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United States v. Lerma

United States Court of Appeals, Fifth Circuit

December 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
NOEL LERMA, Defendant-Appellant.

         Appeal from the United States District Court for the Southern District of Texas

          Before DAVIS, GRAVES, and COSTA, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge:

         The question presented in this case is whether a conviction under the Texas aggravated robbery statute, Texas Penal Code § 29.03, qualifies as a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Concluding that the statute is divisible, and that the crime for which appellant, Noel Lerma, was convicted previously at least three times is a "violent felony" under the ACCA, we AFFIRM.

         I.

         The ACCA provides for a 15-year mandatory minimum term of imprisonment and a five-year maximum term of supervised release for those defendants convicted of being a felon in possession of a firearm following three prior convictions for a "violent felony." § 924(e)(1). Absent that sentence enhancement, the felon-in-possession statute sets a 10-year maximum prison sentence and a three-year maximum supervised release term. See § 924(a)(2); 18 U.S.C. § 3583(b)(2).

         In 1998, Lerma entered into a plea agreement with the United States wherein he admitted to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In a subsequent modified plea agreement, Lerma agreed to be sentenced to 15 years in prison "as an Armed Career Offender pursuant to 18 U.S.C. § 924(e)." Lerma did not appeal his sentence, and, in fact, he completed his 15-year prison term in 2013. However, Lerma has not begun to serve his five years of supervised release because he remains in federal prison, serving a 20-year consecutive sentence for unrelated drug charges.

         Lerma now seeks to vacate, set aside, or correct his ACCA sentence pursuant to 28 U.S.C. § 2255 based upon the following. In 2015, the Supreme Court struck down the ACCA's "residual clause" as void for vagueness in Johnson v. United States, --- U.S. ---, 135 S.Ct. 2551 (2015). Pre-Johnson, the ACCA defined the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year that also:

(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). The "residual clause" is the last phrase of § 924(e)(2)(B)(ii): "otherwise involves conduct that presents a serious potential risk of physical injury to another."

Johnson did "not call into question application of the Act to the four enumerated offenses" listed in § 924(e)(2)(B)(ii), nor did it call into question any aspect of § 924(e)(2)(B)(i), also known as the "force clause." 135 S.Ct. at 2563. Thus, post-Johnson, the ACCA defines the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year[1] that also:

(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, extortion, or involves the use of explosives.

         In 2016, the Supreme Court held that its decision in Johnson announced a substantive rule that applies retroactively on collateral review. Welch v. United States, --- U.S. ---, 136 S.Ct. 1257, 1265 (2016). Lerma, therefore, argues that his sentence imposed under the ACCA cannot stand.[2] His argument is three-fold. First, he asserts that his sentence could not have constitutionally rested upon the residual clause in light of Johnson and Welch. Second, he contends that his prior convictions were not for burglary, arson, or extortion, nor did they involve the use of explosives, as required by § 924(e)(2)(B)(ii). Third, he argues that the Texas aggravated robbery statute, Texas Penal Code § 29.03, does not satisfy the force clause because it does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." See § 924(e)(2)(B)(i).

         The Government concedes that Lerma's sentence could not have constitutionally rested upon the residual clause in light of Johnson and Welch. The Government also concedes that Lerma's prior convictions were not for any of the four enumerated offenses listed in § 924(e)(2)(B)(ii). The only question then is whether Lerma's sentence can be sustained pursuant to the ACCA's force clause. That is, does the crime under the Texas aggravated robbery statute for which Lerma was previously convicted at least three times "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another"?

         The district court answered that question in the affirmative and denied Lerma's § 2255 motion. From that denial, and the district court's subsequent issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253, Lerma now appeals.[3] As set forth below, we also conclude that the crime under Texas Penal Code § 29.03 for which Lerma was previously convicted at least three times qualifies as a violent felony under the force clause of the ACCA because it has as an element the use, attempted use, or threatened use of physical force against the person of another.

         II.

         A.

         The issue presented by this case requires us first to determine the elements of aggravated robbery under Texas Penal Code § 29.03. The Supreme Court instructs that "[e]lements are the constituent parts of a crime's legal definition-the things the prosecution must prove to sustain a conviction." Mathis v. United States, --- U.S. ---, 136 S.Ct. 2243, 2248 (2016) (internal quotation marks and citation omitted). "At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant." Id. at 2248 (citations omitted). "[A]t a plea hearing, they are what the defendant necessarily admits when he pleads guilty." Id. (citation omitted).

         An element of a crime must be distinguished from the means of satisfying a single element. See id. at 2249-51. For example, a statute may require the use of a "deadly weapon" as an element of a crime. The statute may then further list as potential deadly weapons a knife, gun, bat, or similar weapon. That "list merely specifies diverse means of satisfying a single element of a single crime." Id. at 2249. A jury need not find any particular weapon in the list was used in order to convict, so long as all of the jurors agreed that the defendant used a deadly weapon. See id.

         B.

         Criminal statutes are indivisible or divisible. An indivisible statute sets out a single set of elements to define a single crime. In contrast, a divisible statute "list[s] elements in the alternative, and thereby define[s] multiple crimes." Id. at 2249. If a statute is indivisible, the sentencing court must apply the "categorical approach." See id. at 2248. This approach requires the sentencing court, when determining whether a crime qualifies as a violent felony under the force clause, to focus solely on whether the elements of the crime of conviction include the use, attempted use, or threatened use of physical force against the person of another. See id. The sentencing court is not permitted to review the particular facts of the case. Id.

         When a statute is divisible, however, the sentencing court may use the "modified categorical approach" to determine which elements played a part in the defendant's conviction. Id. at 2253. The modified approach serves "as a tool to identify the elements of the crime of conviction when a statute's disjunctive phrasing renders one (or more) of them opaque." Id. (citation omitted). Under that approach, the sentencing court is allowed to look "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. at 2249 (citations omitted). The court can then determine, in deciding whether the crime satisfies the force clause, if one of those elements included the use, attempted use, or threatened use of physical force against the person of another.

         In this case, the district court began its analysis by noting that the parties had "agreed that the Texas aggravated robbery statute was a divisible statute for which the modified categorical approach was appropriate." The district court then went on to analyze the statute as a ...


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