United States Court of Appeals

for the Fifth Circuit ____________

No. 23-50040

____________

United States of America, 

Plaintiff—Appellee, 

versus

Richard Schorovsky, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 7:22-CR-173-1 

______________________________

Before Elrod, Willett, and Duncan, Circuit Judges.

Don R. Willett, Circuit Judge: 

In 2022, Richard Schorovsky pleaded guilty to being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He had 

previously been convicted in Texas of felony robbery, aggravated robbery, 

and burglary of a habitation. The district court found that these prior 

convictions were “violent felon[ies] . . . committed on occasions different 

from one another” and thus qualified Schorovsky for sentence enhancement 

United States Court of Appeals

Fifth Circuit

FILED

March 15, 2024

Lyle W. Cayce

Clerk

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No. 23-50040

2

under the Armed Career Criminal Act (ACCA).1 The district court 

sentenced Schorovsky to the ACCA’s mandatory minimum of 15 years of

imprisonment and five years of supervised release.2 Schorovsky appealed, 

raising four challenges to his enhanced sentence and one challenge to his 

guilty plea. We AFFIRM.

I

Schorovsky first argues that no Shepard-approved documents proved 

that his robbery and aggravated robbery offenses were “committed on 

occasions different from one another,” as required by § 924(e). To 

determine whether offenses were “committed on occasions different from 

one another,” a court may examine only Shepard-approved material: “the 

statutory definition, charging document, written plea agreement, transcript 

of plea colloquy, and any explicit factual finding by the trial judge to which 

the defendant assented.”3 “Offenses committed close in time, in an 

uninterrupted course of conduct, will often count as part of one occasion; not 

so for offenses separated by substantial gaps in time or significant intervening 

events.”4 Offenses committed “a day or more apart” are rightly treated “as 

occurring on separate occasions.”5

Schorovsky did not argue below that the district court relied on nonShepard-approved documents to determine that his offenses were committed 

on different occasions—rather, he objected only that the ACCA should not 

apply because his prior convictions constituted a single criminal episode. 

_____________________

1 See 18 U.S.C. § 924(e)(1).

2 Id.

3 Shepard v. United States, 544 U.S. 13, 16 (2005).

4 Wooden v. United States, 595 U.S. 360, 369 (2022).

5 Id. at 370.

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Accordingly, we review the former argument for plain error and the latter de 

novo.6 Under plain-error review, Schorovsky must establish (1) an error 

(2) that is “clear or obvious” and that (3) affected his “substantial rights.”7

If he makes this showing, then we have discretion to remedy the error—

discretion we should exercise only if the error “seriously affect[s] the 

fairness, integrity or public reputation of judicial proceedings.”8

Even if the district court erred in relying on the presentence 

investigation report (PSR),9 the error did not affect Schorovsky’s substantial 

rights because “Shepard-approved documents are conclusive as to whether 

the predicate ACCA offenses occurred on separate occasions.”10 The 

Government provided the district court with Shepard-approved documents: 

the indictments and judgments for Schorovsky’s prior convictions. 

Schorovsky did not object. 

Schorovsky now argues that (1) his prior indictments cannot be used 

to prove the dates of his prior offense conduct because Texas law does not 

require an indictment to allege a specific date, and (2) the dates listed in the 

judgments are not factual findings for purposes of the ACCA.11 However, 

_____________________

6 See United States v. Alkheqani, 78 F.4th 707, 723 (5th Cir. 2023).

7 See Puckett v. United States, 556 U.S. 129, 135 (2009).

8 Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736

(1993)).

9 See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (“[A] district 

court is not permitted to rely on a PSR’s characterization of a defendant’s prior offense for 

enhancement purposes.”)

10 See Alkheqani, 78 F.4th at 726 (quoting United States v. Wright, No. 21-60877, 

2022 WL 3369131, at *1 (5th Cir. Aug. 16, 2022) (per curiam)).

11 Schorovsky cites Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997), and 

United States v. Solano-Hernandez, 761 F. App’x 276 (5th Cir. 2019). See Sledge, 953 S.W.2d 

at 255 (stating that “the State need not allege a specific date in an indictment”); SolanoHernandez, 761 F. App’x at 281–82 (holding that the district court clearly and obviously 

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our precedent makes clear that judgments and indictments are Shepardapproved documents that can be used to determine that Texas offenses

occurred on different dates and thus on separate occasions.

12 Even if the 

cases Schorovsky cites cast doubt on the use of indictments and judgments

under some circumstances, as Schorovsky argues, it is not “clear or obvious” 

that the district court erred in relying on them here. 

Because Schorovsky’s prior indictments and judgments indicate that 

the offenses were committed two days apart,13 the district court properly 

treated them as occurring on different occasions.14 Accordingly, the district 

court did not plainly err under Shepard and properly treated Schorovsky’s 

prior convictions as ACCA predicates.

II

Schorovsky next argues that the district court violated Apprendi v. New 

Jersey by finding that his prior convictions occurred on different occasions 

_____________________

erred in relying on the “Statement of Reasons” in the judgment “to narrow the statute of 

conviction”); see also United States v. Fuller, 453 F.3d 274, 279–80 (5th Cir. 2006) (holding 

that the indictments could not establish that the burglaries occurred on different occasions 

because the indictments need not identify whether the defendant aided and abetted or 

committed the robbery himself), abrogated on other grounds by Wooden, 595 U.S. 360.

12 See, e.g., Alkheqani, 78 F.4th at 727 (stating approvingly that the indictments 

listed the dates of the offenses); United States v. Bookman, 263 F. App’x 398, 399–400 (5th 

Cir. 2008) (per curiam) (stating that the indictments and judgments “show that the 

burglaries were committed on different dates”); see also United States v. White, 465 F.3d 

250, 254 (5th Cir. 2006) (noting that the indictments and judgments were among the 

“ample bases [in that case] to determine that White’s drug offenses were separate”); 

United States v. Martin, 447 F. App’x 546, 548 (5th Cir. 2011) (per curiam) (same).

13 His aggravated robbery occurred on January 26, 2012, and his robbery occurred 

on January 28, 2012.

14 See Wooden, 595 U.S. at 370.

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for the ACCA enhancement.

15 He argues that the jury should have found

that fact beyond a reasonable doubt. Because Schorovsky did not raise an 

Apprendi objection below, we review for plain error.16

Supreme Court and circuit precedent squarely foreclose Schorovsky’s 

argument. In Apprendi, the Supreme Court said, “Other than the fact of a prior 

conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.”17 Consistent with Apprendi, we have held that 

“‘because [Section] 924(e)(1) does not create a separate offense but is merely 

a sentence enhancement provision,’ neither the statute nor the Constitution 

requires a jury finding on the existence of the three previous felony 

convictions required for the enhancement.”18 The Supreme Court’s 2002 

decision in Wooden v. United States does not demand a contrary result.19

Accordingly, the district court did not err under Apprendi by finding that 

Schorovsky’s prior convictions were committed on different occasions.

III

Schorovsky next argues that his burglary-of-a-habitation conviction

cannot be an ACCA predicate because the relevant statute, Texas Penal 

Code § 30.02(a), covers “buildings” that are not used for habitation and is 

_____________________

15 See 530 U.S. 466, 490 (2000).

16 See United States v. Davis, 487 F.3d 282, 287–88 (5th Cir. 2007).

17 530 U.S. at 490 (emphasis added).

18 See United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002) (alteration in 

original) (quoting United States v. Affleck, 861 F.2d 97, 98–99 (5th Cir. 1988)); see also

White, 465 F.3d at 254 (rejecting Apprendi argument); Davis, 487 F.3d at 287–88 (same);

United States v. Hageon, 418 F. App’x 295, 299 (5th Cir. 2011) (same).

19 See United States v. Valencia, 66 F.4th 1032, 1032–33 (5th Cir. 2023) (per curiam) 

(discussing Wooden, 595 U.S. 360).

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thus broader than “generic” burglary in the ACCA. Because Schorovsky

objected below, our review is de novo.20

Binding circuit precedent forecloses this argument. Burglary is an 

enumerated “violent felony” under the ACCA.

21 We previously held en 

banc that Penal Code § 30.02(a) fits within the generic definition of burglary 

and thus qualifies as an ACCA violent felony.22 Since that decision in 

Herrold II, we have reiterated that “§ 30.02(a) constitutes generic burglary 

in its entirety, and thus any § 30.02(a) conviction qualifies as a predicate 

under the ACCA.”23 Accordingly, the district court properly classified 

Schorovsky’s burglary-of-a-habitation conviction as an ACCA predicate. 

IV

Schorovsky also argues that the district court violated his due process 

right to notice by finding that his burglary conviction was an ACCA violent 

felony. He explains that “burglary of a dwelling” is no longer considered a 

violent crime under the Sentencing Guidelines’ career offender 

enhancement and that this disparity with the ACCA makes him wonder 

“whether or not burglary should now be considered a violent crime.” 

_____________________

20 See Fuller, 453 F.3d at 278; Alkheqani, 78 F.4th at 723.

21 18 U.S.C. § 924(e)(2)(B)(ii).

22 United States v. Herrold (Herrold II), 941 F.3d 173, 182 (5th Cir. 2019) (en banc).

23 United States v. Clark, 49 F.4th 889, 892 (5th Cir. 2022) (per curiam) (emphasis 

added); see also United States v. Wallace, 964 F.3d 386, 389 (5th Cir. 2020) (“[W]e disagree 

with Wallace’s assertion that our holding in Herrold II is confined to Herrold’s failure to 

provide supportive Texas cases.”); United States v. Walton, 804 F. App’x 281, 282 (5th 

Cir. 2020) (per curiam) (“[C]hallenges to the Texas burglary statute as being nongeneric 

for purposes of the ACCA enhancement are foreclosed.”).

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Because Schorovsky raises this argument for the first time on appeal, we 

review for plain error.24

This argument likewise fails. As the Government notes, the ACCA

“unambiguously gives the public notice that a prior burglary conviction may 

be used for the purpose [of] enhancing a criminal actor’s penalty range to 

ACCA’s 15-year mandatory minimum sentence, even though the § 4B1.2 

definition of a crime of violence excludes that offense.” In Herrold II, we held 

en banc that burglary of a habitation categorically fits within the definition of 

burglary under the ACCA.

25 Moreover, the Guidelines themselves “do not 

implicate” Schorovsky’s due process right to notice.26 “All of the notice 

required is provided by the applicable statutory range, which establishes the 

permissible bounds of the court’s sentencing discretion.”27 Schorovsky 

points to no case law—because there is none—to show that the Guidelines’

definition of “crime of violence” overrides the ACCA’s definition of 

“violent felony” or that the ACCA is unconstitutionally vague. “We 

ordinarily do not find plain error when we ‘have not previously addressed’

an issue.”28 Accordingly, the district court did not, plainly or otherwise, 

violate Schorovsky’s due process rights by characterizing burglary as a 

_____________________

24 See Puckett, 556 U.S. at 135.

25 See Herrold II, 941 F.3d at 176–77.

26 See Beckles v. United States, 580 U.S. 256, 265 (2017); see also United States v. 

Osorio, 734 F. App’x 922, 924 (5th Cir. 2018) (per curiam) (same).

27 Beckles, 580 U.S. at 266.

28 See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009) (quoting United 

States v. Lomas, 304 F. App’x 300, 301 (5th Cir. 2008) (per curiam)).

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violent felony and sentencing him to the ACCA’s 15-year mandatory 

minimum. 

V

Finally, Schorovsky argues that his guilty plea was not knowing and 

voluntary because the magistrate judge advised him during the plea colloquy 

that his maximum sentence was 15 years (when the ACCA’s mandatory

maximum islife in prison), that his minimum sentence was 0 years (when the 

ACCA’s mandatory minimum is 15 years), and that the maximum term of 

supervised release was 3 years (when it is 5 years). 

Schorovsky says that he preserved this Rule 11 claim by making it 

“abundantly clear [before the district court] that he felt like he’d been 

blindsided by being characterized as an armed career criminal.”29 However, 

his objection was not “sufficiently specific to alert the district court to the 

nature of the alleged [Rule 11] error and to provide an opportunity for 

correction.”30 Even liberally construing his objection, he did not object to his 

plea or to the district court’s alleged miscommunication about the proper 

sentencing range—he objected only to “getting enhanced on something 

that’s not even nowhere in the sentencing guideline or the ACC Act.” 

Accordingly, we review for plain error.31

The district court undeniably erred when it advised Schorovsky of the

incorrect minimum and maximum terms of imprisonment that could result 

from his plea.

32 In United States v. Rodriquez, the Supreme Court observed, 

_____________________

29 See Fed R. Crim. P. 11(c)(1)(H)–(I).

30 See United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).

31 See United States v. Vonn, 535 U.S. 55, 58–59 (2002).

32 See Fed R. Crim. P. 11(b)(1)(H)–(I).

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“If the judge told the defendant that the maximum possible sentence was 10 

years and then imposed a sentence of 15 years based on ACCA, the 

defendant would have been sorely misled and would have a ground for 

moving to withdraw the plea.”33 Accordingly, “we have no difficulty 

concluding that the error was ‘clear or obvious.’”34

Even so, the district court’s error did not affect Schorovsky’s 

substantial rights and thus fails to satisfy the third prong of plain-error 

review.35 Schorovsky fails to meet his burden of showing “a reasonable 

probability that, but for the error, he would not have entered the plea.”36

“Though the district court failed to inform [Schorovsky] of the punishment 

range for the charged crime, the presentence report specifically detailed the 

punishment range” applicable in light of the enhancement.37 At sentencing, 

Schorovsky confirmed that he had reviewed the PSR. Despite learning of the 

ACCA statutory sentencing range in his PSR, Schorovsky did not object or 

seek to withdraw his plea.38 Under these circumstances, Schorovsky was 

“aware of and understood” that his ACCA enhancement carried a statutory 

_____________________

33 553 U.S. 377, 384 (2008).

34 See United States v. Wallace, 551 F. App’x 193, 196 (5th Cir. 2014) (per curiam)

(quoting Puckett, 556 U.S. at 135).

35 See id. (concluding that the Rule 11 error was “clear or obvious” under Rodriquez

before proceeding to the “substantial rights” plain-error prong).

36 See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

37 See United States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999)(per curiam) 

(discussing similar facts and holding that the Rule 11 error did not affect substantial rights).

38 See United States v. Herndon, 7 F.3d 55, 57 (5th Cir. 1993) (per curiam) 

(considering whether the PSR and sentencing hearing provided “any basis upon which 

[the court] could reasonably conclude that the defendant was ‘aware of and understood’ 

that there was a [certain] minimum statutory sentence”).

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minimum sentence of 15 years, a statutory maximum of life, and a maximum 

term of supervised release of five years.

39

And, critically, Schorovsky does not allege, let alone prove, that he 

would not have pleaded guilty had he been informed during his plea colloquy 

of the proper statutory sentencing range.

40 He merely “requests that he be 

returned to the pre-plea status so he can decide whether or not to take his 

case to trial.”41 Thus, the district court did not plainly err.

* * *

Accordingly, we AFFIRM Schorovsky’s guilty plea and sentence.

_____________________

39 See id.

40 See Dominguez Benitez, 542 U.S. at 83.

41 See Vasquez-Bernal, 197 F.3d at 171.

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