from the United States District Court for the Southern
District of Texas
BARKSDALE, GRAVES, and COSTA, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE:
Jesus Montalvo Davila moves to recall the mandate and for
leave to file an out-of-time petition for panel rehearing in
light of United States v. Herrold, 883 F.3d 517 (5th
Cir. 2018) (en banc). In addition, the Federal Public
Defender moves to be reappointed as Montalvo's counsel on
appeal. We grant the motions.
2015, Montalvo pleaded guilty to reentering the United States
in violation of 8 U.S.C. § 1326(a) and (b)(2). The
presentence report recommended applying a 16-level
"crime of violence" enhancement pursuant to §
2L1.2(b)(1)(A)(ii) of the 2015 Sentencing Guidelines based on
Montalvo's prior conviction for burglary of a habitation
under Texas Penal Code § 30.02(a). Montalvo objected,
arguing that his prior conviction did not qualify for that
enhancement because Texas Penal Code § 30.02(a) is an
"indivisible" statute and is categorically broader
than generic "burglary of a dwelling, " the
pertinent "crime of violence" enumerated in the
2015 Guidelines. See U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii) (2015). The district court overruled the
objection. With the enhancement, Montalvo faced a Guidelines
range of 57 to 71 months in prison. The district court
granted Montalvo's request for a downward variance and
sentenced him to 47 months in prison. Had the enhancement not
been applied, Montalvo maintains he would have faced a
Guidelines range of 24 to 30 months in prison.
appealed, challenging his sentence on the same grounds as in
the district court. He argued that the Supreme Court's
intervening decision in Mathis v. United States, 136
S.Ct. 2243 (2016), supported finding the Texas burglary
statute to be indivisible, but a panel of this court soon
rejected that contention in United States v. Uribe,
838 F.3d 667, 670-71 (5th Cir. 2016). Because Uribe
foreclosed Montalvo's indivisibility argument, we
affirmed his sentence. United States v. Montalvo
Davila, 688 Fed.Appx. 285 (5th Cir. 2017). Judgment was
entered on May 1, 2017. On May 4, 2017, the court granted the
Federal Public Defender's motion to withdraw as
Montalvo's counsel. The mandate issued on May 23, 2017.
February 20, 2018, the en banc court issued its decision in
Herrold, holding that the Texas burglary statute is
indivisible and overruling Uribe. Herrold,
883 F.3d at 529 ("In light of Texas case law, we hold
that Texas Penal Code §§ 30.02(a)(1) and (a)(3) are
not distinct offenses, but are rather separate means of
committing one burglary offense. To the extent that it is
inconsistent with this holding, we also overrule our earlier
decision in United States v. Uribe."). The
mandate in Herrold issued on February 28, 2018.
March 2, 2018, Montalvo filed his motion to recall the
mandate and for leave to file an out-of-time petition for
panel rehearing. The Federal Public Defender thereafter moved
to be reappointed as Montalvo's counsel.
court has the "inherent power to recall [its]
mandates." Calderon v. Thompson, 523 U.S. 538,
549 (1998); United States v. Emeary, 794 F.3d 526,
527-28 (5th Cir. 2015) (Dennis, J., in chambers). "Our
authority to recall our own mandate is clear, "
United States v. Tolliver, 116 F.3d 120, 123 (5th
Cir. 1997), but it is not unbounded. Fifth Circuit Rule 41.2
provides that "[o]nce issued a mandate will not be
recalled except to prevent injustice." This rule
reflects the general precept that recalling the mandate is
appropriate "only in extraordinary circumstances."
Calderon, 523 U.S. at 550.
faced with a motion to recall its mandate, this court must
balance two opposing interests: the interest in
"prevent[ing] injustice" in the case at hand, 5th
Cir. R. 41.2, and the interest in maintaining the finality of
the judgment already rendered in the case. Assessing the
relative weights of these competing considerations and
determining whether the overall balance warrants recalling
the mandate lies within the court's sound discretion.
Am. Iron & Steel Inst. v. EPA, 560 F.2d 589,
594-95 (3d Cir. 1977) ("Above all, . . . recall of a
mandate is a mode of relief that falls within the ambit of a
court's discretion[, ] . . . [a]nd decisions concerning
the propriety of such relief must be rendered on a
case-by-case basis."). Exercise of that discretion is
subject to certain parameters, however. In particular, a
proper exercise of discretion requires that the court give
due regard to relevant precedent. In re Volkswagen of
Am., Inc., 545 F.3d 304, 310 & n.4 (5th Cir. 2008)
(en banc) ("[A] court must exercise its discretion
within the bounds set by . . . relevant, binding
precedents."); see also United States v.
Escalante-Reyes, 689 F.3d 415, 425-26 (5th Cir. 2012)
(en banc) (explaining that the en banc court's decision
to exercise its discretion under the fourth prong of
plain-error review was consistent with precedent). Prior
caselaw can be relevant to a decision to recall the mandate
in two respects. First, it can assist in identifying
appropriate factors to weigh against the countervailing
interest in finality. Second, since any decision to recall
the mandate (or not) reflects a particular instance of a
court having balanced the competing interests, a prior
decision may direct the same court toward a specific result
in a later case. How strongly a given precedent guides a
court's discretion in a later case largely depends on the
factors present in each case and the relative weight assigned
to those factors.Within the metes and bounds set by relevant
precedent, however, courts retain ample room to make the
case-specific judgment calls that inhere in discretionary
rulings of this sort.
primarily on this court's precedent in Tolliver,
Montalvo argues that recalling the mandate in this case is
appropriate because: (1) Herrold has rendered our
previous decision affirming his sentence "demonstrably
wrong, " and (2) failure to recall the mandate would
produce an unwarranted disparity between him and similarly
situated defendants in other cases. We agree that both of
these factors favor recall and find that a third
consideration- Montalvo's demonstrated diligence in
asserting his claim-does as well.
exist not merely to decide cases, but to decide them
correctly. See W. Virginia Oil & Gas Co. v. George E.
Breece Lumber Co., 213 F.2d 702, 704 (5th Cir. 1954)
(recognizing "two principles of judicial administration
founded on sound public policy, namely, that litigation must
finally and definitely terminate within a reasonable time and
that justice must be done unto the parties"). The public
interest in correcting an erroneous conviction or sentence
"may counsel a more generous recall rule in criminal
cases" than in other contexts. 16 Charles Alan Wright,
Arthur R. Miller, & Edward H. Cooper, Federal Practice
and Procedure § 3938, p. 880 (3d ed. 2012) (hereinafter,
"Wright & Miller").
we have recognized that recalling the mandate is appropriate
when a subsequent decision of the Supreme Court or this court
renders a previous decision "demonstrably wrong."
Tolliver, 116 F.3d at 123; United States v.
Fraga-Araigo, 281 F.3d 1278, 2001 WL 1692406, at *1 (5th
Cir. 2001) (unpublished decision). A previous decision is
"demonstrably wrong" if it "directly conflicts
with" the subsequent decision. Tolliver, 116
F.3d at 123; see also Sargent v. Columbia Forest Prods.,
Inc., 75 F.3d 86, 90 (2d Cir. 1996) ("One
circumstance that may justify recall of a mandate is '[a]
supervening change in governing law that calls into serious
question the correctness of the court's
judgment.'" (quoting McGeshick v. Choucair,
72 F.3d 62, 63 (7th Cir. 1995))).
Tolliver, this court recalled its mandate after the
Supreme Court "clearly overrule[d] [the] precedent upon
which [this court] had relied to affirm" a
defendant's convictions. 116 F.3d at 124. The same
circumstance is present here and favors recalling the mandate
at least as strongly as it did in Tolliver.
Herrold is a "subsequent decision" that
"directly conflicts with" our previous decision
affirming Montalvo's sentence. Herrold holds
that the Texas burglary statute is broader than generic
burglary, meaning that Montalvo's prior conviction under
that statute does not qualify for the 16-level "crime of
violence" enhancement he received. See Herrold,
883 F.3d at 529. Had Herrold been decided at the
time we issued our previous decision, we would not have
followed Uribe's contrary holding and would not
have affirmed Montalvo's sentence. The interest in
correcting our decision, now that Herrold has
rendered it "demonstrably wrong, " weighs heavily
in favor of recalling the mandate in this case.
the mandate is also appropriate 'where there is a danger
of incongruent results in cases pending at the same
time.'" Tolliver, 116 F.3d at 123 (quoting
Am. Iron & Steel Inst., 560 F.2d at 594);
accord Greater Boston Television Corp. v. FCC, 463
F.2d 268, 278-79 (D.C. Cir. 1971); see also 16
Wright & Miller § 3938, p. 880 (citing "the
desire to achieve like treatment of defendants in like
situations" as a factor favoring recalling the mandate
in criminal cases). In Tolliver, the court granted a
defendant's motion to recall the mandate after the
Supreme Court vacated his co-defendants' convictions
under the same statute. 116 F.3d at 123-24. Combined with the
previous factor, the court found that the potential
incongruity made recall "appropriate and in the interest
of justice." Id. (relying on Gradsky v.
United States, 376 F.2d 993, 995 (5th Cir. 1967)).
to recall the mandate in the present case would create an
unwarranted sentencing disparity between Montalvo and
similarly situated defendants in cases where the mandate has
not yet issued. Although these individuals are not
Montalvo's co-defendants, the resultant disparity would
undermine a central purpose of the Sentencing Guidelines,
see Tapia v. United States, 564 U.S. 319, 324-25
(2011) (noting that a central concern with the system that
preceded the Sentencing Guidelines was that it produced
significant sentencing disparities among similarly situated
defendants); Mistretta v. United States, 488 U.S.
361, 365, 368 (1989), and the categorical approach, see
Taylor v. United States, 495 U.S. 575, 590, 600-01
(1990). The interest in avoiding such a discrepancy counsels
in favor of recalling the mandate at least as strongly as the
"danger of incongruent results" did in
Tolliver. This factor weighs significantly in favor
of granting Montalvo's motion.
are no per se time limits or any precise procedural
hurdles that a movant must satisfy for a court to recall its
mandate. See Emeary, 794 F.3d at 529 (recalling
mandate more than five years after it issued);
Tolliver, 116 F.3d at 123-24 (recalling mandate even
though movant did not petition Supreme Court for a writ of
certiorari). Nonetheless, whether a movant has diligently
pursued his claim or otherwise demonstrated a "true
interest" in obtaining his desired relief can be a
relevant consideration. See Fraga-Araigo, 2001 WL
1692406, at *2 ("[T]he apparent lack of true interest on
the part of the movant would tend to show that injustice has
not been done.").
Government faults Montalvo for not filing a petition for
rehearing en banc or a petition for a writ of certiorari.
However, Montalvo objected to his sentence enhancement in the
district court, not just on appeal. That shows sufficient
diligence on his part. The court in Tolliver did not
rely on this ...