REVISED June 18, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10478

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

LATROY LEON BURRIS, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, GRAVES, and HO, Circuit Judges.1

WIENER, Circuit Judge:

Defendant-Appellant Latroy Leon Burris pleaded guilty to being a felon 

in possession of a firearm and was sentenced under the Armed Career Criminal 

Act (ACCA), which provides for an increased sentence if the defendant has 

been convicted of three prior violent felonies. Burris contends that he was not 

eligible for the increase because his prior Texas conviction for robbery was not 

a violent felony. We agree with Burris, and hold that the Texas robbery statute 

 

1 Judge Ho will file a dissent shortly. 

United States Court of Appeals

Fifth Circuit

FILED

June 18, 2018

Lyle W. Cayce

Clerk

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2

underlying one of his prior convictions does not have “use, attempted use, or 

threatened use of physical force” as an element. We therefore vacate his 

sentence and remand for resentencing. 

I. FACTS AND PROCEEDINGS

In July 2016, Burris pleaded guilty to being a felon in possession of a 

firearm, in violation of 18 U.S.C. § 922(g)(1), and possession with intent to 

distribute a controlled substance, under 21 U.S.C. § 841(a)(1) & (b)(1)(C).2 The 

presentence investigation report (PSR) determined that Burris was an armed 

career criminal under 18 U.S.C. § 924(e), viz., the ACCA. A defendant is an 

armed career criminal if he (1) is convicted of violating § 922(g), as Burris 

undoubtedly was, and (2) has three prior convictions for violent felonies or 

serious drug offenses.3 If a defendant meets these criteria, he is subject to a 

minimum sentence of fifteen years imprisonment.4

The PSR states that Burris had three prior convictions qualifying him 

for the ACCA: (1) a 1993 Texas conviction for robbery, (2) a 1993 Texas 

conviction for aggravated robbery, and (3) a 2012 Texas conviction for 

manufacturing/delivering a controlled substance. When he pleaded guilty, 

Burris disputed that he qualified for the enhanced penalties of the ACCA. After 

the probation office issued the PSR, Burris objected, insisting that his 

convictions for robbery and aggravated robbery do not qualify for the ACCA.5

The district court ultimately adopted the findings of the PSR, concluding that 

Burris’s prior convictions for robbery and aggravated robbery did qualify him

for the ACCA’s enhancement. The court then sentenced him to 188 months in 

 

2 The facts of Burris’s instant offenses are not relevant to the issue on appeal, which 

concerns only his prior Texas state court convictions. 

3 18 U.S.C. § 924(e)(1). 

4 Id.

5 Burris does not appear to dispute that the 2012 conviction for 

manufacturing/delivering a controlled substance is a serious drug offense under the ACCA.

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custody, a sentence at the low end of the applicable guidelines range. Burris 

timely appealed, challenging the district court’s ruling that his Texas 

convictions for robbery and aggravated robbery were “violent felonies.” After 

Burris filed his opening brief, another panel of this court held that the version 

of aggravated robbery for which Burris was convicted is a violent felony under 

the ACCA.6 Burris now concedes that his aggravated robbery conviction 

qualifies as a violent felony,7 so this appeal now concerns only whether Burris’s 

conviction for simple robbery qualifies as a violent felony. 

II. STANDARD OF REVIEW

The government acknowledges that Burris preserved his objection in the 

district court. We therefore review de novo the district court’s conclusion that 

his simple robbery conviction was a violent felony under the ACCA.8

III. DISCUSSION

A. The Relevant Statutes

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

(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[.]9

 

6 United States v. Lerma, 877 F.3d 628, 631, 635 (5th Cir. 2017) (explaining that 

aggravated robbery is divisible and the defendant’s aggravated robberies involved robberyby-threat and using and exhibiting a deadly weapon). Burris was convicted of the same type 

of aggravated robbery. 

7 He does, however, preserve this argument for further review. 

8 United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008).

9 18 U.S.C. § 924(e)(2)(B). 

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Before the Supreme Court’s decision in Samuel Johnson v. United States,10

Texas robbery was considered a violent felony under the second part of 

clause (ii), known as the “residual clause,” because it “involve[d] conduct that 

presents a serious potential risk of physical injury to another.”11 In Samuel

Johnson, however, the Court struck down the residual clause as 

unconstitutionally vague.12 Consequently, robbery is a violent felony under the 

ACCA if it has as an element the use, attempted use, or threatened use of 

“physical force.”

B. The Elements of Texas Robbery

Texas robbery is defined in § 29.02(a) of the Texas Penal Code as follows:

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

theft . . . 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.13

For today’s purpose, we refer to the alternatives delineated by subparts (1) and 

(2) as “robbery-by-injury” and “robbery-by-threat.” This court has never 

addressed whether § 29.02(a) is indivisible or divisible14—that is, whether 

robbery-by-injury and robbery-by-threat are (1) different crimes or (2) a single 

 

10 135 S. Ct. 2551 (2015). 11 United States v. Davis, 487 F.3d 282, 287 (5th Cir. 2007). 

12 Samuel Johnson, 135 S. Ct. at 2557. 13 TEX. PENAL CODE ANN. § 29.02(a). 

14 Cf. United States v. Garza, No. 2:04-CR-269, 2017 WL 318861, at *3 (S.D. Tex. Jan. 

23, 2017) (implicitly characterizing robbery as a divisible statute by using the “modified 

categorical approach”); United States v. Roman, No. CR H-92-160, 2016 WL 7388388, at *3 

(S.D. Tex. Dec. 20, 2016) (characterizing the robbery statute as divisible); United States v. 

Fennell, No. 3:15-CR-443-L (01), 2016 WL 4491728, at *5 (N.D. Tex. Aug. 25, 2016), 

reconsideration denied, No. 3:15-CR-443-L (01), 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016), 

and aff’d, 695 F. App’x 780 (5th Cir. 2017) (appearing to avoid the issue by holding that the 

robbery statute was not a violent felony “even applying the categorical approach”). 

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crime that can be committed by two different means.15 We need not decide that 

issue here, however, because our analysis under either outcome would be the 

same. 

If § 29.02(a) is indivisible, the court “focus[es] solely on whether the 

elements of the crime of conviction” include the use of force.16 Therefore, if 

either robbery-by-injury or robbery-by-threat does not require the use of force, 

robbery is not a violent felony. 

On the other hand, if § 29.02(a) is divisible, “we isolate the alternative 

under which the defendant was convicted,” then determine whether force is an 

element of that particular offense.17 To do so, courts may “look ‘to a limited 

class of documents . . . to determine what crime, with what elements, a

defendant was convicted of.’”18

Burris’s conviction documents do not specify whether he was convicted 

of robbery-by-injury or robbery-by-threat. His indictment states that he caused 

injury, but it charges him with aggravated robbery. We cannot look to the 

indictment to narrow the subsection of conviction if it indicts Burris for a crime 

other than the one to which he pleaded guilty.19 The only exception to this rule 

does not apply here because the conviction documents do not reference the 

lesser-included offense to that of the indictment.20 Because we cannot ascertain 

 

15 See Lerma, 877 F.3d at 631.

16 Id. (citing Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)). This focus on the 

elements of the offense of conviction is known as the “categorical approach.” Id. 

17 See United States v. Herrold, 883 F.3d 517, 522 (5th Cir. 2018) (en banc); Lerma, 

877 F.3d at 631.

18 Lerma, 877 F.3d 631 (quoting Mathis, 136 S. Ct. at 2249). This is known as the 

“modified categorical approach.” Id.

19 United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (“Because Turner pleaded 

guilty to a lesser included offense, and was not reindicted on that lesser count, there is no 

document actually charging him with the offense for which he was ultimately convicted. In 

this case, therefore, the indictment is not applicable to the analysis of whether the conviction 

was a conviction of a crime of violence.” (citation omitted)).

20 Although the conviction documents refer to “the charging instrument,” we have 

invoked this exception only when conviction documents explicitly reference the lesser-

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the variant of robbery for which Burris was convicted, we must analyze both 

robbery-by-injury and robbery-by-threat, even if § 29.02(a) is divisible. This is 

why we need not decide here whether robbery is divisible or indivisible.21

We first address robbery-by-injury. If a defendant can “cause bodily 

injury” without “using force,” then the Texas robbery statute—or at least its 

robbery-by-injury prong—does not have use of force as an element.22 As 

explained below, we conclude that a person can “cause bodily injury” without 

using force, so Burris’s conviction under § 29.02(a) is not a violent felony.

C. A Plethora of Precedent

As an initial matter, we note that another panel of this court, in an 

unpublished, one-sentence opinion, recently affirmed a district court’s ruling 

that Texas robbery is not a violent felony under the ACCA.23 Even though that 

holding does not bind us, relevant authority has evolved in recent years. We 

find it helpful to recount that evolution here. 

 

included offense to that in the indictment. Compare United States v. Hernandez-Borjas, 641 

F. App’x 367, 372 (5th Cir. 2016) (“The judgment provides that Hernandez–Borjas pleaded 

guilty to a lesser-included offense. And under Texas law, there is only one possible lesserincluded offense[.]”), and United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006) 

(“Here, the judgment provides that Appellant pleaded guilty to ‘the lesser charge contained 

in the Indictment.’”), with United States v. Bonilla, 524 F.3d 647, 652–53 & n.4 (5th Cir. 2008) 

(“[T]he district court could not consider the criminal information” when “[the court had] a 

certificate of disposition that does not refer back to a lesser offense in the original 

indictment.”).

21 Moreover, as explained below, we conclude that robbery-by-injury does not have use 

of force as an element. Thus, even if we did look to the indictment to determine that Burris 

was convicted of robbery by injury, the outcome of this case would not change. 

22 If a defendant could cause injury without using force, then using force is not a 

constituent part of a crime that requires causing injury. See Mathis, 136 S. Ct. at 2248–52; 

United States v. Garcia-Figueroa, 753 F.3d 179, 184 (5th Cir. 2014). 

23 United States v. Fennell, 695 F. App’x 780, 781 (5th Cir. 2017) (affirming United 

States v. Fennell, No. 3:15-CR-443-L (01), 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016) and 

Fennell, 2016 WL 4491728).

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1. The En Banc Court Answers Our Question

Texas defines “bodily injury” as “physical pain, illness, or any 

impairment of physical condition.”24 Our court has previously considered 

whether this broad definition of bodily injury requires physical force. In United 

States v. Vargas-Duran, the en banc court considered whether the Texas crime 

of “intoxication assault,” which requires the defendant to have “cause[d] 

serious bodily injury to another” was a “crime of violence” under United States 

Sentencing Guideline (“U.S.S.G.”) § 2L1.2, which “has as an element the use, 

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

another.”25 The en banc court held that it did not, for two reasons. First, the 

court explained, the Texas statute does not require that the defendant have 

the state of mind needed to “use” force: “the fact that the statute requires that 

serious bodily injury result . . . does not mean that the statute requires that 

the defendant have used the force that caused the injury.”26 Second, the court 

added that “[t]here is also a difference between a defendant’s causation of an 

injury and the defendant’s use of force.”27

We reiterated this difference in United States v. Villegas-Hernandez, 

when we considered whether the Texas crime of assault—requiring that one 

“intentionally, knowingly, or recklessly cause[] bodily injury” or threaten to do 

so—was an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C).28 Aggravated 

felonies also must have an element of “use, attempted use, or threatened use 

 

24 TEX. PENAL CODE ANN. § 1.07(a)(8).

25 356 F.3d 598, 600 (5th Cir. 2004) (en banc) (citation omitted). Although this 

Guideline is not part of the ACCA, we have explained that “[b]ecause of the similarities 

between U.S.S.G. §§ 2L1.2(b)(1)(A), 4B1.2(a), 4B1.4(a), and 18 U.S.C. § 924(e), we treat cases 

dealing with [the elements clause of] these provisions interchangeably.” United States v. 

Moore, 635 F.3d 774, 776 (5th Cir. 2011) (citation omitted).

26 Vargas-Duran, 356 F.3d at 606.

27 Id.

28 468 F.3d 874, 877–78 (5th Cir. 2006).

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of physical force.”29 We held that Texas’s assault offense did not have use or 

threatened use of physical force as an element.30 The panel approvingly cited 

Vargas-Duran’s explanation that “[t]here is . . . a difference between a 

defendant’s causation of an injury and the defendant’s use of force.”31 The 

panel listed examples of acts that could cause bodily injury without physical 

force: “making available to the victim a poisoned drink while reassuring him 

the drink is safe, or telling the victim he can safely back his car out while 

knowing an approaching car driven by an independently acting third party will 

hit the victim.”32

2. The Supreme Court Weighs In

Looking solely at this precedent, Vargas-Duran would compel the 

holding that a person may “cause bodily injury” per Texas law without using 

“physical force” per federal law. But the Supreme Court has recently decided

three cases that are related to the issue before us. First, in Curtis Johnson v. 

United States, the Court interpreted the phrase “physical force” within the 

ACCA. The Court noted that the common law definition of “force” can be

“satisfied by even the slightest offensive touching.”33 But the Court held that 

the common law definition of force did not apply to the ACCA; in the ACCA 

context, “the phrase ‘physical force’ means violent force—that is, force capable 

of causing physical pain or injury to another person.”34 The Court relied heavily 

on the use of “physical force” in the context of a “violent felony”: “When the 

 

29 Id. at 878. This “aggravated felony” definition incorporates a statutory provision 

using the term “crime of violence,” which is different from the “crime of violence” provision in 

Vargas-Duran. See id.; Vargas-Duran, 356 F.3d at 605. 

30 Villegas-Hernandez, 468 F.3d at 882.

31 Id. at 880 (quoting Vargas-Duran, 356 F.3d at 606) (omission in original). 32 Id. at 879.

33 Curtis Johnson v. United States, 559 U.S. 133, 139 (2010). 34 Id. at 140. 

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adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong 

physical force is even clearer.”35

Second, and more recently, the Court decided United States v. 

Castleman, in which it considered the term “physical force” in the context of a 

“misdemeanor crime of domestic violence” (MCDV). A MCDV is defined using 

identical language to the ACCA: it “has, as an element, the use or attempted 

use of physical force.”36 But the Court distinguished “physical force” in the 

MCDV context from “physical force” in the ACCA, as defined in Curtis

Johnson. The Court held that in the context of a MCDV, “physical force” is 

defined as “the common-law meaning of ‘force,’” which can be satisfied by mere 

offensive touching.37 In making this distinction, the Court relied on the 

differences between the two contexts in which the term “physical force” arises: 

“[W]hereas the word ‘violent’ or ‘violence’ standing alone ‘connotes a 

substantial degree of force,’ that is not true of ‘domestic violence.’ ‘Domestic 

violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts 

that one might not characterize as ‘violent’ in a nondomestic context.”38

Applying this common-law definition of “physical force,” the Court held 

that the defendant’s conviction for “caus[ing] bodily injury” to the mother of his 

child categorically qualified as a MCDV.39 In doing so, the Court explained that 

“the knowing or intentional causation of bodily injury necessarily involves the 

use of physical force” in the MCDV context.40 The Court added that “the 

 

35 Id.; see also id. at 140 (“[T]he word ‘violent’ in § 924(e)(2)(B) connotes a substantial 

degree of force.”), 142 (“[T]he term ‘physical force’ itself normally connotes force strong 

enough to constitute ‘power’—and all the more so when it is contained in a definition of 

‘violent felony.’”). 

36 United States v. Castleman, 134 S. Ct. 1405, 1409 (2014) (quoting 18 U.S.C.

§ 921(a)(33)(A)).

37 Id. at 1410. 38 Id. at 1411 (quoting Curtis Johnson, 559 U.S. at 140). 

39 Id. at 1409, 1413–15. 

40 Id. at 1414.

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common-law concept of ‘force’ encompasses even its indirect application,” such 

as poisoning a victim.41 Importantly, though, the Court expressly declined to 

reach the question “[w]hether or not the causation of bodily injury necessarily 

entails violent force.”42 Neither did the Court decide the question whether 

minor injuries, such as a “cut, abrasion, [or] bruise . . . . necessitate violent 

force, under [Curtis] Johnson’s definition of that phrase.”43

Even more recently, the Court decided Voisine v. United States, which 

concerned the meaning of “use” rather than “physical force.” Like Castleman, 

Voisine arose in the context of an MCDV.44 Specifically, the Court considered 

whether a person could recklessly “use” physical force—in the context of an 

MCDV—or if such “use” required knowledge or intent.45 The Court held that 

there was no requirement of intent or knowledge: A person can “use” force 

while acting recklessly.46 The Court added that use of force does require a 

“volitional” action; by contrast, involuntary or accidental movements are not 

uses of force in the context of a MCDV.47

3. The Impact Of Castleman and Voisine

The crux of the government’s contention is that Castleman, an MCDV 

case, should apply to ACCA/violent felony cases. But prior panels of this court 

 

41 Id. at 1414–15.

42 Id. at 1413 (emphasis added). The Court added: 

The Courts of Appeals have generally held that mere offensive touching cannot 

constitute the ‘physical force’ necessary to a ‘crime of violence,’ just as we held 

in [Curtis] Johnson that it could not constitute the ‘physical force’ necessary to 

a ‘violent felony.’ . . . Nothing in today’s opinion casts doubt on these holdings, 

because—as we explain—’domestic violence’ encompasses a range of force 

broader than that which constitutes ‘violence’ simpliciter.

Id. at 1411 n.4. 43 Id. at 1414.

44 Voisine v. United States, 136 S. Ct. 2272, 2276–77 (2016). 45 Id.

46 Id. at 2278–80.

47 Id. at 2278–79.

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have determined that, while Voisine’s holding applies outside of the MCDV 

context, Castleman’s does not. 

First, in United States v. Howell and United States v. Mendez-Henriquez, 

this court adopted Voisine’s holding in the context of a “crime of violence” under 

two sentencing guidelines.48 Those cases effectively abrogated the first part of 

Vargas-Duran, which had held that “using” force requires a mental state of 

intent.49 We have treated the definition of crime of violence in those guidelines 

“interchangeably” with the definition of violent felony in the ACCA.50 Thus, to 

“use” force under the ACCA, a person must only act volitionally; a statute need 

not have an intent requirement for that offense to “use” force and qualify as a 

violent felony under the ACCA.

This court has also held, in two published decisions, that—unlike

Voisine—Castleman’s holding does not apply outside of the MCDV context. In 

United States v. Rico-Mejia, this court acknowledged the rule from VillegasHernandez, and other cases stemming from Vargas-Duran, that “a person 

could cause physical injury without using physical force.”51 The Rico-Mejia

panel acknowledged Castleman, but held that “[b]y its express terms, 

Castleman’s analysis is not applicable to the physical force requirement for a 

crime of violence[.] . . . Accordingly, Castleman does not disturb this court’s 

precedent regarding the characterization of crimes of violence[.]”52

 

48 United States v. Mendez-Henriquez, 847 F.3d 214, 220–22 (5th Cir.), cert. denied, 

137 S. Ct. 2177 (2017); United States v. Howell, 838 F.3d 489, 499–501 (5th Cir. 2016), cert. 

denied, 137 S. Ct. 1108 (2017).

49 Both cases stopped short of expressly saying that Voisine abrogated this part of 

Vargas-Duran. See Mendez-Henriquez, 847 F.3d at 221 (acknowledging that part of VargasDuran remains good law); cf. Howell, 838 F.3d at 501. 50 Moore, 635 F.3d at 776 (citation omitted). 51 United States v. Rico-Mejia, 859 F.3d 318, 321 (5th Cir. 2017). 52 Id. at 322–23. More recently, a panel of this court reached the same conclusion in 

United States v. Reyes-Contreras. 882 F.3d 113, 123, vacated, 2018 WL 3014176. But on June 

15, 2018, this court voted to rehear Reyes-Contreras en banc. Accordingly, that panel opinion 

has been vacated.

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D. Causing Injury Without Using Force

The government maintains that Vargas-Duran does not control. It first 

argues that because Voisine applies outside the MCDV context, Castleman

must as well; as a result, the government contends, Rico-Mejia was wrongly 

decided because it conflicts with the earlier decisions in Howell and MendezHenriquez. Second, the government insists that Castleman overruled our 

precedent that causing injury captures more conduct than using force. 

But we need not rely on the line of cases constituted by, e.g., VargasDuran, Villegas-Hernandez, and Rico-Mejia. Even if the government is correct 

that Vargas-Duran and its line of cases no longer control, we nevertheless 

reverse because there are other examples of how a person may cause injury 

without using physical force. Specifically, Burris contends that causing a minor

injury, such as a bruise, meets the Texas definition of causing “bodily injury,”53

but does not require physical force under Curtis Johnson. 

The Texas Court of Criminal Appeals has interpreted the definition of 

“bodily injury” quite expansively, noting that “[t]his definition appears to be 

purposefully broad and seems to encompass even relatively minor physical 

contacts so long as they constitute more than mere offensive touching.”54 In 

Lane v. State, the court found bodily injury when the victim’s “wrist was 

twisted” and she sustained a “bruise on her right wrist.”55 The court also 

approvingly cited an earlier decision holding that “a small bruise” constituted 

bodily injury.56 In both cases, the victims suffered some “physical pain.”57 It 

 

53 Which, again, is defined as “physical pain, illness, or any impairment of physical 

condition.” TEX. PENAL CODE ANN. § 1.07 (a)(8).

54 Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989) (en banc). 55 Id. at 787.

56 Id. at 786–87 (citing Lewis v. State, 530 S.W.2d 117–18 (Tex. Crim. App. 1975)); see 

Gay v. State, 235 S.W.3d 829, 833 (Tex. App.—Fort Worth 2007) (indicating that “pinch[ing]”

or “rubb[ing]” a child’s face amounted to bodily injury).

57 Lane, 763 S.W.2d at 787; Lewis, 530 S.W.2d at 118.

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appears that pain is not a requirement, however. Any “impairment of physical 

condition” is bodily injury.58

The question, then, is whether causing such a minor injury that impairs 

a physical condition, but with no or minimal pain, necessarily requires the 

“violent force” described in Curtis Johnson.59 As explained above, the Court, in 

Curtis Johnson, defined “physical force” as “violent force—that is, force capable 

of causing physical pain or injury to another person.”60 In doing so, the Court 

explained that “the word ‘violent’ . . . connotes a substantial degree of force”

and “strong physical force.”61 It approvingly cited several sources that defined 

“violent” as “extreme and sudden,” “furious[,] severe[,] [and] vehement,” and 

“great physical force.”62 This language suggests that causing “relatively minor 

physical contacts”63 (which are still more than “mere offensive touching”64) 

does not entail the “violent force” described in Curtis Johnson.

Castleman itself also suggests that a minor injury does not require 

Curtis Johnson’s violent force. First, the Court noted that the Tennessee 

statute at issue, like § 29.02, broadly defined “bodily injury,” even though that 

statute specifically included a mere abrasion or bruise.65 The Court expressly 

 

58 See TEX. PENAL CODE ANN. § 1.07 (a)(8) (“‘Bodily injury’ means physical pain, 

illness, or any impairment of physical condition.” (emphasis added)); Gay, 235 S.W.3d at 834 

(Dauphinot, J., dissenting) (“[I]f the actor causes physical pain, it is not necessary that he 

also cause impairment of the [victim’s] physical condition [to cause bodily injury]. Similarly, 

if the actor causes impairment of the [victim’s] physical condition, he is not required to cause 

physical pain as well.”). 

59 Curtis Johnson remains the defining case for “physical force” in the ACCA. See 

Castleman, 134 S. Ct. at 1410. As we understand it, the government does not contend that 

Castleman’s broad definition of “physical force” in the domestic violence context overrules the 

ACCA definition of “physical force” in Curtis Johnson. 60 Curtis Johnson, 559 U.S. at 140. 61 Id. 62 Id.

63 Lane, 763 S.W.2d at 786. 

64 Id. 

65 Castleman, 134 S. Ct. at 1414. 

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declined to decide whether “these forms of injury necessitate violent force, 

under [Curtis] Johnson’s definition of that phrase.”66 Second, in discussing the 

difference between violence in the ACCA/violent felony context and in the 

domestic violence context, the Castleman Court explained that “[m]inor uses 

of force may not constitute ‘violence’ in the generic sense.”67 The Court then 

added:

For example, in an opinion that we cited with approval in [Curtis] 

Johnson, the Seventh Circuit noted that it was “hard to 

describe . . . as ‘violence’” “a squeeze of the arm [that] causes a 

bruise.” But an act of this nature is easy to describe as “domestic 

violence,” when the accumulation of such acts over time can 

subject one intimate partner to the other’s control.68

Although the Court did not say so explicitly, this suggests that a bruise 

illustrates the difference between “violent force” in the ACCA context on the 

one hand and domestic violence on the other. By setting up this contrast, the 

Court indicated that causing a bruise is not “substantial” enough to be “violent 

force.”69

 

66 Id.

67 Id. at 1412. 68 Id. (quoting Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir. 2003)) (alterations in 

original).

69 The government contends that there is no material difference between a bruise (and 

similar minor injuries) and a “slap in the face,” which it contends satisfies Curtis Johnson’s 

“violent force” definition. See Curtis Johnson, 559 U.S. at 143. It is not clear, however, that a 

slap in the face would be “violent force.” In making this reference, the Court was refuting the 

government’s argument that because “bodily injury” was not present in § 924(e)(2)(B), but 

was in other statutes, the Court should interpret “physical force” broadly and not require 

bodily injury. The Court explained: 

Specifying that “physical force” must rise to the level of bodily injury does not 

suggest that without the qualification “physical force” would consist of the 

merest touch. It might consist, for example, of only that degree of force 

necessary to inflict pain—a slap in the face, for example. 

Id. (emphasis added). It is unclear whether the Court was positing “that degree of force 

necessary to inflict pain” as a potential alternate definition, or as synonymous with “violent 

force.” Moreover, it declined to expressly put a slap in the face on one side of the “physical 

force” line. 

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The government’s remaining arguments are unavailing. It first cites 

several cases in which Texas courts defined robbery in terms of force or 

violence. But “[t]he meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question

of federal law, not state law.”70 This is particularly salient given that the Court 

has defined “physical force” differently for different federal statutes.71

Second, the government cites United States v. Santiesteban-Hernandez, 

in which this court held that Texas robbery was a crime of violence per U.S.S.G. 

§ 2L1.2.72 There, however, we analyzed § 29.02 as a “predicate offense” of 

§ 2L1.2,73 not under the “elements” clause. We acknowledged that Texas 

defines robbery in terms of its result—bodily injury—rather than in terms of 

“force,” as do a majority of states.74 But we stated that Texas’s result-oriented 

approach and other states’ force approach were “two sides of the same coin[.]”75

We therefore held that the Texas statute “substantially” corresponds to other 

robbery statutes that require force, and that “the difference is not enough to 

remove [§ 29.02] from the family of offenses commonly known as ‘robbery.’”76

Santiesteban-Hernandez does not support the government’s argument. These 

 

70 Curtis Johnson, 559 U.S. at 138. 

71 The government also points to the fact that robbery was initially included in the 

enumerated offenses clause, but was removed before passage. United States v. Mathis, 963 

F.2d 399, 405–07 (D.C. Cir. 1992). But that draft also explicitly required “use of force.” See 

id. As explained above, Texas robbery is broader. Further, the fact that robbery was removed 

from the enumerated-offenses clause makes it difficult to infer that this necessarily favors 

the government. Cf. United States v. Green, 882 F.2d 999, 1002 (5th Cir. 1989) (“[R]eliance

on this legislative history is misplaced, however, as it relates to an earlier version of this 

provision which was amended to its present form during floor debates.”). 

72 469 F.3d 376, 378 (5th Cir. 2006), abrogated by United States v. Rodriguez, 711 F.3d

541 (5th Cir. 2013). 

73 Id. Unlike the ACCA, U.S.S.G. § 2L1.2 counts robbery as a predicate offense. Id.

(citing U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2005)).

74 Id. at 380. The approach taken by other states was important because a “predicate 

offense” analysis requires that we “determin[e] the generic, contemporary meaning of the 

predicate offense, [and] compare it to the statute governing the prior conviction.” Id. at 379. 

75 Id. at 381. We need not consider whether this reasoning would survive Curtis 

Johnson’s clarification of the meaning of physical force. 

76 Id.

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statements acknowledge that there is some overlap between “causing injury” 

and “using force,” but “substantial” similarity is not enough when we ask 

whether “using force” is an element of an offense. The Santiesteban-Hernandez

court even acknowledged this, adding that if we analyzed the statute under the 

“elements” prong instead, “th[e] omission [of the word ‘force’ from the statute] 

would be dispositive,” and robbery would not be a crime of violence because it 

did not have force as an element.77

Third, the government contends that, even if there are hypothetical 

examples of causing bodily injury without using physical force, those examples

are not feasible in the robbery context. The government cites earlier decisions 

of this court maintaining that examples of robbery convictions which do not 

involve use of force must be “realistic probabilit[ies],” and “[t]heoretical

applications of a statute to conduct that would not constitute a crime of 

violence do not demonstrate that the statutory offense is categorically not a 

crime of violence.”78 But consider this hypothetical: (1) a robber picks a victim’s 

pocket; (2) the victim gives chase; and (3) the robber or his accomplice trips the 

victim, causing the victim to fall and allowing the robber to get away. By 

tripping the victim and causing him to fall, the robber “impaired” the victim’s 

 

77 Id. at 378–79. 

78 United States v. Carrasco-Tercero, 745 F.3d 192, 197–98 (5th Cir. 2014). Supreme 

Court cases have required this “realistic probability” only when considering whether a given 

conviction is an enumerated offense, but this court appears to have expanded this 

requirement to the elements clause in some cases. Compare Moncrieffe v. Holder, 569 U.S. 

184, 191 (2013), and Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), with, e.g., United 

States v. Ceron, 775 F.3d 222, 227, 229 (5th Cir. 2014), and Carrasco-Tercero, 745 F.3d at

195. Burris disputes this line of cases requiring a “realistic probability” that particular 

conduct would be subject to a robbery prosecution, contending that they are inconsistent with 

earlier Fifth Circuit cases. Earlier cases do indeed state that a component of a crime is not 

an element if “any set of facts would support a conviction without proof of that component.”

Vargas-Duran, 356 F.3d at 605 (emphasis added). We need not consider whether Burris is 

correct, because, as explained below, there are realistic examples of non-violent-force 

robberies. 

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“physical condition,” satisfying the Texas definition of “bodily injury,”79 but 

falling outside the boundaries of “violent force” in Curtis Johnson. A conviction 

for such an offense certainly appears to be a realistic probability. In fact, Texas 

appears to occasionally take novel approaches to the “causing bodily injury” 

element—Texas has recently charged a man with assault (that is, “caus[ing] 

bodily injury”) by sending a Tweet with animation that caused the victim to 

have a seizure.80 With this significant departure from the common 

understanding of assault, it is hardly more of a stretch to envision a defendant 

causing a seizure in this way, and then dashing into the victim’s home or office 

to steal his property while the victim is afflicted.

Finally, the government points out that the Eighth Circuit recently held 

that Texas robbery is a violent felony.81 The court in that case, however, made 

no effort to grapple with Texas’s broad definition of bodily injury.82 With its 

limited analysis, that case is unpersuasive. 

In sum, Texas robbery-by-injury does not have use of physical force as 

an element. As a result, Burris’s prior conviction under § 29.02 was not a 

violent felony under the ACCA.83

IV. CONCLUSION

We VACATE Burris’s sentence and REMAND for resentencing, 

consistent with this opinion. 

 

79 A person may be convicted under § 29.02 for injuring someone during flight from 

the scene of a theft. White v. State, 671 S.W.2d 40, 42 (Tex. Crim. App. 1984) (en banc); see 

Lightner v. State, 535 S.W.2d 176, 177–78 (Tex. Crim. App. 1976); see also TEX. PENAL CODE 

ANN. § 29.01 (The injury must be “in an attempt to commit, during the commission, or in 

immediate flight after the attempt or commission of theft.”).

80 Indictment, State v. Rivello, No. F1700215 (Crim. Dist. Ct. No. 5, Dallas County, 

Tex, filed Mar. 20, 2017). 

81 United States v. Hall, 877 F.3d 800, 808 (8th Cir. 2017).

82 Id. at 807.

83 As noted above, we need not address robbery-by-threat.

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