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

Appeals 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

Fifth Circuit

FILED

April 30, 2019

Lyle W. Cayce

Clerk

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I. Background

In February 2018, Flores pleaded guilty 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. On 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-CR3450-D). 

Because Flores violated 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 juvenile 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 the mandatory 

minimum sentence for an armed career criminal under ACCA is fifteen years 

in prison, his guideline range increased to 180–188 months. Flores raised two 

objections to the PSR. First, he argued he was not subject to the ACCA 

mandatory minimum and an enhanced guideline level. Second, he argued his 

unenhanced base offense level under U.S.S.G § 2K2.1 was incorrectly 

calculated. The district court overruled Flores’s objections, agreed with the 

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PSR, and sentenced Flores to 180 months in prison. Flores filed a timely 

appeal and makes the same arguments he made in the district 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 defined 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 an 

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 potential 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 

federal sentencing proceeding. See Custis v. United States, 511 U.S. 485, 487 (1994). 

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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 

United 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 enhancement is proper. Descamps, 570 U.S. at 257. 

Conversely, 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 Supreme 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 where 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 arise 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). 

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potential unfairness of a factual approach.” Descamps, 570 U.S. at 267 

(quoting, in part, Taylor v. United States, 495 U.S. 575, 600 (1990)). Indeed, 

our 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 destructive device, and thus cannot be a predicate ACCA offense. The 

United States concedes Flores is correct.5

Flores was adjudicated as 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.” 

TEX. PENAL CODE § 22.02(a). For a juvenile adjudication to constitute a 

predicate offense for an ACCA 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, 746 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 1183, 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 

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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 categorically 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 

serious bodily injury; or (B) anything that in the manner of its use or intended 

use is capable of causing death or serious bodily injury.” TEX. PENAL CODE

§1.07(a)(17). A deadly weapon under Texas law “could be anything,” including

a hand or foot. See Lane 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, aggravated 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 for a 

resentencing.

B. Base Offense Level Calculation

Flores 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 categorical 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 exactly 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. 

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resentencing, it makes sense to address this issue 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 violence 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 for 

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 causing 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 that 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 assaulting 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 

this information, which was provided in the PSR. Therefore, 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.

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