REVISED April 13, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-11078
Fifth Circuit
FILED
Conference Calendar April 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
DANTANA TANKSLEY,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
ON PETITION FOR REHEARING EN BANC
Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
The government has filed a petition for en banc rehearing. The en banc
petition remains pending. This court supplements its opinion entered on
petition for panel rehearing to reaffirm that, under Texas law, section
481.112(a) of the Texas Health and Safety Code is indivisible and “establishes
alternative means of punishing an offense in the continuum of drug
distribution.” Weinn v. State, 326 S.W.3d 189, 194 (Tex. Crim. App. 2010); see
United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017). We reached this
No. 15-11078
conclusion based on Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003). In
urging the en banc court to rehear the case, the government argues our holding
“is clearly inconsistent with Guerrero v. State, 305 S.W.3d 546 (Tex. Crim. App.
2009), which controls the issue and holds that manufacturing and possessing
with intent to deliver a controlled substance are separate offenses.” The
government’s argument is misguided because it is drawn from a plurality
opinion. Weinn makes clear that Guerrero never upset Lopez. Weinn, 326
S.W.3d at 193 (footnotes omitted) (explaining that, in Guerrero, the “majority,
comprised of two concurring judges and three dissenting judges, noted that the
legislature did not intend multiple punishments for manufacture and
simultaneous possession with intent to deliver with respect to a single quantity
of controlled substances.”). Without a doubt, Weinn “definitively” establishes
that Section 481.112 is an indivisible statute. See Mathis v. United States, 136
S.Ct. 2243, 2256 (2016). 1
1 We note a typographical error in the original Opinion, which wrongly referenced
“Hinkle’s holding that Section 481.112 is divisible.” Hinkle, of course, found Section 481.112
to be indivisible. To avoid any future confusion, we also note that our harmless error analysis
relied exclusively on the test set forth in United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir.
2010), because the district court did not consider the correct guidelines range. We have also
held in United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012): “[A] guidelines
calculation error is harmless where the district court has considered the correct guidelines
range and has stated that it would impose the same sentence even if that range applied.”
2