United States Court of Appeals 

for the Fifth Circuit 

No. 20-10992 

Summary Calendar 

United States of America, 

Plaintiff—Appellee, 

versus

Modesto Balderas, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 3:19-CR-66 

ON REMAND FROM 

THE SUPREME COURT OF THE UNITED STATES 

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Modesto Balderas pleaded guilty to possession of a firearm by a felon, 

18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial 

*

 Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 22, 2022 

Lyle W. Cayce 

Clerk 

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No. 20-10992 

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number, 18 U.S.C. § 922(k). After concluding that Balderas was subject to 

enhanced penalties, including a 15-year mandatory minimum sentence, 

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), 

the district court sentenced him to 186 months of imprisonment. On appeal, 

Balderas challenged the characterization of two of three prior convictions as 

violent felonies for purposes of the enhanced penalties of the ACCA. 

§ 924(e). We granted the Government’s motion for summary affirmance 

following Balderas’s concession that his arguments were foreclosed by this 

court’s prior decisions. Balderas petitioned the United States Supreme 

Court for a writ of certiorari. 

While his petition was pending, the Supreme Court decided that a 

crime capable of commission with “a less culpable mental state than purpose 

or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” 

under § 924(e)(2)(B) of the ACCA. Borden v. United States, 141 S. Ct. 1817, 

1821–22, 1825, quotations at 1821-22 (2021) (plurality opinion); id. at 1835. 

After Borden, the Court granted Balderas’s petition, vacated our judgment, 

and remanded “for further consideration in light of Borden.” Balderas v. 

United States, 142 S. Ct. 860, 860 (2022). 

The ACCA provides for enhanced penalties for defendants who have 

three prior convictions for “a violent felony or a serious drug offense, or 

both.” § 924(e)(1). The statute defines a “violent felony” as including “any 

crime punishable by imprisonment for a term exceeding one year” that “has 

as an element the use, attempted use, or threatened use of physical force 

against the person of another.” § 924(e)(2)(B). We review Balderas’s 

preserved challenges to the application of § 924(e) de novo. See United States 

v. Flores, 922 F.3d 681, 683 (5th Cir. 2019). 

Post-Borden, the question is whether Balderas’s prior Texas 

convictions of simple robbery and of aggravated assault constitute violent 

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felonies. See § 924(e)(2)(B). We recently decided that Texas simple robbery, 

is divisible into robbery-by-injury, which may be committed recklessly, and 

robbery-by-threat, which may only be committed “intentionally and 

knowingly.” United States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) 

(quoting Tex. Penal Code Ann. § 29.02(a)). Robbery-by-injury no 

longer qualifies as a violent felony post-Borden. See Garrett, 24 F.4th at 487-

91. Because robbery-by-threat may only be committed with an intentional 

and knowing mens rea, however, a conviction under § 29.02(a)(2) qualifies 

as a violent felony under the ACCA post-Borden. Id. at 491. 

The only information in the record concerning Balderas’s prior 

convictions is the presentence report’s characterization of the offenses which 

do not indicate the subsection of conviction. Without that information, we 

cannot determine whether the simple robbery conviction qualifies as a violent 

felony under the ACCA post-Borden. We therefore vacate and remand this 

matter for resentencing in light of Borden and Garrett. See United States v. 

Bonilla-Mungia, 422 F.3d 316, 321 (5th Cir.2005). On remand, the district 

court should permit the government to supplement the record with 

appropriate documents that may establish the applicable elements of 

Balderas’s prior offense. See id. Because we vacate and remand Balderas’s 

entire sentence, we need not reach his challenge to the characterization of his 

prior Texas aggravated assault conviction as a violent felony under the 

ACCA. 

VACATE AND REMAND. 

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