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-375-M

Before Clement, Ho, and Duncan, Circuit Judges.

Edith Brown Clement, Circuit Judge:

In 2007, a Dallas police officer arrested Eddie Lipscomb for illegal 

possession of a sawed-off shotgun. Lipscomb, who had nine prior felony 

convictions, pleaded guilty to illegal possession of a firearm by a felon in 

violation of 18 U.S.C. § 922(g). The district court then sentenced Lipscomb 

to 20 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. We 

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

United States Court of Appeals

Fifth Circuit

FILED

December 8, 2020

Lyle W. Cayce

Clerk
No. 18-11168

2

Years later, Lipscomb moved for release under 28 U.S.C. § 2255, 

based on the Supreme Court’s holding in Johnson v. United States, 576 U.S. 

591, 597 (2015), that the residual clause of the ACCA’s violent felony 

definition violated due process. Over the Government’s objection, the 

district court granted Lipscomb’s motion, concluding that he did not have 

the requisite three violent felonies to mark him as an armed career criminal. 

See 18 U.S.C. § 924(e)(1). The district court amended its judgment, reducing 

Lipscomb’s sentence to ten years. See id. § 924(a)(2). Lipscomb was 

immediately released on time served, and the Government appealed.

In the years since the Government filed its appeal, our cases have

crystalized in this area. It is settled: Lipscomb’s prior convictions designated 

him an armed career criminal at the time of his sentencing. Because the 

district court erred in granting Lipscomb’s section 2255 motion to the 

contrary, we vacate that order and direct the district court to reinstate its 

original judgment.

I.

Under the ACCA, “a person who violates section 922(g),” as 

Lipscomb did, “and has three previous convictions . . . for a violent felony . . . 

committed on occasions different from one another,” faces a statutory 

minimum 15-year prison sentence. 18 U.S.C. § 924(e)(1). In relevant part, 

the statute defines a “violent felony” as “any crime punishable by 

imprisonment for a term exceeding one year . . . that — (i) has as an element 

the use, attempted use, or threatened use of physical force against the person 

of another; or (ii) is burglary,” or another enumerated offense. Id.

§ 924(e)(2)(B).

Among Lipscomb’s nine prior felonies at the time of his 2007 arrest 

were two convictions for burglary—in 1993 and 1994—and four for 

robbery—one in 1994 and three in 2004. The Government does not argue 
No. 18-11168

3

that the three 2004 robbery convictions were “committed on occasions 

different from one another,” and, since it does not change our analysis, we 

will treat them as one. See id. § 924(e)(1).

In granting Lipscomb’s section 2255 motion, the district court 

concluded that the robbery convictions did not qualify as violent offenses 

because they did not meet the elements requirement of § 924(e)(2)(B)(i).1

Our recent cases demonstrate that was incorrect. In United States v. Burris, 

we held that “robbery under Texas Penal Code § 29.02(a) requires the ‘use, 

attempted use, or threatened use of physical force.’” 920 F.3d 942, 945 (5th 

Cir. 2019); see 18 U.S.C. § 924(e)(2)(B)(i). Likewise, we held in United States 

v. Herrold, that “burglary convictions . . . under [Texas Penal Code] Section 

30.02(a)(1) [are] generic burglary” as that term is used in 18 U.S.C. 

§ 924(e)(2)(B)(ii). 941 F.3d 173, 182 (5th Cir. 2019) (en banc), cert. denied, ---

S. Ct. ---, 2020 WL 5882400 (mem.) (Oct. 5, 2020). At the time of his 

sentencing, Lipscomb had the three previous violent felony convictions to 

bring him under the ACCA’s ambit. It is clear that the district court’s order 

granting Lipscomb’s section 2255 motion was in error.

2 Nor does Lipscomb 

dispute this.3

II.

Lipscomb does, however, dispute what this court should do about it. 

We address, and ultimately reject, each of Lipscomb’s three proposals.

1 We review this decision de novo. United States v. Fuller, 453 F.3d 274, 278 (5th 

Cir. 2006).

2 See United States v. Matthews, 799 F. App’x 300 (5th Cir. 2020) (summarily 

affirming findings that Texas robbery and Texas burglary are categorically violent felonies 

for purposes of ACCA).

3 Lipscomb preserves for further review his argument that Burris and Herrold were 

wrongly decided.
No. 18-11168

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First, Lipscomb argues that the Government is estopped from 

appealing the district court’s order because, during the pendency of this 

appeal, the Government “twice secured Mr. Lipscomb’s reincarceration on 

allegations that he had violated his conditions of supervised release.” If this 

sounds dubious, it is.

“Estoppel against the government is problematical at best.” United 

States v. Perez-Torres, 15 F.3d 403, 407 (5th Cir. 1994) (citing Off. of Pers. 

Mgmt. v. Richmond, 496 U.S. 414 (1990)). “[I]f estoppel were to be available 

against the government at all it would ‘at least’ require demonstrating all the 

traditional equitable prerequisites.” Id. (quoting Heckler v. Cmty. Health 

Servs. of Crawford, 467 U.S. 51, 61 (1984)) (emphasis added). But, as an 

equitable doctrine, estoppel requires that “he who comes into equity must 

come with clean hands.” Id. (quotation omitted). If not, “the doors of equity 

are closed to one tainted with inequitableness or bad faith relative to the 

matter in which he seeks relief, however improper may have been the 

behavior of the other party.” Id. (quotation omitted). More than that, 

estoppel “assumes even wider and more significant proportions where the 

matter in issue concerns the public interest, for in such an instance the denial 

of equitable relief averts an injury to the public.” Id. (quotation omitted).

So, in Perez-Torres, we declined to estop the defendant’s prosecution 

for illegally reentering the United States after deportation, because “he [was] 

tainted with extreme bad faith, for he knew such conduct was a felony and 

nevertheless willfully and purposefully engaged in it.” Id. Estoppel is equally 

inapposite here. Lipscomb argues that the Government cannot pursue this 

appeal because it took remedial action to secure his incarceration after he 

violated his supervisory release conditions. But, critically, the Government 

only took its actions in response to Lipscomb’s violations. His hands are far 

from clean.
No. 18-11168

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Lipscomb offers no persuasive authority to the contrary. All his cited 

cases are non-binding, out-of-circuit decisions, and none involve the 

Government or a criminal prosecution. See Wohl v. Keene, 476 F.2d 171, 177 

(4th Cir. 1973); In re Greenpoint Metallic Bed Co., 113 F.2d 881, 884 (2d Cir. 

1940); Smith v. Morris, 69 F.2d 3, 4–5 (3d Cir. 1934); Albright v. Oyster, 60 F. 

644 (8th Cir. 1894). We are unpersuaded.

Second, Lipscomb argues that “basic fairness” compels a stay until the 

Supreme Court considers a case that will determine whether Burris was 

decided correctly. See Borden v. United States, 140 S. Ct. 1262 (Mar. 2, 2020) 

(No. 19-5410) (granting petition for certiorari). Lipscomb notes that the court 

previously granted the Government’s requested stays to allow for resolution 

of United States v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), 

Herrold, 941 F.3d at 173, and Walker v. United States, 140 S. Ct. 519 (Nov. 15, 

2019) (No. 19-373) (granting petition for certiorari), abrogated by 140 S. Ct. 

953 (Jan. 27, 2020) (dismissing petition because of petitioner’s death). Now 

that the case law supports the Government, Lipscomb asks for the same 

opportunity.

In arguing for fairness, Lipscomb acknowledges that “we remain 

bound to follow our precedent even when the Supreme Court grants 

certiorari on an issue.” United States v. Lopez-Velasquez, 526 F.3d 804, 808 

n.1 (5th Cir. 2008). Whatever his argument’s intuitive appeal, we 

nevertheless “remain bound.” We granted the Government’s motions to 

stay its appeal (some of them, as Lipscomb acknowledges, unopposed) in the 

interest of resolving unsettled questions that directly affected this appeal. 

Those questions are now settled on the firmest foundations of our court. See

Burris, 920 F.3d at 945; Herrold, 941 F.3d at 182 (en banc), cert. denied, ---
No. 18-11168

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S. Ct. ---, 2020 WL 5882400; see also Reyes-Contreras, 910 F.3d at 169 (en 

banc). We will not delay any longer.4

Third, if we reverse, Lipscomb asks us to “remand rather than render 

judgment for the Government,” so the district court can decide how to 

resolve this sentence and the two revocation judgments against Lipscomb. Of 

course, the district court must preside over the revocation judgments in the 

first instance. But as to the erroneous section 2255 order, Lipscomb offers no 

support for his assertion that the district court is better suited to correct its 

judgment.

* * *

The district court’s order granting Lipscomb’s motion for release

under 28 U.S.C. § 2255 is hereby VACATED and REMANDED for the 

district court to reinstate its original judgment.

4 In addition to Lipscomb’s violations of supervised release, the Government cites 

five state criminal cases against Lipscomb since his release. These alleged offenses also 

counsel against further delay. For example, in August 2020, Lipscomb was arrested for a 

robbery in which he allegedly choked and threatened to kill his ex-girlfriend. Based on that 

incident, we granted the government’s motion to expedite Lipscomb’s appeal.