IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50383

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CHARLES CAMPBELL, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:16-CV-623

Before DENNIS,* CLEMENT, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Before the court is a § 2255 motion filed by Charles Campbell. He argues 

that his sentence is unconstitutional because neither his two previous burglary

convictions nor his two previous robbery convictions are violent felonies under 

the Armed Career Criminal Act (ACCA). We reject both arguments.

 

* Concurring in the judgment only.

* Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited circumstances 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 CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2019

Lyle W. Cayce

Clerk

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I.

In 2007, a jury convicted Campbell for being a felon in possession of a 

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The sentencing 

court imposed an enhancement under the ACCA based on four prior violent 

felony convictions. It found that Campbell’s two Texas burglary convictions fell 

within the ACCA’s enumerated-offenses clause and that his two Texas robbery 

convictions fell within the ACCA’s residual clause. Campbell was sentenced to 

210 months of imprisonment followed by five years of supervised release.1

Campbell filed three unsuccessful § 2255 motions in 2010. The first was 

rejected as untimely, while the latter two were rejected as improper successive 

petitions. Then, in 2015, the Supreme Court held that the residual clause of 

the ACCA was unconstitutionally vague in violation of the Fifth Amendment. 

Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The following year, the 

Court concluded that its holding in Johnson announced a new rule of 

substantive law that could be applied retroactively to cases on collateral 

review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Campbell then 

received permission to file a fourth § 2255 petition, arguing “that in light of 

Johnson, his prior Texas convictions for robbery and robbery with assault no 

longer qualify as violent felonies under the ACCA.”

That is one of the issues to resolve here, but there is also a second 

question. In 2018, while Campbell’s § 2255 motion based on the robbery 

convictions was pending, this court decided in United States v. Herrold that no 

Texas burglary conviction can qualify as a violent felony under the ACCA’s 

 

1 Although Campbell was released from prison on July 19, 2019, his petition 

continues to present a live case or controversy because, if Campbell does not qualify 

as a career offender under the ACCA, the maximum term of supervised release which 

could have been imposed for this Class C felony conviction would have been three 

years. 18 U.S.C. § 3583(b)(2).

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enumerated-offenses clause. 883 F.3d 517, 537 (5th Cir. 2018) (en banc). The 

government conceded that Herrold prevented Campbell’s burglary convictions 

from qualifying as violent felonies under the enumerated-offenses clause.2

After Herrold, Campbell moved this court to expand the certificate of 

appealability granted by the district court to consider whether his burglary 

convictions continue to qualify as ACCA predicate offenses. This court granted 

the motion, but specifically instructed the parties to address whether this court 

has jurisdiction to entertain the burglary argument in light of the rules 

governing successive habeas applications.

After reviewing those arguments under recent circuit precedent, we 

conclude that we lack jurisdiction to consider Campbell’s collateral attack on

the use of his burglary convictions to enhance his sentence. We address that 

part of the petition before addressing Campbell’s robbery convictions.

II.

This court reviews a legal challenge to an ACCA-enhanced sentence de 

novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). The defendant 

bears the burden to prove he is entitled to relief when collaterally attacking 

the judgment. Coon v. United States, 441 F.2d 279, 280 (5th Cir. 1971).

III.

“If the district court did not have jurisdiction to reach the merits, 

naturally, we cannot reach the merits on appeal.” United States v. Wiese, 896 

F.3d 720, 723 (5th Cir. 2018), as revised (Aug. 14, 2018). “A second or successive 

habeas application must meet strict procedural requirements before a district 

 

2 The Supreme Court subsequently granted certiorari in Herrold, vacated the 

judgment, and remanded for further proceedings in light of its decision in Quarles v. 

United States, 139 S. Ct. 1872 (2019). United States v. Herrold, No. 17-1445, 2019 WL 

2493911, at *1 (U.S. June 17, 2019). This court is currently reconsidering Herrold en 

banc.

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court can properly reach the merits of the application.” Id. Among other things, 

the prisoner must prove that his claim is based on a “new rule of constitutional 

law, made retroactive to cases on collateral review by the Supreme Court.” 28 

U.S.C. § 2255(h)(2).

Plainly, Herrold cannot supply this basis, since our Herrold decision has 

been vacated by the Supreme Court and no longer exists. But Campbell also 

attempts to base his successive habeas motion on Johnson. Campbell can only 

rely on Johnson, however, if he can show “that it was more likely than not that 

he was sentenced under the residual clause.” United States v. Clay, 921 F.3d 

550, 559 (5th Cir. 2019), as revised (Apr. 25, 2019). Campbell cannot make that 

showing.

Both the government and Campbell agree that the sentencing court 

found Campbell’s burglary convictions were violent felonies under the 

enumerated-offenses clause of the ACCA, not under the residual clause. But 

Campbell’s burglary convictions would also have counted as violent felonies 

under the residual clause. So Campbell argues that, before he would have been

entitled to relief from the ACCA enhancement, he needed to show that the 

convictions did not qualify under either the enumerated-offenses clause or the 

residual clause. In Campbell’s view, his § 2255 motion relies as much on 

Johnson as it does on Herrold.

Our circuit has rejected such an attenuated reading of the statute. That 

a defendant’s prior conviction would have also been considered a violent felony 

under the residual clause is insufficient by itself to show that the sentencing 

court “more likely than not” relied on the residual clause. See Clay, 921 F.3d 

at 558. The statute requires more, after all, than “a theoretical possibility.”

Wiese, 896 F.3d at 726. To determine potential reliance on the residual clause, 

we look at the sentencing record “for direct evidence of a sentence,” and we look 

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at “the relevant background legal environment that existed at the time of the 

defendant’s sentencing” that may have informed the sentencing court’s 

decision. Id. at 725 (cleaned up).

This inquiry is sometimes complicated by the common pre-Johnson 

practice of sentencing courts not to specify which clause of the ACCA applied 

to which predicate violent felony. See, e.g., id. (“[T]he sentencing judge did not 

make any statement as to which clause was used for the sentencing 

enhancement. . . .”); Clay, 921 F.3d at 556 (“[T]here was no occasion for the 

sentencing court to clarify how the requisite ‘violent felonies’ were tabulated.”);

United States v. Winterroth, 759 F. App’x 299, 302 (5th Cir. 2019) (per curiam) 

(“[T]he district court said nothing at sentencing as to whether it considered 

Winterroth’s prior Texas burglary convictions to be ACCA predicates as the 

enumerated offense of burglary or to be violent felonies under § 924(e)’s 

residual clause.”).

But we may more easily conclude that the residual clause was not in play 

where, as in this case, the sentencing court explicitly relied on the enumeratedoffenses clause and the court’s conclusion that the felony convictions qualified 

as violent felonies under that clause was indisputably correct at the time it was 

made. Again, Campbell concedes that the sentencing court “stated that 

Campbell’s Texas burglary convictions . . . fell under the . . . enumeratedoffenses clause.” And, as if to make its reliance on that clause doubly obvious, 

the court cited five different Fifth Circuit opinions at sentencing, all of which 

compare the state burglary statute to the generic offense of burglary under the 

ACCA, as well as Taylor v. United States, 495 U.S. 575 (1990), the Supreme 

Court case that first espoused the categorical approach. Not one of these cases 

mentions the residual clause.

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Moreover, at the time of Campbell’s sentencing, it was clear that this 

court classified the Texas burglary offenses as generic “burglary” under the 

ACCA’s enumerated-offenses clause. See United States v. Silva, 957 F.2d 157, 

162 (5th Cir. 1992); United States v. Stone, 72 F. App’x 149, 150 (5th Cir. 2003) 

(per curiam). Looking to the sentencing record and the relevant background 

legal environment at the time of sentencing, Campbell has not proven that the 

sentencing court more likely than not relied on the residual clause. As such, 

we lack jurisdiction to consider his successive § 2255 motion with regard to the 

burglary convictions.

IV.

We turn now to Campbell’s robbery convictions. As explained above, the 

district court explicitly relied on the residual clause of the ACCA in concluding 

that the two robbery convictions qualify as violent felonies. Campbell has 

shown, then, that it is “more likely than not” that he was sentenced under the 

residual clause and that his successive § 2255 motion relies on Johnson. See 

Clay, 921 F.3d at 559. But that does not end the matter. It remains for us to 

decide whether the district court’s reliance on the residual clause was 

harmless. If the robbery convictions continue to justify the ACCA enhancement 

because they qualify as violent felonies under a different clause of the ACCA, 

then relief to Campbell must be denied.

A.

The ACCA defines a “violent felony,” in relevant part, as: 

[A]ny 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 

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(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.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion of § 

924(e)(2)(B)(ii) is the “residual clause,” which has been struck down as 

unconstitutional. And robbery is not listed as an enumerated offense in § 

924(e)(2)(B)(ii). So the only question is whether the version of the Texas 

robbery statute under which Campbell was twice convicted qualifies under the 

“elements clause.” § 924(e)(2)(B)(i). That is, does the Texas statute “ha[ve] as 

an element the use, attempted use, or threatened use of physical force against 

the person of another”. Id.

To determine whether Campbell’s past robbery convictions qualify under 

the elements clause, we apply the “categorical approach.” Descamps v. United 

States, 570 U.S. 254, 257 (2013).3 Under that approach, we “focus solely on 

whether the elements of the crime of conviction include the use of force,” paying 

no attention to the particular facts behind Campbell’s convictions. United 

States v. Burris, 920 F.3d 942, 947 (5th Cir. 2019) (cleaned up). “[I]f the least 

culpable conduct covered by [the statute at issue] requires the use, attempted 

use, or threatened use of physical force, [the statute] is a violent felony.” Id.

 

3 If the Texas robbery statute under which Campbell was convicted were

“divisible,” then we would instead apply what is termed the “modified categorical 

approach.” Descamps, 570 U.S. at 257. A divisible statute sets forth one or more 

elements of the offense in the alternative. Id. Notably, a statute is not divisible simply 

because it identifies different means of committing the same offense. Id. at 274. In 

determining whether a statute is divisible into multiple offenses with distinct 

elements or instead states differing ways of committing the same offense, a state 

court decision that “definitively answers the question” is dispositive. Mathis, 136 S. 

Ct. at 2256. Because the Texas Court of Criminal Appeals has already determined 

that Article 1408 “defines but one offense,” Barber v. State, 258 S.W.2d 87, 89 (Tex. 

Crim. App. 1953), we easily reach the threshold conclusion that the categorical 

approach applies. See Mathis, 136 S. Ct. at 2256.

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The Supreme Court has defined the required level of force to qualify as 

a violent felony under this definition as “force capable of causing physical pain 

or injury.” Curtis Johnson v. United States, 559 U.S. 133, 140 (2010). This level 

of force is something more than the common-law definition of force, which could 

be “satisfied by even the slightest offensive touching.” Id. at 139. The use of 

force necessary to commit robbery at common law is adequate, meaning that 

the ACCA “encompasses robbery offenses that require the criminal to overcome 

the victim’s resistance.” Stokeling v. United States, 139 S. Ct. 544, 550 (2019).

It makes no difference whether the force is applied directly or indirectly (for 

example, by poisoning). See United States v. Reyes-Contreras, 910 F.3d 169, 

182 (5th Cir. 2018) (en banc) (applying United States v. Castleman, 572 U.S. 

157, 162–68 (2014), and overruling Circuit precedent). “[R]obbery that must 

overpower a victim’s will—even a feeble or weak-willed victim—necessarily 

involves a physical confrontation and struggle.” Stokeling, 139 S. Ct. at 553.

And “[t]he altercation need not cause pain or injury or even be prolonged; it is 

the physical contest between the criminal and the victim that is itself capable 

of causing physical pain or injury.” Id. (quotation omitted).

In short, the degree of force required by the elements clause “entails

more force than the slightest offensive touching, but does not require any 

particular degree of likelihood or probability that the force used will cause pain 

or injury; only potentiality.” Burris, 920 F.3d at 955 (quotations omitted). The 

emphasis is on “capable.” Id. “Even minor uses of force—including hitting, 

slapping, shoving, grabbing, pinching, biting, and hair pulling—that lead to 

minor forms of injury, such as a cut, abrasion, or bruise, qualify as ‘physical 

force’ under” the ACCA. Id.

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B.

Campbell was twice convicted of robbery under Article 1408 of the 1925 

Texas Penal Code. At the time Campbell was convicted, the statute provided:

Robbery.— If any person by assault, or violence, or by 

putting in fear of life or bodily injury, shall fraudulently take from 

the person or possession of another any property with intent to 

appropriate the same to his own use[, he shall be guilty of robbery.]

Tex. Crim. Stat. art. 1408 (1925). “Assault,” defined in a separate section of the 

Code, includes “[t]he use of any unlawful violence upon the person of another 

with intent to injure him,” “whatever be the means or the degree of violence 

used.” Id. at art. 1138. Article 1140 notes that the “means” of violence upon the 

person includes any act, including “spitting in the face or otherwise,” so long 

as it is “capable of inflicting an injury.” And “injury” itself is broadly defined—

specifically, it “may be either bodily pain, constraint, [or] a sense of shame or 

other disagreeable emotion of the mind.” Id. at art. 1139.

Notwithstanding this potentially broad language, however, the case law 

makes clear that the level of force required by Article 1408 has been 

interpreted more strictly. Courts discussing robbery during the relevant time

emphasized the presence of some “violence or threat of violence to obtain 

property” as the main distinguishing factor between robbery and theft. Woods 

v. State, 220 S.W.2d 644, 646 (Tex. Crim. App. 1949); see also Jones v. State, 

467 S.W.2d 453, 454 (Tex. Crim. App. 1971); Cassidy v. State, 324 S.W.2d 857, 

858–59 (Tex. Crim. App. 1959); Harris v. State, 39 S.W.2d 888, 890 (Tex. Crim. 

App. 1931). Nevertheless, the amount of force used was “immaterial so long as 

it amount[ed] to some kind of assault, violence, or putting in fear” and was 

“sufficient to compel one to part with his property.” Davis v. State, 429 S.W.2d 

459, 460 (Tex. Crim. App. 1968) (quotation omitted); see also Alsobrook v. State, 

115 S.W.2d 668, 671 (Tex. Crim. App. 1938); Rylee v. State, 236 S.W. 744, 745

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(Tex. Crim. App. 1922).4 The amount of force was alternatively articulated as 

“sufficient to overcome resistance of the assaulted party.” Gonzales v. State, 

126 S.W.2d 492, 493 (Tex. Crim. App. 1939). Texas courts contrasted these 

circumstances with sudden purse-snatchings or pick-pocketing, where the 

victim has no opportunity to resist and/or lacks awareness of what is 

transpiring. See Harris, 39 S.W.2d at 889–90; Johnson v. State, 32 S.W. 537, 

538 (Tex. Crim. App. 1895).

At its most broad, Texas courts convicted a defendant of robbery under 

Article 1408 when the “assaultive” physical conduct of the defendant involved 

minimal force used on a weakened or cooperative victim. For example, the 

Texas Court of Criminal Appeals found that a robbery conviction was 

warranted when a victim was commanded to get out of his car by a stranger he 

had agreed to take home, was held by two or three others who had been 

following behind, and then had money taken from him without any resistance 

because the victim believed it would be futile. Burlund v. State, 90 S.W.2d 260, 

261 (Tex. Crim. App. 1935); see also Williams, 102 S.W. 1134, 1135 (Tex. Crim. 

App. 1907) (robbery conviction appropriate where perpetrator restrained a 

vomiting victim and stole his money by forcibly reaching into his pockets over 

the victim’s resistance).

In addition, Texas courts permitted robbery charges based on a threat 

when it created fear in the victim that was “likely to induce a person to part 

with his property against his will.” Cranford v. State, 377 S.W.2d 957, 958 (Tex. 

Crim. App. 1964). That standard was met when the victim reasonably believed

he would be injured if he did not comply—even where there was no express 

threat and no weapon was present. Horn v. State, 230 S.W. 693, 694 (Tex. Crim. 

 

4 Prior iterations of the Texas Penal Code were worded identically to the 1925 

Code. See Tex. Crim. Stat. art. 1327 (1911); Tex. Crim. Stat. art. 856 (1895).

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App. 1921); see also Welch v. State, 880 S.W.2d 225, 226–27 (Tex. Crim. App. 

1994) (discussing the older statute); and see Peebles v. State, 134 S.W.2d 298, 

299 (Tex. Crim. App. 1939) (no robbery where threat could not reasonably have 

put the victim in fear).

C.

The level of force required by Article 1408 satisfies generic robbery. To 

summarize, the “use of force” involved under Article 1408, when physical, 

entailed the use of force with sufficient power to constrain the victim and 

forcibly remove an item against the victim’s will or in an attempt to maintain 

possession of the item. When based on a threat of force, the threat must have 

been of sufficient seriousness to put the victim in reasonable fear or belief that 

he would be injured unless he gave up possession of the item. In other words, 

taking another’s property by mere unwanted contact—e.g., purse-snatchings 

or pickpocketing—would not do. Jones, 467 S.W.2d at 454 (“The mere 

snatching of money from another’s hand is not robbery, but is theft from the 

person.”); see also Crawford v. State, 509 S.W.2d 582, 584 (Tex. Crim. App. 

1974); Alsobrook, 115 S.W.2d at 671 (“The actual or threatened violence to the 

person antecedent to the robbery is a distinguishing element between robbery 

and theft.”).

In Burris, we held that the modern version of Texas robbery requires the 

use, attempted use, or threatened use of physical force. 920 F.3d at 948. There 

are two ways of violating the modern statute: (1) robbery-by-threat, which 

requires the defendant, in the course of committing a theft, to intentionally or 

knowingly threaten or place another in fear of bodily injury or death; and (2) 

robbery-by-injury, which requires the defendant, in the course of committing a 

theft, to intentionally, knowingly, or recklessly cause bodily injury to another.

Tex. Penal Code § 29.02(a). For robbery-by-threat, it is only necessary that the 

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defendant “is aware that his conduct is reasonably certain to place someone in 

fear, and that someone actually is placed in fear.” Burris, 920 F.3d at 955 

(quoting Howard v. State, 333 S.W.3d 137, 140 (Tex. Crim. App. 2011)). For 

robbery-by-injury, “relatively minor physical contacts” are sufficient “so long 

as they constitute more than mere offensive touching.” Id. at 956 (quoting Lane 

v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989)).

Texas courts have described Texas’s current robbery statute as broader 

than Article 1408. Lightner v. State, 535 S.W.2d 176, 177 (Tex. Crim. App. 

1976). If the current version of robbery qualifies as a violent felony, it seems 

probable that the narrower range of conduct proscribed by the older version 

should as well. Indeed, we find that to be the case.

Like the modern version of Texas robbery analyzed in Burris, Article 

1408 robbery required a “physical struggle” or a confrontation between the 

robber and the victim. See 920 F.3d at 955–56. Even where no force was 

actually used on the victim, and where no explicit threat was made or weapon 

was present, conviction under the Article 1408 required that the victim 

reasonably feared injury if he did not comply. See Horn, 230 S.W. at 694. “The 

fear must be of such nature as in reason and common experience is likely to 

induce a person to part with his property against his will.” Cranford, 377 

S.W.2d at 958. Intimidation which is likely to induce a person to part with their 

property creates the potential for violence which is sufficient under Stokeling. 

See 139 S. Ct. at 554. Force that includes the “potentiality” of causing physical 

pain or injury encompasses conduct which is reasonably likely to induce a 

person to part with property against his will. Cf. Burris, 920 F.3d at 956.

It is irrelevant that conviction under Article 1408 did not require harm 

to the victim. As explained in Stokeling, “[t]he altercation need not cause pain 

or injury or even be prolonged” to qualify as the use of physical force. 139 S. 

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Ct. at 553. Beyond the slightest offensive touching, no particular degree of force

or injury is required under the elements clause. It is instead the potential for 

injury created by the defendant’s conduct that is dispositive. Burris, 920 F.3d 

at 954. We agree with the government that the taking of property from a person 

against their will, in a manner “sufficient to overcome resistance of the 

assaulted party,” Gonzales, 126 S.W.2d at 493, is at least “susceptible” to 

causing pain or injury, Stokeling, 139 S. Ct. at 554.

Campbell argues that the minimum conduct criminalized by Article 1408 

was satisfied by the slightest offensive touching, without a physical contest 

capable of causing physical pain or injury. See Davis, 429 S.W.2d at 460 (“‘The 

degree of force used is immaterial so long as it amounts to some kind of assault, 

violence, or putting in fear, and is sufficient to compel one to part with his 

property.’” (quoting Rylee, 236 S.W. at 745)). He urges that slight offensive 

touching that causes an emotional, not physical, injury does not satisfy the 

elements clause of the ACCA.

If we analyzed the text of Article 1408 in a vacuum, we might be inclined 

to agree with Campbell. After all, the statutory definition of “assault” suggests 

that any offensive act, including spitting in the face, which creates only a sense 

of shame or other disagreeable emotion in the victim, would constitute 

sufficient force for a robbery conviction under Article 1408. See Tex. Crim. Stat. 

arts. 1339, 1140. That sounds a lot like the “slightest offensive touching” which 

constituted force at common law, and which the Supreme Court in Curtis 

Johnson declared inadequate to constitute a violent felony under the ACCA. 

559 U.S. at 138.

But we do not interpret the statute in a vacuum. We have instead 

instructed defendants such as Campbell that they must show more than a 

“theoretical possibility” that Texas would have applied Article 1408 to such 

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conduct. Reyes-Contreras, 910 F.3d at 184–85. Campbell’s burden is to show “a 

realistic probability” that Article 1408 applied to the conduct described above. 

Id. Defendants must do that with cases. Id. But Campbell has not identified a 

single instance in which a conviction under Article 1408 was premised on 

conduct which would not satisfy the generic definition of robbery. And 

“[w]ithout supporting state case law, interpreting a state statute’s text alone 

is simply not enough to establish the necessary realistic probability.” Id.

(quotation omitted). This logic has added force where, as in this case, the 

statute at issue is no longer on the books, meaning that there will never be 

another state court conviction under Article 1408. The cases discussed above 

represent the relevant universe of case law on the statute. Because they never 

applied Article 1408 in a manner that is inconsistent with our interpretation 

of a violent felony under the ACCA, Campbell cannot show a realistic 

probability that they would have applied Article 1408 to the slightest offensive 

touching.

V.

For the foregoing reasons, we hold that Campbell’s § 2255 motion

challenging the use of his burglary convictions to enhance his sentence is 

DISMISSED for lack of jurisdiction. His § 2255 motion challenging the use of 

his robbery convictions is DENIED. The sentencing enhancement was 

appropriate.

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