United States Court of Appeals

for the Fifth Circuit

No. 18-11168

United States of America, 

Plaintiff—Appellant,

versus

Eddie Lamont Lipscomb, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-357-M

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before Clement, Ho, and Duncan, Circuit Judges.

Per Curiam:*

This case returns to us because the Supreme Court granted Mr. 

Lipscomb’s petition for certiorari, vacated our earlier decision, and 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 3, 2022

Lyle W. Cayce

Clerk

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remanded the case for further consideration in view of its recent decision in 

Borden v. United States, 141 S. Ct. 1817 (2021). 

In 2007, Mr. Lipscomb pleaded guilty to a one-count federal 

indictment charging him with illegal possession of a firearm by a felon in 

violation of 18 U.S.C. § 922(g). The district court sentenced him to twenty 

years in prison—a sentence that fell between the 15-year statutory minimum 

required by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), 

and the 24-year bottom of the sentencing guidelines. A panel of this court 

affirmed in United States v. Lipscomb, 619 F.3d 474, 476 (5th Cir. 2010).

Mr. Lipscomb later requested release under 28 U.S.C. § 2255 in view 

of Johnson v. United States, in which the Supreme Court struck down the 

residual clause of the ACCA’s “violent felony” definition as 

unconstitutionally vague and violative of due process. 576 U.S. 591, 597 

(2015); see 18 U.S.C. § 924(e)(2)(B)(ii). The district court granted Mr. 

Lipscomb’s motion for release, concluding that he did not have the requisite

three violent felonies to qualify as an armed career criminal. 18 U.S.C. 

§ 924(e)(1). We initially reversed, vacating the district court’s order granting 

Mr. Lipscomb’s motion for release and remanding to the district court with 

instructions to reinstate its original judgment.

The basis for our holding was our determination that Mr. Lipscomb 

had at least three prior convictions for violent felonies—two burglary 

convictions, and two robbery convictions—and thus qualified for a sentence 

enhancement under the ACCA.

1

 At the time, our precedent compelled that 

1 As we noted in our previous order, Mr. Lipscomb’s criminal record actually 

reflects four robbery convictions—one in 1994 and three in 2004. However, because the 

Government did not contend that the three 2004 robbery convictions were “committed on 

occasions different from one another” and because it did not change our analysis, we 

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result. See, e.g., United States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019) 

(holding that robbery under Texas Penal Code § 29.02(a), either by injury or 

threat, was a violent felony within the meaning of the ACCA); see also 18 

U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony” to include “burglary”).

But in July of 2021, the Supreme Court decided Borden, in which it 

held that offenses criminalizing a mens rea of “recklessness” do not satisfy 

the ACCA’s elements clause and thus do not qualify as predicate “violent 

felonies” for purposes of the ACCA. 141 S. Ct. at 1825. So, the issue before 

us on remand is how the Borden decision affects Mr. Lipscomb’s sentence. 

In light of our recent decision in United States v. Garrett, the answer is: not at 

all. United States v. Garrett, -- F. 4th --, 2022 WL 214472, at *1 (5th Cir. 

2022).

Section 29.02(a) of the Texas Penal Code defines the offense of simple 

robbery as follows:

(a) A person commits an offense if, in the course of committing 

theft as defined in Chapter 31 and with intent to obtain or 

maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes 

bodily injury to another; or

(2) intentionally or knowingly threatens or places 

another in fear of imminent bodily injury or 

death.

In Garrett, we held that § 29.02(a) is divisible and creates two distinct

crimes: robbery-by-injury, under § 29.02(a)(1); and robbery-by-threat, under 

§ 29.02(a)(2). Id. at *3. This means that we apply the modified categorical 

approach to determine which offense is the crime of conviction. Id. at *4.

treated the three 2004 robbery convictions as one. See 18 U.S.C. § 924(e)(1). We continue 

to do so here.

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Under the modified categorical approach, to determine the crime of 

conviction, we may refer to “a limited class of documents, such as a ‘charging 

document, written plea agreement, transcript of plea colloquy, and any 

explicit factual finding by the trial judge to which the defendant assented.’” 

United States v. Enrique-Ascencio, 857 F.3d 668, 676 (5th Cir. 2017) (quoting 

Shepard v. United States, 544 U.S. 13, 16 (2005)). “Proper documents are 

limited to ‘conclusive records made or used in adjudicating guilt.’” Id.

(quoting Shepard, 544 U.S. at 21).

Here, Mr. Lipscomb’s conviction documents reflect that his 1994 

robbery conviction was for “ROBBERY/TBI,” which corresponds to 

“Threat of Bodily Injury.” That is a § 29.02(a)(2) conviction. Because a 

defendant cannot violate § 29.02(a)(2) recklessly—rather, only intentionally 

or knowingly—a conviction under § 29.02(a)(2) qualifies as a predicate 

violent felony for purposes of an ACCA sentence enhancement.

Therefore, Mr. Lipscomb has three predicate violent felony 

convictions: two burglary convictions, and at least one qualifying robbery 

conviction. As such, he is an armed career criminal and eligible for a sentence 

enhancement under the ACCA.

* * *

Accordingly, we AFFIRM our prior judgment. The district court’s 

order granting Mr. Lipscomb’s motion for release under 28 U.S.C. § 2255 is 

once again VACATED and REMANDED for the district court to 

reinstate its original judgment.

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