IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-11078

Conference Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DANTANA TANKSLEY, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR PANEL REHEARING

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.

REAVLEY, Circuit Judge:

In light of Mathis v. United States, 136 S.Ct. 2243 (2016), and United 

States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), we granted defendant Dantana 

Tanksley’s motion for panel rehearing to decide whether United States v. Ford, 

509 F.3d 714 (5th Cir. 2007), still represents the law. Ford held that a 

conviction for possession with intent to deliver a controlled substance under 

section 481.112(a) of the Texas Health and Safety Code (“Section 481.112(a)”) 

qualifies as a “controlled substance offense” under the United States 

Sentencing Commission Guidelines Manual (the “Guidelines”). On rehearing, 

United States Court of Appeals

Fifth Circuit

FILED

January 18, 2017

Lyle W. Cayce

Clerk

 Case: 15-11078 Document: 00513840322 Page: 1 Date Filed: 01/18/2017
No. 15-11078

2

our prior panel opinion is WITHDRAWN, and this opinion is SUBSTITUTED 

therefor.

I.

In 2015, Tanksley pleaded guilty to violating 18 U.S.C. § 922(g), which 

prohibits convicted felons from possessing firearms. At sentencing, the district 

court found that a prior conviction under Section 481.112(a) for possession with 

intent to deliver a controlled substance constituted a “controlled substance 

offense” within the meaning of the Guidelines, § 4B1.1. Tanksley objected to 

this particular enhancement but conceded his objection was foreclosed by Ford. 

Tanksley then appealed, again conceding that Ford foreclosed this argument. 

Indeed, both of the arguments Tanksley made on appeal—he also disputed the 

constitutionality of 18 U.S.C. § 922(g)—were admittedly foreclosed, and we 

granted the government’s unopposed motion for summary affirmance. See 

United States v. Tanksley, Case No. 15-11078, 2016 WL 4375058 (5th Cir. Aug. 

16, 2016). Shortly before we affirmed Tanksley’s conviction and sentence, the 

Supreme Court issued Mathis. Based on that decision and this Court’s decision 

in Hinkle, Tanksley moved for panel rehearing. We granted the motion.

Mathis is relevant to the district court’s determination that the Section 

481.112(a) conviction represented a controlled substance offense under the 

Guidelines. “In determining if a prior conviction is for an offense enumerated 

or defined in a Guidelines provision, we generally apply the categorical 

approach and look to the elements of the offense enumerated or defined by the 

Guideline section and compare those elements to the elements of the prior 

offense for which the defendant was convicted.” United States v. Howell, 838 

F.3d 489, 494 (5th Cir. 2016). Some criminal statutes, however, are “divisible,” 

meaning a single statute “define[s] multiple crimes.” Mathis, 136 S.Ct. at 

2249. The Supreme Court has “approved the ‘modified categorical approach’

for use with statutes having multiple alternative elements,” permitting courts 

 Case: 15-11078 Document: 00513840322 Page: 2 Date Filed: 01/18/2017
No. 15-11078

3

to examine “a limited class of documents (for example, the indictment, jury 

instructions, or plea agreement and colloquy) to determine what crime, with 

what elements, a defendant was convicted of.” Id. With the precise crime thus 

identified, the court can then apply the categorical approach, asking whether 

that precise crime matches the Guidelines offense at issue. Id.

Some criminal statutes appear divisible but are not. These statutes, 

rather than providing alternative elements, instead list “various factual means 

of committing a single element.” Id. In Mathis, the Supreme Court held that 

the modified categorical approach is not appropriate for this species of criminal 

statute. Id. at 2257. More importantly here, it also “provided helpful guidance 

for determining whether a predicate statute of conviction is divisible.” United 

States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016). This factual and legal 

backgrounded concluded, we turn to our analysis.

II.

We have been asked to find an otherwise controlling precedent obsolete. 

While the defendant argues that, together, Mathis and Hinkle put Ford into 

doubt, it is appropriate to focus our inquiry on Mathis. This is because, under 

the rule of orderliness, “one panel of this Court may not overrule another.” 

United States v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (quoting Cent. Pines 

Land Co. v. United States, 274 F.3d 881, 893 (5th Cir. 2001)). As a corollary, 

“to the extent that a more recent case contradicts an older case, the newer 

language has no effect.” Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 

(5th Cir. 2000). If, however, a Supreme Court decision “expressly or implicitly” 

overrules one of our precedents, we have the authority and obligation to declare 

and implement this change in the law. See United States v. Kirk, 528 F.2d 

1057, 1063 (5th Cir. 1976). “Such an intervening change in the law must be 

unequivocal, not a mere ‘hint’ of how the Court might rule in the future.” 

United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Accordingly, only 

 Case: 15-11078 Document: 00513840322 Page: 3 Date Filed: 01/18/2017
No. 15-11078

4

Mathis can inter Ford, and we ignore Hinkle while asking whether the 

Supreme Court unequivocally abrogated Ford.1

Under Section 481.112(a), “a person commits an offense if the person 

knowingly manufactures, delivers, or possesses with intent to deliver a 

controlled substance” as defined elsewhere in the Code. Ford’s feature holding 

was that a conviction for “‘possession with an intent to deliver’ a controlled 

substance under section 481.112(a) . . . can be used as a basis for a sentence 

enhancement as a ‘controlled substance offense’ under” the Guidelines. 509 

F.3d at 715. That holding, if still applicable, controls this case because the 

defendant here was also convicted of possession with intent to deliver a 

controlled substance.

More important for our purposes, however, is Ford’s necessary predicate 

holding—that Section 481.112(a) is a divisible statute such that (1) use of the 

modified categorical approach is appropriate and (2) “possession with intent to 

deliver” a controlled substance is a distinct crime from mere delivery of that 

same controlled substance. This holding was crucial because, in United States 

v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (per curiam), we had already held 

that a conviction for delivery of a controlled substance under that same Section 

481.112(a) was not a “drug trafficking offense” under the Guidelines. There 

being no substantive difference between a “controlled substance offense” and a 

“drug trafficking offense” under the Guidelines, the holding in Gonzales would 

necessarily control the outcome in Ford if Section 481.112(a)’s reference to 

 

1 Our approach would be different if Hinkle had considered whether Mathis 

unequivocally overruled Ford. Such a ruling would have resolved this case as well. Hinkle

did not take this approach, instead simply recognizing that its conclusion is potentially 

“contrary to prior precedent of this court” and identifying one affected case, United States v. 

Garcia–Arellano, 522 F.3d 477 (5th Cir. 2008). See 832 F.3d at 574–57 & n.27. Accordingly, 

Mathis’s impact on our precedents was not settled by that case.

 Case: 15-11078 Document: 00513840322 Page: 4 Date Filed: 01/18/2017
No. 15-11078

5

manufacture, delivery, and possession with intent to deliver merely set forth 

three ways to commit one crime rather than three separate crimes. 

To reconcile Gonzales, Ford explained that the “significant distinction” 

was that defendant Jason Jermaine Ford been convicted “for possession with 

the intent to deliver rather than just delivery or transportation.” Ford, 509 

F.3d at 717. In other words, possession with intent to deliver and actual (or 

mere) delivery are two separate crimes—one that qualifies as a controlled 

substance offense, one that does not. We have subsequently recognized and 

maintained this line drawn in Ford. See Vasquez-Martinez v. Holder, 564 F.3d 

712, 718–19 (5th Cir. 2009). And, prior to Mathis, Section 481.112(a)’s status 

as a divisible statute subject to a modified categorical approach was firmly 

established. See, e.g., United States v. Garcia-Arellano, 522 F.3d 477, 480 (5th 

Cir. 2008).

The government contends that Ford does not utilize the modified 

categorical approach, but the court in Ford looked at the defendant’s 

indictment to determine that he had been convicted of possession with intent 

to deliver a controlled substance rather than “just” delivery of a controlled 

substance. 509 F.3d at 717. This is the modified categorical approach. In 

Mathis, the Supreme Court clarified when this approach is proper: where a 

single statute lists elements in the alternative, and thereby defines multiple 

crimes. 136 S.Ct. at 2249. Because Ford concludes that Section 481.112(a) 

contained distinct criminal offenses, it complies with this aspect of Mathis.

Accordingly, if the Supreme Court had merely resolved the circuit split on 

when the modified categorical approach is proper, we would be unable to say 

that it unequivocally abrogated Ford. 

The Supreme Court went further though, and also instructed courts on 

how to identify truly divisible statutes. Mathis explains that, in “easy” cases, 

a state court decision directly provides an answer. Id. at 2256. Thus, “[i]n 

 Case: 15-11078 Document: 00513840322 Page: 5 Date Filed: 01/18/2017
No. 15-11078

6

light of Mathis, we know that we must determine whether ‘listed items’ in a 

state statute ‘are elements or means,’ and if ‘a state court decision definitively 

answers the question’ our inquiry is at an end.” Howell, 838 F.3d at 498.

Mathis, which dealt with an Iowa burglary statute, was an easy case:

The listed premises in Iowa’s burglary law, the State Supreme 

Court held, are “alternative method[s]” of committing one offense, 

so that a jury need not agree whether the burgled location was a 

building, other structure, or vehicle. [State v. Duncan, 312 N.W.2d 

519, 523 (Iowa 1981).] When a ruling of that kind exists, a 

sentencing judge need only follow what it says.

Mathis, 136 S.Ct. at 2256.

Here, too, a state court decision settles the question. In Lopez v. State, 

Texas’ highest criminal court was “asked to decide whether a person’s offer to 

sell three kilos of cocaine in the morning and his possession of cocaine with the 

intent to deliver it to complete that same sale in the evening constitutes one 

offense or two.” 108 S.W.3d 293, 294 (Tex. Crim. App. 2003). Thus, the case 

was specifically about whether delivery (an offer to sell a controlled substance 

amounts to delivery under Texas law, see Tex. Health & Safety Code 

§ 481.002(8)) and possession with intent to deliver were separate offenses. The 

court held that “Section 481.112 provides several different means for 

committing the offense of delivery of a single quantity of drugs so that, no 

matter where along the line of actual delivery—from the offer to sell, to the 

possession of the drugs with the intent to deliver them, to the actual delivery 

itself—the drug dealer may be held accountable for the gravamen of the 

offense—the distribution of dangerous drugs in our society.” Id. at 299–300

(emphasis added). The means or elements question has been directly answered 

by the Texas court.

Mathis is “more than merely illuminating with respect to the case before 

us;” it unequivocally resolves the question in favor of Tanksley. See In re Texas 

Grand Prairie Hotel Realty, L.L.C., 710 F.3d 324, 331 (5th Cir. 2013) (quoting 

 Case: 15-11078 Document: 00513840322 Page: 6 Date Filed: 01/18/2017
No. 15-11078

7

Reed v. Fla. Metro. Univ., Inc., 681 F.3d 630, 648 (5th Cir. 2012)). Ford cannot 

stand. Section 481.112(a) is an indivisible statute to which the modified 

categorical approach does not apply. 

We note that Hinkle reached essentially the same result for the same 

reasons. See 832 F.3d at 574–76. The government does not dispute Hinkle, 

instead describing it as “merely a straightforward application of Mathis.” (Gov. 

Supp. Br. at 11.) We agree with this characterization. However, the 

government’s only plausible line of argument was that, under the rule of 

orderliness, Hinkle must be disregarded to the extent it is incompatible with 

Ford. This is because, contrary to the government’s position, Section 

481.112(a) cannot be divisible if violated by mere delivery and indivisible if 

violated by possession with intent to deliver. Under such a reading, courts 

would be required to undertake a modified categorical approach analysis 

simply to determine if the modified categorical approach is proper. The legal 

physics at play simply will not be permit a single statute to be both divisible 

and indivisible. Hinkle’s holding that Section 481.112 is divisible was 

vulnerable to challenge only under the rule of orderliness, and we now reject 

that challenge.

Because the modified categorical approach is inappropriate in this case, 

we cannot use it to “narrow” Tanksley’s conviction to “possession with intent 

to deliver” a controlled substance. See Howell, 838 F.3d at 499. We instead

look to Section 481.112(a) as a whole in determining whether his conviction 

thereunder qualifies as a controlled substance offense under the Guidelines. 

Section 481.112(a) “criminalizes a ‘greater swath of conduct than the elements 

of the relevant [Guidelines] offense.’” Hinkle, 832 F.3d at 576 (quoting Mathis, 

136 S.Ct. at 2251). Tanksley’s conviction under that statute does not qualify 

as a controlled substance offense under the Guidelines. Id.

 Case: 15-11078 Document: 00513840322 Page: 7 Date Filed: 01/18/2017
No. 15-11078

8

III.

The government contends that any error was harmless. “[T]he harmless 

error doctrine applies only if the proponent of the sentence convincingly 

demonstrates both (1) that the district court would have imposed the same 

sentence had it not made the error, and (2) that it would have done so for the 

same reasons it gave at the prior sentencing.” United States v. Ibarra-Luna, 

628 F.3d 712, 714 (5th Cir. 2010). 

Here, the district court stated that “[e]ven if the guideline calculations 

are not correct, this is the sentence the Court would otherwise impose under 

18 U.S.C. § 3553.” Similar statements have been sufficient to establish 

harmless error in other cases. See United States v. Richardson, 713 F.3d 232, 

237 (5th Cir. 2013); United States v. Garcia, 647 F. App’x 408, 410 (5th Cir. 

2016). Nonetheless, it is not enough for the district court to say the same 

sentence would have been imposed but for the error. See United States v. 

Bazemore, 608 F. App’x 207, 216 (5th Cir. 2015). “The government must point 

to evidence in the record that convincingly demonstrates the district court 

would impose the same sentence for the same reasons.” United States v. 

Hernandez–Montes, 831 F.3d 284, 296 (5th Cir. 2016) 

In this case, our review of the record does not convince us that the withinGuidelines sentence imposed by the district court had nothing to do with the 

Guidelines calculation. See id. at 295 (To establish harmless error, “the 

government ‘must show that the [sentence] the district court imposed was not 

influenced in any way by the erroneous Guideline calculation.’” (quoting 

United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)). At the sentencing 

hearing, the district court overruled Tanksley’s objection to the Guidelines, 

§ 4B1.1 enhancement, expressly adopted the probation officer’s Guidelines 

calculation, and pointed out that the sentence was at “the bottom of the 

guidelines.” The district court’s Statement of Reasons indicates Tanksley was 

 Case: 15-11078 Document: 00513840322 Page: 8 Date Filed: 01/18/2017
No. 15-11078

9

not sentenced “outside the advisory guideline system” and that “the Court 

considered the advisory guidelines.” We cannot say “with the requisite 

certainty” that the error was harmless. See Ibarra-Luna, 628 F.3d at 719.

IV.

Tanksley’s unopposed motion for leave to file a reply brief is GRANTED. 

Tanksley’s sentence is VACATED, and we REMAND for resentencing.

 Case: 15-11078 Document: 00513840322 Page: 9 Date Filed: 01/18/2017