# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 11169

**United States of America,**
Plaintiff

— Appellee **,**

versus **Devoris Lamont Jackson,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18

- C R

- 637

Before **Smith, Costa,** and **Wilson,** Circuit Judges

**. Gregg Costa,**  Circuit Judge **:** When Devoris Jackson unlawfully possessed a firearm, our precedent did not treat his burglary convictions as violent felonies that could enhance his sentence under the Armed Career Criminal Act (ACCA) . B ut b y the time he was sentenced for the gun c rime , the Supreme Court had rejected our view

. T he district court thus counted Jackson’s burglary convictions as violent felonies . The principal issue on appeal is whether using the new precedent to enhance Jackson’s sentence violated due process. United States Court of Appeals Fifth Circuit 

### FILED March 30, 2022 Lyle W. Cayce Clerk Case: 20-11169 Document: 00516260451 Page: 1 Date Filed: 03/30/2022No. 20

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2 I
It is unlawful for felons to possess a firearm. 18 U.S.C. § 922(g)(1). Felon

- in

- possession convictions typically carry a maximum ten

- year penalty.
18 U.S.C. § 924(a)(2). But the ACCA increases the penalty to a fifteen

- year minimum if the defendant “has three previous convictions

. . . for a violent felony

. ” Id . § 924(e)(1). A “violent felony” is any crime punishable by more than one year in prison that “ (i) has as an element the use, attempted use, or threatened use of physical force aga inst the person of another; or (ii) is burglary, arson, or extortion, [or] involves the use of explosives.” Id

. § 924(e)( 2 ) (B)

. The district court applied the ACCA at Jackson’s sentencing

— imposing the minimum sentence of fifteen years

— after he pled guilty to possessing a firearm as a felon

. The court treated Jackson’s Texas aggravated robbery conviction and two Texas burglary

- of

- a
- habitation convictions as the violent felonies compelling the enhanced sentence.

II As he did in the district court, Jac kson concedes that his Texas burglary

- of

- a
- habitation convictions qualify as violent felonies under current precedent. 1 See United States v. Herrold ( Herrold II ), 941 F.3d 173, 177, 182 (5th Cir. 2019) (en banc), cert. denied , 141 S. Ct. 273 (2020). Jac kson argues, however, that the Due Process Clause required the district court to instead apply our precedent as it existed when he committed the gun crime in August
2018.

1 He challenges that caselaw only to preserve an attempt to seek its reversal in the Supreme Court. Case: 20-11169 Document: 00516260451 Page: 2 Date Filed: 03/30/2022No. 20

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3 Understanding Jackson’s claim requires a brief history of our changing precedent on w hether Texas burglary of a habitation is a n ACCA predicate

. When Congress named “burglary” a violent felony, it “had in mind a modern ‘generic’ view ” of the crime. Taylor v. United States , 495 U.S. 575, 589 (1990). Generic burglary is the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id . at 599. Shortly before Jackson was caught in possession of the firearm, we held that Texas burglary of a habitati o n was broader than gener ic burglary because it reached defendants who formed in t ent to commit a crime after en tering the building

. United States v. Herrold (Herrold I) , 883 F.3d 517 , 532

– 36 (5th Cir. 2018) (en banc), vacated , 139 S. Ct. 2712 (2019). That precedent was short

liv ed. The following year, the Supreme Court resolved a circuit sp l it and held that generic burglary occurs regardless of when intent is formed

. Quarles v. United States , 139 S. Ct. 1872 , 1 8 75 (2019). Because we were on the wrong side of the split, the Supreme Court returned Herrold to us. 139 S. Ct. 2712 (2019) . Bound by stare decisis , we then held that Texas burglary of a habitation is generic burglary and thus is a violent felony

. Herrold II , 94 1 F.3d

at 177, 182. Herrold II was on the books when Jackson was sentenced. Jackson contends that it was unconstitutional for the district court to

a pply the law as it existed when he was sentenced rather than when he committed the crime

. He relies on th e due process principle that guarantees notice of what conduct is criminal and the punishment that attaches to each crime

. See Johnson v. United States , 576 U.S. 591, 595

– 96 (2015). One corollary of that notice requirement is a bar on the retroactive application of a judicial interpretation of a criminal law when the decision is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.” Bouie v. City of Columbia , 378 U.S. 347, 354 (1964). The “unexpected and indefensible” qualifier recognizes that most judicial decisions apply retroactively. A fter all, a n outright prohibition on Case: 20-11169 Document: 00516260451 Page: 3 Date Filed: 03/30/2022No. 20

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4 retroactive application “would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system.” Rogers v. Tennessee , 532 U.S. 451, 461 (2001). What makes a judicial ruling “unexpected and inde fensible”? T he Civil Rights Era case that gave rise to this an ti retroactivity doctrine is illustrative

. In Bouie v. City of Columbia , the Supreme Court invalidated convictions of two African

- American college students who were arrested for

‘ sitting in ’ at a whites

- only lunch counter

. 378 U.S. at 348

– 49. The students had been charged under South Carolina’s criminal trespass stat ut e, which prohibited “ entry ” onto another’s property “after notice prohibiting [ the ] same.” Id. at 349 n.1 . South Carolina courts had long read the statute to require pre
- entry notic e
. Id . at 356. T he state supreme court nonetheless affirmed the students’ convictions, holding that th e law also criminalized remaining on another’s property after being asked to leave

. Id . at 350

. T hat novel reading of the statute could not be applied retroactively, the Supreme Court of the United States held, because the state’s preexisting law did not suggest that the students might be jailed for “sit[ting] quietly” in the

restaurant. See id. at 348.
T he h allmarks of the Bouie si tuation when a law cannot apply retroactively include stark divergence from the statutory text, departure from prior caselaw, inconsistency with the expectations of the legislature and law enforcement, and the criminalization of otherwise innocent conduct. Bouie , 378 U.S. at 355

– 56, 361

– 63. 2 Those hallmarks are absent here.

2 Only one other time has t he Supreme Court found a Bouie violation. Marks v. United States , 430 U.S. 188 (1977)

— a decision better known for trying to explain which of many separate opinions in a decision is controlling, see id. at 192

– 94

— barr ed the retroactive application of the obscenity definition announced in Miller v. California , 413 U.S. 15 (1973 ). Case: 20-11169 Document: 00516260451 Page: 4 Date Filed: 03/30/2022No. 20

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5 First and foremost , classifying Texas burglary of a habitation as a violent felony is not “clearly at variance” with the ACCA’s text. See Bouie , 378 U.S. at 356. The ACCA defines “violent felony” to include “burglary .” 18 U.S.C. § 924(e)(2)(B)(ii). Judges can debate whether this generic reference to “burglary” includes a burglary law that allows intent to be formed after entry , but a layperson reading the law would likel y expect Texas burglary to be an ACCA predicate

. C ontrast Bouie , 378 U.S. at 355

– 56 ( holding that extending South Carolina’s trespassing statute to remaining on another’s property after being asked to leave was inconsistent with the law’s text barring only “entry” upon another’s property). Treating Texas burglary as a violent felony did not read into the statute “an intention which the [ACCA’s] words themselves did not suggest

. ” See i d. at 362 (quoting United States v. Wiltberger , 18 U.S . ( 5 Wheat. ) 76, 86 (1820) (Marshall, C. J.)).

Nor was c ounting Jackson’s burglary convictions as violent felonies “unexpected” in light of precedent

. In fact, Herrold I ’s fleeting holding

— that Texas burglary of a habitation was not generic burglary

— depart ed from a quarter century of Fifth Circuit caselaw. Compare Herrold I , 883 F.3d at 5 17 , with United States v. Silva , 957 F.2d 157, 162 (5th Cir. 1992) ; United States v. Constante , 544 F.3d 584, 586

– 8 7 (5th Cir. 2008 ) ; and United States v. Uribe , 838 F.3d 667, 671 (5th Cir. 2016 ) (all considering Texas burglary of a habitation an ACCA predicate). Herrold I was a closely divided (8

- 7) en banc decision. And it clashed with other c ircuits ’ view that generic burglary includes burglar ies with post

- entry intent

. See United States v. Bonilla , 687

Mill er, which ask ed whether the materials lack “serious literary, artistic, political, or scientific value , ” punished conduct innocent under the prior “utterly without redeeming social value” test. Marks , 430 U.S. at 194. In the 45 years since Marks , t he Sup reme Court thrice has rejected Bouie claims. See **Brian R. Means, Postconviction Remedies**  § 41:2 (2021) ( reviewing those decisions and generally noting the narrowness of the doctrine). Case: 20-11169 Document: 00516260451 Page: 5 Date Filed: 03/30/2022No. 20

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6 F.3d 188, 193

– 94 (4th Cir. 2012) (finding Texas burglary generic and thus a “violent felony” under the ACCA) ; see also United States v. Priddy , 808 F.3d 676, 684 (6th Cir. 2015) (deeming Tennes see’s similar burglary statute generic). That circuit split created a reasonable likelihood that the Supreme Court would resolve the disagreement . It soon did so. Quarles , 139 S. Ct. at 1872; Herrold , 139 S. Ct. at 2712 (vacat ing Herrold I and remanding for reconsideration in light of Quarles ).
Th at the Supreme Court ’ s resolution of a circuit split prompted the ruling Jackson calls “unexpected and indefensible” reveals bigger problems with his argument

. It is difficult to see how a high cou rt decision overruling an intermediate one could be an unforeseeable change in law ; our decisions are always subject to Supreme Court review

. And it is not even clear that applying Herrold II to Jackson was in any way retroactive because it was a later phase of the very case he says should control

. At a minimum , it is not reasonable to treat a divided decision of an intermediate court like ours as providing the unalterable notice that Bouie co ntemplates. Contrast Bouie , 378 U.S. at 356

– 57 (noting that the Supreme Court of South Carolina’s ruling upholding the trespass prosecution for the sit

- in went against almost a hundred years of the state high court ’s having “uniformly emphasized the notic e
- before

- entry requirement”). Finding a retroactivity problem when a high court overrules a lower

one woul d undermine vertical precedent. I t would mean that anytime the Supreme Court resolve s a circuit split on the interpretation of a criminal statute in favor of the government, the high court’s decision could not be applied to pending prosecutions in the circuit that had taken the pro

defendant position (it could not apply even to the Supreme Court defendant if the decision reversed circuit precedent that predated the defendant’s crime)

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7 We are not aware of any case ever so holding despite this being a

common occurrence
. Consider a Supreme Court decision from just a few
years before Quarles

. Voisine v. United States , 579 U.S. 686 (2016), li kewise resolved a circuit split in favor of the government, holding that reckless domestic assault counts as a “misdemeanor crime of domestic violence” that prevents one from possessing a gun

. At least two circuits (including ours) that had pre
- Voisine ca selaw requiring a mens rea higher than recklessness for similarly

- worded provisions appli ed the Supreme Court’s reasoning to case s already in the pipeline when Voisine issued. See United States v. Burris ( Burris I

), 920 F.3d 942, 952

– 53 (5th Cir. 2019), vacated on other grounds , 141 S. Ct. 2781 (2021) ; United States v. Pam , 867 F.3d 1191, 1207

– 08 (10th Cir. 2017). 3 The contrary idea

— that due process prevents us from applying Supreme Court caselaw that overrides e arlier circuit precedent to already

- pending

cases

— would deprive the Supreme Court of its final say

. What we have said so far is enough to doom Jackson’s due process claim. We also note that Quarles did not “make previously innocent conduct criminal.” See Proctor v. Cockrell , 283 F.3d 726, 732 (5th Cir. 2002). Possessing a firearm with a prior felony conviction was a federal crime long before Jackson’s offense. See 18 U.S.C. § 922(g)(1); c ontrast Marks , 430 U.S.

at 191 (finding a due process violation because new definition of obscenity criminalized acts that were legal at the time of the challenged conduct ).

N one of the features of the egregious state court decision that led Bouie to find a due process violation exist here. An d o ur court has never

3 These cases’ view that Voisine ’s holding about mens rea also governed the ACCA’s definition of “violent felony” requiring the “use . . . of physical force” was later rejected by the Supreme Court. See Borden v. United States , 141 S. Ct. 1817, 1825 (2021) (holding that a crime requiring only a mens rea of recklessness does not qualify as a “violent felony” under ACCA’s element clause). Our point, however, is that neither Burris nor Pam saw a problem with applying Voisine to crimes that occurred before Voisine issued. Case: 20-11169 Document: 00516260451 Page: 7 Date Filed: 03/30/2022No. 20

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8 recognized a Bouie violation. See United States v. Kay , 513 F.3d 432 , 441

– 46 (5th Cir. 2007); United States v. Martinez , 496 F.3d 387 , 389

– 90 (5th Cir. 2007) (both rejecting Bouie claims). Nor have we seen a case from any court holding that the Supreme Court’s abrogation of circuit precedent cannot be applied to conduct occurring before the high court ruled. This case should not be the pioneer in either of those categories. It was neither “unexpected ” nor “indefensible” when the Supreme Court abrogated an 8

- 7 decision of our en banc court, siding with circuits that had held generic burglary did not require intent to commit a crime contemporaneous with entry into the building. Applying that same inter pretation of the law to crimes occurring in this circuit during the brief interregnum between Herrold I and Quarles was neither unexpected nor indefensible. It did not violate due process to count Jackson’s burglary convictions

as violent felonies

. III The district court thus properly sentenced Jackson as an armed career criminal if his Texas aggravate d robbery conviction is a third violent felony. Th is conviction qualifies under the ACCA’s elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i)

. On this issue , Jackson is aided rather than hindered by a recent Supreme Court decision that abrogated some of our caselaw

. A crime falls within the elements clause only if it requires the defendant to act with purpose or knowledge

. Borden , 141 S. Ct. at 18 34 (“ Offenses with a mens

rea of recklessness do not qualify as violent felonies under ACCA

. . . [ because ] [t] h ey do not require . . . the active employment of force against another person

. ”) ; see United States v. Greer , 20 F.4th 1071, 1076 (5th Cir. 2021) (recognizing Borden as an intervening change in the law abrogating our Case: 20-11169 Document: 00516260451 Page: 8 Date Filed: 03/30/2022No. 20

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9 inconsistent precedent) . Jackson point s out that one predicate for Texas aggravated robbery

— robbery

- by

- injury , see **Tex. Penal Code** § 29.02(a)( 1 )

— allows conviction based on mere recklessness. United States v. Garrett , 24 F.4th 485, 48 8

– 8 9 (5th Cir. 2022). It follows under the categorical approach, he contends, that no Texas aggravated robbery conviction is a volent felony. Normally Jackson might have a point; courts usually look at the elements of the entire statute to determine if all iterations of the crime have the required force element. Borden , 141 S. Ct. at 1822. But when a statute is divisible into multiple crimes, the court may look to “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.” Mathis v. United States , 136 S. Ct. 2243 , 2249 (2016)

. Those documents show that the predicate for Jackson’s aggravated robbery was robbery

- by

- threat, see **Tex. Penal Code** § 29.02(a)( 2 ) , which does require a mens rea higher than recklessness. 4 Garrett , 24 F.4th at 491 (holding that “ intentionally or knowingly threatening or placing another in fear of imminent bodily injury or death plainly constitutes the ‘threatened use of physical force’ un der the ACCA” ). Jackson’s reliance on the insufficient mens rea of robbery

- by

- injury thus depends on hi s showing that the Texas simple robbery statute is indivisible and must be viewed as a whole. But we recently reaffirmed that the robbery statu t e is div isible and creates two distinct crimes

. Garrett , 24

4 Jackson’s judicial confession and the corresponding indictment show that his predicate offense was robbery

- by

- threat. Both documents explain that Jackson “did . . . intentionally and knowingly threaten and place [the victim] in fear of imminent bodily injury and death.” These documents c losely track the language of the robbery

- by

- threat statute and do not mention the bodily injury required for a robbery

- by

- injury conviction. Case: 20-11169 Document: 00516260451 Page: 9 Date Filed: 03/30/2022No. 20

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10 F.4th at 489

– 90

. Because the modified categorical approach shows that Jackson was convicted of the qualifying predicate of robbery

- by

- threat, it does not matter that a different predicate is not conside red a violent felony.
Garrett addressed only a simple robbery conviction. But as common sense suggests, the fact that Jackson committed an aggravated robbery does not transform his violent felony into a nonviolent one. United States v. Powell , No. 18

- 11050, 2022 WL 413943, at *2 n.3 (5th Cir. 2022) (unpublished) (“[R]obbery

- by

- threat, whether simple or aggravated, is a violent felony under the ACCA.”)

. Aggravated robbery requires a simple robbery predicate plus an aggravating circumstance such as serious bodily injury, the use or exhibition of a deadly weapon, or a vulnerable victim. **Tex. Penal Code** § 29.0 3 (a)

. When the underlying robbery

— here robbery

- by

- threat

— has as an element “the use, attempted use, or threatened use of physical force agai nst the person of another,” the aggravating circumstance is irrelevant for ACCA purposes. To establish the underlying simple robbery, the state had to prove a crime that falls within the ACCA’s elements clause. Jackson’s aggravated robbery conviction is a lso a violent felony.

***

We **AFFIRM**

. Case: 20-11169 Document: 00516260451 Page: 10 Date Filed: 03/30/2022