### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18

- 40334

UNITED STATES OF AMERICA,

Plaintiff

- Appellee

v. ADAM ALFREDO FLORES, also known as Adam Flores,

Defendant

- Appellant

Appeal s from the United States District Court for the Southern District of Texas

Before HAYNES, GRAVES, and HO, Circuit Judges

. PER CURIAM: Defendant Adam Alfredo Flores appeals the district court’s
determination that he was subject to an enhanced mandatory minimum sentence of fifteen years under the Armed Career Criminal Act (ACCA) , 18 U.S.C. § 924(e)

. Flores also appeals his base offense level calculation under U.S.S.G. § 2K2.1

. We VACATE the sentence and REMAND for a resentencing

. 1

1 Flores does not challenge his conviction, which remains in place. United States Court of Appeals Fif th Circuit 

### FILED April 30, 2019 Lyle W. Cayce Clerk Case: 18-40334 Document: 00514937178 Page: 1 Date Filed: 04/30/2019No. 18

- 40334

2 I. Background In February 2018, Flores pleaded guil ty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

. The following criminal history is relevant to calculating his sentencing guideline range. In 1996, at age 15, Flores was adjudicated a juvenile delinquent for aggravated assault with a firearm and sentenced to incarceration with the Texas Youth Commission. O n February 12, 2003, Flores pleaded guilty in Texas state court to aggravated robbery and aggravated assault causing bodily injury stemming from an incident on May 6, 2002 (Cause No. 02

- CR

- 2120

- D)

. That same day, Flores also pleaded guilty to aggravated assault with a deadly weapon stemming from an incident that occurred on July 14, 2002 (Cause No. 02

- CR

3450

- D)

. Because Flores vi olated 18 U.S.C. § 922(g) (1) and had at least two prior felony convictions for a crime of violence, Flores’s base offense level was 24. See U.S.S.G § 2K2.1. The presentence report (PSR) determined, however, that Flores’s two adult convictions and juvenil e conviction subjected him to a statutory ACCA enhancement as an armed career criminal because Flores had three prior convictions for “violent felonies , ” raising his base offense level to
33. See U.S.S.G § 4B1.4. Considering his three

- level reduction for acceptance of responsibility and criminal history category V, the total offense level of 30 resulted in a guideline range of 151 to 188 months. Because t he mandatory minimum sentence for a n armed career criminal under ACCA is fi fteen years in prison, his guideline range increased to 180

– 188 months. Flores raised two objections to the PSR . F irst , he argued he was not subject to the ACCA mandatory minimum and an enhanced guideline level. Second, he argued his unenhanced base off ense level under U.S.S.G § 2K2.1 was incorrectly calculated. The district court overruled Flores’s objections, agreed with the Case: 18-40334 Document: 00514937178 Page: 2 Date Filed: 04/30/2019No. 18

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3 PSR, and sentenced Flores to 180 months in prison

. Flores filed a timely appeal and makes the same arguments he made in the dis trict court

. II. Discussion A. ACCA Enhancement Flores first argues his juvenile adjudication for Texas aggravated assault is not a “violent felony” for the purposes of an ACCA sentence enhancement. 2 We review the district court’s determination that a prior conviction qualifies as a “violent felony” under ACCA de novo. United States v. Massey , 858 F.3d 380, 382 (5th Cir. 2017). A defendant convicted of violating 18 U.S.C. § 922(g)(1) is subject to a
maximum of ten years in prison. See 18 U.S.C. § 924(a)(2). Under ACCA, however, the penalty is increased to a minimum of fifteen years if the defendant has “three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1). A “violent felony” is def ined as any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by a n adult, 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, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious p otential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B) (emphasis added)

. Thus, a juvenile adjudication may qualify as an ACCA predicate offense only if it meets the requirements of subsection (i) or (ii) and involves the use or carrying of a knife, firearm, or
destructive device.

2 Flores also argues his juvenile adjudication suffered from various procedural defects. This argument is foreclosed as an unauthorized collateral attack of a prior conviction in a federa l sentencing proceeding. See Custis v. United States , 511 U.S. 485, 487 (1994). Case: 18-40334 Document: 00514937178 Page: 3 Date Filed: 04/30/2019No. 18

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4 To determine whether a prior conviction qualifies as a violent felony under ACCA, we traditionally apply the “categorical approach.” Descamps v. United States , 570 U.S. 254, 257 (2013). This approach “ examine [s] the elements of the offense, rather than the facts underlying the conviction or the defendant’s actual conduct, to determine whether the enhancement applies.” United States v. Rodriguez

- Negrete , 772 F.3d 221, 225 (5th Cir. 2014) (quoting
U

nited States v. Teran

- Salas , 767 F.3d 453, 458 (5th Cir. 2014))

. If “the elements of the statute forming the basis of the defendant’s conviction . . . are the same as , or narrower than, those of the generic offense[,]” then there is a categorical match and the enhanceme nt is proper. Descamps , 570 U.S. at 257. Converse ly, a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense. Mathis v. United States , 136 S. Ct. 2243, 2251 (2016). We have followed Supre me Court precedent by applying the categorical approach to determine whether a prior adult conviction qualifies as a predicate ACCA offense, 3 but neither the Supreme Court nor our court has yet addressed whether the categorical approach applies to juvenile adjudications “involv[ing] the use or carrying of a firearm, knife, or destructive device” for ACCA enhancement purposes. The Supreme Court has consistently and clearly applied the categorical (or modified categorical) approach in all manner of
cases whe re determination of a prior conviction’s status is necessary. Its reasons for applying the categorical approach to adult convictions appear to apply equally to juvenile adjudications: ACCA’s “text and history”; the “Sixth Amendment concerns that would ari se from sentencing courts making findings of fact that properly belong to juries”; and “ the practical difficulties and

3 See, e.g. , United States v. Espinoza , 733 F.3d 568, 571 (5th Cir. 2013). Case: 18-40334 Document: 00514937178 Page: 4 Date Filed: 04/30/2019No. 18

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5 potential unfairness of a factual approach.” Descamps , 570 U.S. at 267 (quoting, in part, Taylor v. United States , 495 U.S. 575, 600 (19 90)). Indeed,

o ur sister circuits have consistently held the categorical approach applies in this circumstance, with no circuit holding to the contrary. 4 We can discern no basis to treat determination of the nature of juvenile adjudications differently than adult convictions. Thus, we conclude we must apply the categorical approach here. Using that approach, Flores argues that his juvenile adjudication based on Texas aggravated assault did not categorically involve the use of a knife, a gun, or a dest ructive device, and thus cannot be a predicate ACCA offense. The United States concedes Flores is correct

. 5 Flores was adjudicated a s a juvenile delinquent based on aggravated assault under Texas law, which penalizes a person who commits an assault that “ (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.”
T EX

. P EN AL C ODE § 22.02(a). F or a juvenile adjudication to constitute a predicate offense for an AC CA enhancement, it must “ involv[ e ] the use or carrying of a firearm, knife, or destructive device.” See 18 U.S.C. § 924(e)(2)(B). 6

4 See United States v. Headbird , 832 F.3d 844, 846 (8th Cir. 2016); United States v. Bankhead , 7 46 F.3d 323, 325 (8th Cir. 2014); United States v. Nevels , 490 F.3d 800, 808

– 09 (10th Cir. 2007); United States v. Rosa , 507 F.3d 142, 157

– 59 (2d Cir. 2007); United States v. Wells , 473 F.3d 640, 645

– 46 (6th Cir. 2007); United States v. Burge , 407 F.3d 118 3, 1187 (11th Cir. 2005) ; United States v. Richardson , 313 F.3d 121, 126

– 28 (3d Cir. 2002)

.

5 We are not bound by the Government’s concessions, of course, but we note that it would be time

- saving and sensible if the Government would examine such concepts before appearing in the district court so that the district court has the benefit of hearing such concessions.

6 A “destructive device” is defined as any “explosive, incendiary, or poison gas

— bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an Case: 18-40334 Document: 00514937178 Page: 5 Date Filed: 04/30/2019No. 18

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6 The elements of Flores’s crime, Texas aggravated assault, covers “a greater swath of conduct than the elements of the relevant ACCA offense

. ” Mathis , 136 S. Ct. at 2251. With respect to the first prong of Texas aggravated assault, causing serious bodily injury does not categori cally require the use or carrying of a knife, firearm, or destructive device. As for the second prong, a deadly weapon under Texas law is defined as “(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or

se rious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” T EX

. P EN AL C ODE §1.07(a)(17). A deadly weapon under Texas law “could be anything,” includ ing a hand or foot. See La ne v. State , 151 S.W.3d 188, 191 & n.5 (Tex. Crim. App. 2004). Both prongs of Texas aggravated assault are broader and cover “a greater swath of conduct” than the relevant ACCA offense for juvenile offenses

. Mathis , 136 S. Ct . at 2251. Thus, a ggravated assault under Texas law does not categorically require the use or carrying of a knife, firearm, or destructive
device , and cannot qualify as a predicate offense under ACCA for juvenile adjudications

. 7 Accordingly, we must vacate the sentence and remand fo r a resentencing.
B. Base Offense Level Calculation
F lores also claims the district court erred when it determined his base offense level was 24 under U.S.S.G § 2K2.1

. Although we are remanding for a

explosive or incendiary charge of more than one

- quarter once, mine[s]” or any combination of these devices or devices like them. See 18 U.S.C. § 921(a)(4).
7 This result highlights the difficulties caused by the categoric al approach

— it is undisputed that Flores’s juvenile adjudication stems from an aggravated assault where he caused serious bodily injury by shooting the victim with a firearm. Nonetheless, he will now be treated differently than other juveniles who acted ex actly the same way but were convicted under a narrower statute. But, as stated before, in light of precedent, we conclude we must apply the categorical approach, even if it leads to such an unfortunate outcome. Case: 18-40334 Document: 00514937178 Page: 6 Date Filed: 04/30/2019No. 18

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7 resentencing, it makes sense to address this i ssue since it will arise again at the new hearing. A defendant convicted for being a felon in possession receives a base offense level of 24 if he committed the offense “subsequent to sustaining at least two felony convictions of either a crime of violenc e or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2)

. Flores argues his prior adult Texas convictions should not have counted separately. We review the district court’s application of the Sentencing Guidelines de novo and its factual findings fo r clear error. United States v. Cisneros

- Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008).
Flores argues his convictions should be consolidated because he was sentenced on the same day, February 12, 2003, for both aggravated robbery and aggravated assault cau sing bodily injury (Cause No. 02

- CR

- 2120

- D), and aggravated assault with a deadly weapon (Cause No. 02

- CR

- 3450

- D). The Sentencing Guidelines, however, state that prior “sentences always are counted separately if the sentences were imposed for offenses tha t were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” U.S.S.G. §4A1.2(a)(2). Here, Flores was arrested on June 17, 2002, in Cause No. 02

- CR

- 2120, for robbing
and assault ing a male victim on May 6, 2002. Flores was then arrested again on October 2, 2002, in Cause No. 02

- CR

- 3450

- D, for the aggravated assault of his girlfriend on July 14, 2002. Flores did not provide any evidence to rebut
th is information , which was provid ed in the PSR. Th erefore, the district court did not err in counting the convictions separately and calculating Flores’s base offense level. The sentence is VACATED, and the case is REMANDED to the district court for a resentencing. Case: 18-40334 Document: 00514937178 Page: 7 Date Filed: 04/30/2019