425 (5th Cir. 2019) (citing
Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008)). The court
explained that assault by causing bodily injury is a “result-oriented offense,”
5
The assault statute also contains a third subdivision not relevant here. The statute
reads in full:
A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including
the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury,
including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as
offensive or provocative.
TEX. PENAL CODE ANN. § 22.01.
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while assault by threat is a “conduct-oriented offense.” Landrian, 268
S.W.2d at 540. As such, the fundamental “gravamen of the offense” is
different in each type of assault. Id. at 541. This court has consequently
decided that the assault statute is divisible into separate crimes for the
purposes of the ACCA. Id. Given the closely related wording of the simple
robbery statute, we do not see how we could but conclude that the robbery
stated, under Texas caselaw, and indeed our precedent, is divisible.
B
Thus, we think that in Landrian, the Texas Court of Criminal Appeals
resolved the interpretation of the simple robbery statute for purposes of
Texas law. However, we should note, perhaps only parenthetically, that the
lesser Texas courts have also spoken on the subject. Although these courts
have not been entirely consistent, we think that lower state court cases,
considered as a whole, support—and certainly do not undermine—our
conclusion that simple robbery is divisible. In Loville v. State, No. 14-12-
00297-CR, 2013 Tex. App. LEXIS 5453, at *24 (Tex. App. May 2, 2013)
(unpublished), the court held that the “robbery statute provides two separate
criminal offenses—robbery causing bodily injury and robbery by threat” and
that the jury must be unanimous as to which offense was committed.
Likewise, another state court found that the robbery statute “provides two
separate, underlying robbery offenses.” Woodard v. State, 294 S.W.3d 605,
608–09 (Tex. App. 2009).
There is, unsurprisingly, more than one interpretation among the
Texas courts of appeal. For example, in Burton v. State, 510 S.W.3d 232, 236–
37 (Tex. App. 2017), the court found that jury instructions allowing a
conviction on a theory of either robbery-by-injury or robbery-by-threat did
not violate the defendant’s right to jury unanimity on the verdict. There are
other cases cited by Garrett, but we think they are either inapposite or
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unpersuasive. 6 Although state appellate court decisions are not unanimous,
we conclude, as we have said, that lower court cases considered as a whole
are supportive of the notion that simple robbery is divisible into separate
crimes; and, in any event, these court of appeal cases to the contrary have
significantly diminished authority in the shadow of Landrian and the Texas
Court of Criminal Appeals.
IV
We have thus reviewed the Texas statute and state caselaw, leading us
to hold that the Texas simple robbery statute is divisible. Given this
conclusion, the remainder of our analysis may be addressed in short order.
Because the statute is divisible, we apply the modified categorical approach
to see which offense, under the simple robbery statute, is the crime of
conviction. Alejos-Perez v. Garland, 991 F.3d 642, 648 (5th Cir. 2021).
Applying the modified categorical approach, we are permitted to look to the
indictment and the judicial confession entered on Garrett’s guilty plea. We
see that both documents state that Garrett “did then and there intentionally
and knowingly threaten and place [the complainant] in fear of imminent
bodily injury and death.” In other words, the record recites the statutory
language pertaining to robbery-by-threat and makes no mention of robbery-
6
Garrett points to Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014). But
Cooper was a double jeopardy decision, id. at 427, and double jeopardy cases “shed little
light on divisibility” because they generally will not provide the needed certainty on the
crucial jury unanimity question. Alejos-Perez v. Garland, 991 F.3d 642, 650 (5th Cir. 2021)
(quoting United States v. Herrold, 883 F.3d 517, 528–29 (5th Cir. 2019) (en banc)).
Similarly, Martin v. State, No. 03-16-00198-CR, 2017 Tex. App. LEXIS 11181, at *6 (Tex.
App. Dec. 1, 2017), had nothing to do with jury unanimity and instead considered
sufficiency of the evidence. Alexander v. State, No. 02-15-00406-CR, 2017 Tex. App.
LEXIS 4072, at *19 (Tex. App. May 4, 2017), is closer to the mark in that it does deal with
jury unanimity, but the defendant there conceded that the jury instructions charging
theories of robbery-by-threat and robbery-by-injury as interchangeable alternatives were
proper, and the court therefore was not required to decide the issue.
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by-injury. Garrett’s crime was thus robbery-by-threat under Texas Penal
Code § 29.02(a)(2). Robbery-by-threat is a violent felony because
intentionally or knowingly threatening or placing another in fear of imminent
bodily injury or death plainly constitutes the “threatened use of physical
force” under the ACCA. 7 18 U.S.C. § 924(e)(2)(B)(i). Furthermore, because
robbery-by-threat requires a mental state of intent or knowledge rather than
mere recklessness, Tex. Penal Code Ann. § 29.02(a)(2), our holding
today is consistent with Borden. Garrett’s conviction for robbery-by-threat is
thus a violent felony under the ACCA and may serve as a predicate to an
enhanced sentence. The district court’s imposition of a non-ACCA sentence
of eighty-four months is, once again, VACATED, and the case is
REMANDED for resentencing under the ACCA.
Because of the time constraints imposed by Garrett’s release date, the
Clerk is directed to issue the mandate forthwith.
7
Garrett seeks to evade this conclusion. He asserts that Borden went further than
ruling that crimes of recklessness are not ACCA violent felonies, arguing that the decision
on recklessness is merely the application of a much broader holding that a defendant must
“direct his action at, or target, another individual” to commit an ACCA predicate. Borden,
141 S. Ct. at 1825. But Garrett cites no case or circumstance applying Borden in this way.
Furthermore, the Supreme Court was explicit that its holding was specifically directed at
recklessness, as it appeared in the statute. Id. at 1822 (“We hold that a reckless offense
cannot so qualify [as a violent felony].”).
10