Case: 22-10544 Document: 00516858507 Page: 1 Date Filed: 08/15/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 15, 2023
No. 22-10544 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Jeremy Glenn Powell,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-511-1
______________________________
Before Higginbotham, Graves, and Douglas, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
Jeremy Glenn Powell’s sentence was enhanced by enhancement
provisions in the Armed Career Criminal Act. Powell appeals, arguing that
following the Supreme Court’s decision in United States v. Taylor, a
conviction for Texas robbery-by-threat is no longer a predicate offense under
that act. We AFFIRM.
I.
In 2017, Jeremy Glenn Powell pled guilty without a plea agreement to
possession of a firearm after a felony conviction, in violation of 18 U.S.C. §
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922(g)(1). At the time of his plea, Powell had been convicted of thirty-two
crimes. Five are relevant here: Texas burglary of a habitation, Texas robbery-
by-threat, Texas robbery-by-injury (twice), and Texas aggravated robbery-
by-threat with a deadly weapon. At Powell’s sentencing, the Government
argued that these five crimes were each predicate offenses under the ACCA
subjecting Powell to a mandatory minimum of 15 years’ imprisonment. The
district court rejected that argument, relying on then-applicable precedent,
and sentenced Powell to 120 months’ imprisonment. Both Parties appealed.
The year after Powell was sentenced and while his appeal was
pending, this Court held in United States v. Burris that Texas simple robbery
was a categorically violent felony, 1 prompting a separate panel to vacate
Powell’s sentence and remand for resentencing. 2 But before Powell was
resentenced two additional decisions issued. First, in 2021 the Supreme
Court vacated Burris in light of its decision in Borden v. United States, 3 which,
in broad strokes, held that offenses committed with a mens rea of recklessness
could not qualify as an ACCA predicate offense. 4 Second, in January 2022
this Court in United States v. Garrett held that Texas simple robbery was
divisible into two distinct crimes—robbery-by-injury and robbery-by-
threat—and that robbery-by-injury did not categorically qualify as an ACCA
predicate offense but that Texas robbery-by-threat did. 5 The following
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1
See 920 F.3d 942, 945 (5th Cir. 2019), cert. granted, judgment vacated, 141 S. Ct.
2781 (2021), and abrogated by Borden v. United States, 141 S. Ct. 1817 (2021).
2
See United States v. Powell, 785 F. App’x 227, 227 (5th Cir. 2019) (unpublished)
(per curiam).
3
141 S. Ct. 2780–81 (2021).
4
See generally 141 S. Ct. 1817 (2021).
5
See generally 24 F.4th 485 (5th Cir. 2022).
2
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month, this Court remanded Powell’s case for resentencing in accordance
with Garrett. 6
On remand in May 2022, Powell argued that his sentence should not
be enhanced under the ACCA, as robbery-by-threat did not qualify as an
ACCA predicate because it could be accomplished without the use or
threatened use of force and absent that he did not have three ACCA predicate
convictions. Powell conceded that Garrett foreclosed his challenge but stated
that he was asserting it to preserve it “for purposes of appellate review.”
That month, the district court sentenced Powell to 189 months of
imprisonment pursuant to the ACCA, finding that three of his convictions—
burglary of a habitation, robbery-by-threat, and aggravated robbery-by-threat
with a deadly weapon—were ACCA predicates, and ordered the sentence to
run concurrently with the undischarged portion of a prior ACCA sentence
that Powell agreed not to contest. The district court also imposed a three-
year term of supervised release. On June 2, 2022, Powell timely appealed.
Three weeks later, the Supreme Court issued United States v. Taylor,
which held that attempted Hobbs Act robbery was not categorically a
“violent felony” under the ACCA because it did not require the use,
attempt, or threat of force, as the substantial step requirement for an attempt
conviction could be met absent any of these three elements. 7 Now on appeal,
Powell argues that Garrett cannot stand post-Taylor.
_____________________
6
See United States v. Powell, No. 18-11050, 2022 WL 413943, at *1–3 (5th Cir. Feb.
10, 2022).
7
See generally 142 S.Ct. 2015 (2022).
3
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II.
A.
“We review de novo the district court’s characterization of a prior
offense as a violent felony under ACCA.” 8
B.
The ACCA provides that anyone who “knowingly violates subsection
. . . (g) of section 922 shall be fined under this title, imprisoned for not more
than 15 years, or both.” 9 It also provides that any defendant with “three
previous convictions by any court . . . for a violent felony . . . shall be fined
under this title and imprisoned not less than fifteen years,” 10 thereby
addressing the “special danger” associated with “armed career criminals.” 11
The Act 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, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another. 12
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8
United States v. Montgomery, 974 F.3d 587, 592 (5th Cir. 2020) (citing United
States v. Massey, 858 F.3d 380, 382 (5th Cir. 2017)), cert. denied, 141 S. Ct. 2823 (2021).
9
18 U.S.C. § 924(a)(8).
10
Id. § 924(e)(1).
11
Begay v. United States, 553 U.S. 137, 146 (2008).
12
18 U.S.C. § 924(e)(2)(B).
4
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“Subsection (i) of this definition is known as the elements clause.” 13
Subsection (ii) is divided into two halves—the first is the “enumerated
offenses” clause, while “the end of subsection (ii)—‘or otherwise involves
conduct that presents a serious potential risk of physical injury to another’—
is known as the residual clause.” 14 The Supreme Court’s 2015 decision in
Johnson v. United States struck down the residual clause as unconstitutionally
vague. 15 By contrast, the other definitions of the term “violent felony”
remain viable. 16
To determine whether a given crime falls under the elements clause,
courts first look to the text of the statute at issue to determine if it is
“divisible,” meaning that it “create[s] multiple, distinct crimes, some
violent, some non-violent.” 17 If the statute is indivisible, courts employ a so-
called “categorical approach,” 18 meaning jurists “‘look only to the statutory
definitions’—i.e., the elements—of [an offense], and not ‘to the particular
facts underlying those convictions.’” 19 In this context, “[e]lements are the
constituent parts of a crime’s legal definition—the things the prosecution
must prove to sustain a conviction.” 20 And “[i]f 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 federal standard, and so cannot
_____________________
13
Welch v. United States, 578 U.S. 120, 123 (2016).
14
Id.
15
576 U.S. 591, 606 (2015).
16
Id.
17
Garrett, 24 F.4th at 488 (citing Mathis v. United States, 579 U.S. 500, 505 (2016)).
18
Johnson v. United States, 559 U.S. 133, 144 (2010).
19
Descamps v. United States, 570 U.S. 254, 261 (2013) (quoting Taylor v. United
States, 495 U.S. 575, 600 (1990)).
20
Mathis, 579 U.S. at 504 (internal quotation marks and citation omitted).
5
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serve as an ACCA predicate.” 21 “In other words, any crime that can be
committed without the use of force cannot serve as an ACCA predicate under
the force clause, regardless of whether the actual facts of the case at hand
indicate that force was used.” 22
Where a statute is divisible, on the other hand, courts employ a so-
called “modified categorical approach” 23 wherein they examine the trial
record, “including charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms,” to ascertain which of the disjunctive
elements formed the basis of the conviction. 24 Having done so, courts then
“determine whether that crime of conviction requires as an element the use
of force.” 25 Only then is it a predicate offense for the ACCA’s sentencing
enhancement. 26
C.
Texas Penal Code § 29.02(a) provides that a person commits robbery
when:
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
_____________________
21
Borden, 141 S. Ct. at 1822 (citing Johnson, 559 U.S. at 137).
22
Garrett, 24 F.4th at 488.
23
See Mathis, 579 U.S. at 505–06.
24
Johnson, 559 U.S. at 144; see also Descamps, 570 U.S. at 257, 277–78.
25
Garrett, 24 F.4th at 488 (citing Mathis, 579 U.S. at 504).
26
Mathis, 579 U.S. at 505.
6
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(2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death. 27
In United States v. Garrett, we turned to whether a conviction under
the Texas simple robbery statute was an ACCA predicate offense. 28
Following a review of the statute’s text as well as applicable Texas
jurisprudence, the Garrett panel held that the statute is “divisible,” 29
“creat[ing] two distinct crimes[:] robbery-by-injury and robbery by threat.” 30
Garrett then concluded that “[r]obbery-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.” 31
Six months after this Court decided Garrett, the Supreme Court
issued United States v. Taylor. 32 Taylor addressed whether attempted Hobbs
Act robbery constituted a “violent felony” under the ACCA. 33 The Court
concluded that the offense did not have as an element the use, attempted use,
or threatened use of force because one could be convicted absent any of those
three elements, meaning it was not a violent felony and thus not an ACCA
predicate offense. 34 To illustrate the point, Justice Gorsuch hypothesized an
attempted robbery wherein the would-be robber drafts a note to the cashier
_____________________
27
Tex. Penal Code § 29.02(a).
28
See generally 24 F.4th 485.
29
Id. at 491.
30
Id. at 489.
31
Id.
32
142 S. Ct. 2015 (2022).
33
See generally id.
34
See generally id. at 2019–26.
7
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demanding money under threat of harm but law enforcement foils the
robber’s plans before he can give the note to the cashier. 35 Because the would-
be robber was caught before he perpetrated the robbery, he did not use force,
threaten force, or attempt to use force; “[h]e may have intended and
attempted to do just that, but he failed.” 36
Powell challenges Garrett in light of Taylor, contending that because
Taylor demands a communicated threat, and Texas simple robbery is broader
than other states’ robbery statutes in allowing for a conviction absent such a
threat, Garrett cannot stand. The Government counters with three separate
but intertwined arguments. (1) As this Court has applied Garrett before and
after Taylor, this Court has already implicitly rejected Powell’s argument. (2)
This Court’s high bar for interpreting an intervening Supreme Court
decisions as overturning its precedent precludes reading Taylor to overturn
Garrett. (3) Distinctions between attempted Hobbs Act robbery at issue in
Taylor and robbery-by-fear in the present action render Taylor inapposite.
Powell’s argument ultimately cannot stand.
D.
The Government’s first rebuttal argument falls short. “It is a firm rule
of this circuit that in the absence of an intervening contrary or superseding
decision by this court sitting en banc or by the United States Supreme Court,
a panel cannot overrule a prior panel’s decision.” 37 However, “[a]n opinion
_____________________
35
Id. at 2021.
36
Id.
37
United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010) (quoting Burge v. Parish
of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)), aff’d, 566 U.S. 231 (2012).
8
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restating a prior panel’s ruling does not sub silentio hold that the prior ruling
survived an uncited Supreme Court decision.” 38
None of the three cases applying Garrett post-Taylor directly address
Taylor’s effect. 39 They do not cite Taylor nor consider its impact on Garrett.
And for good reason: as “[a]s a general rule, we do not consider arguments
raised for the first time in a . . . 28j letter.” 40 Indeed, in all three cases,
briefing was completed pre-Taylor, and the Supreme Court’s decision was
raised in a one-paragraph Rule 28j letter. And as counsel pointed out at oral
argument, neither party moved for more exhaustive supplemental briefing on
the issue. They do not bind this panel. 41
E.
The Government’s next two arguments tread the same ground: did
Taylor overturn Garrett?
“For a Supreme Court decision to override a Fifth Circuit case, the
decision must unequivocally overrule prior precedent; mere illumination of
_____________________
38
Gahagan v. USCIS, 911 F.3d 298, 302 (5th Cir. 2018).
39
See generally United States v. Sosebee, 59 F.4th 151 (5th Cir. 2023); United States
v. Wheeler, No. 19-11022, 2022 WL 17729412 (5th Cir. Dec. 16, 2022) (unpublished) (per
curiam); and United States v. Senegal, No. 19-40930, 2022 WL 4594608 (5th Cir. Sept. 30,
2022) (unpublished) (per curiam).
40
Diaz Esparza v. Garland, 23 F.4th 563, 571 n.51 (5th Cir.) (quoting United States
v. Huntsberry, 956 F.3d 270, 282 n.4 (5th Cir. 2020)), cert. denied, 143 S. Ct. 87 (2022); see
also United States v. Arellano-Banuelos, 912 F.3d 862, 865 n.2 (5th Cir. 2019) (“The proper
time to closely examine the record and develop legal defenses is before the completion of
briefing.” (quoting Martinez v. Mukasey, 519 F.3d 532, 545 (5th Cir. 2008))).
41
See United States v. Brune, 991 F.3d 652, 664 (5th Cir. 2021) (refusing to apply
the precedent stated in published cases issued after a Supreme Court case that failed to
“grapple[] with” the relevant question at issue), cert. denied, 142 S. Ct. 755 (2022); In re
Bonvillian Marine Serv., Inc., 19 F.4th 787, 794 (5th Cir. 2021) (holding similarly).
9
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a case is insufficient,” 42 and “an intervening change in the law [cannot be] a
mere ‘hint’ of how the [Supreme] Court might rule in the future.” 43 At the
same time it “is a judgment call—there is no hard-and-fast requirement, for
instance, that a Supreme Court decision explicitly overrule the circuit
precedent at issue, or specifically address the precise question of law at
issue.” 44 In other words,
[it] depends on context. That two decisions involve different
statutes is not dispositive. Sometimes a Supreme Court
decision involving one statute implicitly overrules our
precedent involving another statute. Sometimes it does not.
The overriding consideration is the similarity of the issues
decided. 45
This said, we pause to recognize a compositional frame: the limited reach of
ACCA jurisprudence. Whether a given offense falls within § 924(e)(2)(B)’s
elements clause demands a focus upon the “specific offense, . . . asking
whether the elements of that specific crime include the use of force.” 46 In other
words, a court’s interpretation of the ACCA’s applicability to any one crime
is cabined to its text. So for one crime’s status as an ACCA predicate offense
_____________________
42
Gahagan, 911 F.3d at 302 (alteration omitted) (quoting United States v. Petras,
879 F.3d 155, 164 (5th Cir. 2018)).
43
Hines v. Quillivan, 982 F.3d 266, 271 (5th Cir. 2020) (second alteration in
original) (quoting United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)); Petras, 879
F.3d at 164 (holding that “mere illumination of a case is insufficient” to abrogate our circuit
precedent).
44
In re Bonvillian, 19 F.4th at 794.
45
Gahagan, 911 F.3d at 302 (internal citations and footnote omitted).
46
United States v. Butler, 949 F.3d 230, 233 (5th Cir. 2020) (emphases added). This
observation sets aside broad-based rules the Supreme Court announces, such as
invalidating the entire residual clause (Johnson) or invalidating all crimes involving a mens
rea of recklessness (Borden), which obviously have far wider repercussions.
10
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to influence the status of another offense, there must be a high degree of
overlap with the precise language of the second crime’s elements. Against
this backdrop, we turn to Taylor and Texas robbery-by-threat.
Taylor addresses an attempted robbery offense, not a completed
robbery. The elements of attempted Hobbs Act robbery include: (1)
“intend[ing] to unlawfully take or obtain personal property by means of
actual or threatened force” and (2) “complet[ing] a ‘substantial step’ toward
that end.” 47 “And whatever a substantial step requires,” the Court
elaborated, “it does not require the government to prove that the defendant
used, attempted to use, or even threatened to use force against another
person or his property.” 48 This second element—the crux of the Supreme
Court’s reasoning—is nowhere to be found in the Texas robbery-by-threat
offense. 49 The Court went further, relying upon the distinction between a
completed act and an attempted act:
The elements clause does not ask whether the defendant
committed a crime of violence or attempted to commit one. It
asks whether the defendant did commit a crime of violence—
and it proceeds to define a crime of violence as a felony that
includes as an element the use, attempted use, or threatened
use of force. 50
Given this distinction, Justice Gorsuch wrote, “[w]hatever one might say
about completed Hobbs Act robbery, attempted Hobbs Act robbery does not
_____________________
47
Taylor, 142 S. Ct. at 2020 (citing United States v. Resendiz-Ponce, 549 U.S. 102,
107 (2007)).
48
Id.
49
Compare 18 U.S.C. § 1951(a), with Tex. Penal Code § 29.02(a).
50
Taylor, 142 S. Ct. at 2022.
11
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satisfy the elements clause.” 51 Taylor thus expressly addresses offenses that
criminalize attempts that may be undertaken without a use or threat of force.
In other words, Taylor does not reach the crime at issue here and cannot be
said to clearly overturn Garrett, given this Court’s caution in reading a
Supreme Court decision as overturning our caselaw that did not do so
directly.
*****
Taylor does not undermine or contravene Garrett’s conclusion that
Texas robbery-by-threat constitutes a violent felony.
We AFFIRM.
_____________________
51
Id. at 2020. Further: “Yes, to secure a conviction the government must show an
intention to take property by force or threat, along with a substantial step toward achieving
that object. But an intention is just that, no more. And whatever a substantial step requires,
it does not require the government to prove that the defendant used, attempted to use, or
even threatened to use force against another person or his property.” Id.
12