United States Court of Appeals

for the Fifth Circuit

No. 17-11079

United States of America, 

Plaintiff—Appellant,

versus

Glnyzo Clark, 

Defendant—Appellee.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:16-CR-109-1

Before Jones, Ho, and Wilson, Circuit Judges.

Per Curiam:

Glnyzo Clark pleaded guilty to being a felon in possession of a firearm 

in violation of 18 U.S.C. § 922(g)(1). This offense typically carries a 

maximum penalty of ten years’ incarceration. The presentence report 

(PSR), however, recommended sentencing Clark pursuant to the Armed 

Criminal Career Act (ACCA), which would increase Clark’s penalty to a 

minimum of fifteen years’ incarceration. The district court declined to do 

so—finding that Clark’s prior convictions fail to satisfy the requirements of 

the ACCA. We disagree. We thus vacate Clark’s sentence and remand for 

resentencing. 

United States Court of Appeals

Fifth Circuit

FILED

September 14, 2022

Lyle W. Cayce

Clerk
No. 17-11079

2 

I.

A defendant may be sentenced under the ACCA if he or she has at 

least three prior convictions that each qualify as a “violent felony” or 

“serious drug offense.” 18 U.S.C. § 924(e)(1). In relevant part, a “serious 

drug offense” is one “involving manufacturing, distributing, or possessing 

with intent to manufacture or distribute, a controlled substance . . . for which 

a maximum term of imprisonment of ten years or more is prescribed by law.” 

Id. § 924(e)(2)(A)(ii). And a “violent felony” is “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.” Id. § 924(e)(2)(B)–(B)(i). 

Four of Clark’s prior convictions are relevant on appeal: (1) 

aggravated assault by threat of bodily injury (case no. F-0720695); (2) 

aggravated assault by causing bodily injury (case no. F-0624885); (3) burglary 

of a habitation (case No. F-0673371); and (4) possession with intent to 

distribute a controlled substance (case no. F-0673218). 

“This court reviews whether a prior conviction qualifies as an ACCA 

predicate de novo.” United States v. Prentice, 956 F.3d 295, 298 (5th Cir.),

cert. denied, 141 S. Ct. 920 (2020). 

We consider each prior conviction in turn. 

II. 

Aggravated Assault. 

We consider two of Clark’s prior convictions for aggravated assault 

and find that one of them qualifies as a predicate under the ACCA. 

Let’s begin with aggravated assault by threat of bodily injury. Under 

Texas Penal Code § 22.01(a)(2), this offense can only be committed 

intentionally or knowingly. We have held that intentionally or knowingly 
No. 17-11079

3 

threatening another with imminent bodily injury is a “crime of violence” 

under 18 U.S.C. § 16(a). See, e.g., United States v. Torres, 923 F.3d 420, 426 

(5th Cir. 2019). And “we construe the elements clauses of section 16 and the 

ACCA congruently.” United States v. Griffin, 946 F.3d 759, 762 n.2 (5th Cir. 

2020). Accordingly, Clark’s conviction for aggravated assault by threat of 

bodily injury necessarily constitutes a violent felony under the ACCA. See

United States v. Guzman, 797 F.3d 346, 348 (5th Cir. 2015) (finding no plain 

error where the district court found the same). 

But aggravated assault by bodily injury does not qualify. This offense 

can be committed with a mens rea of recklessness. See Tex. Penal Code

§ 22.01(a)(1). And as the Supreme Court held in Borden v. United States, 

“[o]ffenses with a mens rea of recklessness do not qualify as violent felonies 

under [the] ACCA.” 141 S. Ct. 1817, 1834 (2021). 

So for Clark to be sentenced under the ACCA, his convictions for 

burglary and possession with intent to distribute must both qualify as 

predicates. 18 U.S.C. § 924(e)(1). 

III. 

Burglary of a Habitation. 

The ACCA’s definition of “violent felony” explicitly includes generic 

burglary. 18 U.S.C. § 924(e)(2)(B)(ii). But Texas Penal Code § 30.02(a) 

contains three subsections by which a defendant can commit burglary in 

Texas. At the time of Clark’s sentencing, our court had held that only a 

violation of § 30.02(a)(1) constitutes generic burglary under the ACCA. See 

United States v. Herrold (Herrold I), 813 F.3d 595, 598–99 (5th Cir.), vacated,

137 S. Ct. 310 (2016). Because Clark’s charging documents were ambiguous 

asto which provision he was convicted under, the government conceded, and 

the district court held, that his burglary conviction could not serve as an 

ACCA predicate. 
No. 17-11079

4 

Then several years later, during the pendency of this appeal, our court

vacated Herrold I. We determined that § 30.02(a) constitutes generic 

burglary in its entirety, and thus any § 30.02(a) conviction qualifies as a 

predicate under the ACCA. United States v. Herrold (Herrold II), 941 F.3d 

173, 182 (5th Cir. 2019). 

Clark nonetheless maintains that the government should be precluded 

from relying on Herrold II. He argues the government waived or invited any 

error in the district court related to his burglary conviction by conceding at 

the time of sentencing that the conviction did not qualify as a predicate 

offense. This argument fails. 

Invited error is a variety of waiver that “generally evince[s] an intent 

by the speaker to convince the district court to do something that it would 

not otherwise have done.” United States v. Lerma, 877 F.3d 628, 632 (5th 

Cir. 2017) (cleaned up). The government’s statement amounted to no more 

than an acknowledgement of the state of the law as it existed at the time. It 

was neither designed to, nor had the effect of, “convinc[ing] the district court 

to do something” it would not have already been dutybound to do. Id. 

And because we are not bound by the government’s concession, see,

e.g., United States v. Shelton, 325 F.3d 553, 560 & n.10 (5th Cir. 2003), our 

holding in Herrold II resolves this issue: Clark’s prior conviction for burglary 

of a habitation qualifies as a predicate under the ACCA. 

IV. 

Possession with Intent to Distribute a Controlled Substance. 

Clark was convicted under Texas Health and Safety Code § 

481.112(a), which maintains that “a person commits an offense if [he]

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

controlled substance.” 
No. 17-11079

5 

In United States v. Vickers, we held that the § 481.112 offense 

constitutes a “serious drug offense” under the ACCA. 540 F.3d 356, 366 

(5th Cir. 2008). The district court claims that ruling was abrogated by our 

subsequent holding that a § 481.112 conviction “does not qualify as a 

controlled substance offense under the [Sentencing] Guidelines.” United 

States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented, 854 F.3d 284 

(5th Cir. 2017). 

But that is not so. For one thing, absent an intervening change in the 

law, “one panel of our court may not overturn another panel’s decision.” 

Mercado v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016). For another, the 

definition of a “controlled substance offense” under the Sentencing 

Guidelines—as addressed in Tanksley—differs from that of a “serious drug 

offense” under the ACCA—as addressed in Vickers and at issue here. Our 

court acknowledged this critical distinction in Vickers itself, explaining that 

“an offense could be found to satisfy the ACCA requirements, while the 

same offense would not be sufficient to trigger an enhancement under the 

Sentencing Guidelines.” Vickers, 540 F.3d at 366 n.3. And, what’s more, 

our court has expressly reaffirmed the holding in Vickers following the

Tanksley decision. See Prentice, 956 F.3d at 299–300. 

Clark also argues that, even if Tanksley did not effectively overrule 

Vickers, a recent Supreme Court decision did. In Shular v. United States, the

Supreme Court defined “involving” in the ACCA to mean “necessarily 

requir[ing].” 140 S. Ct. 779, 785 (2020). See also Prentice, 956 F.3d at 299 

(“We may assume that Shular defined ‘involving’ in the ACCA to mean 

‘necessarily requiring.’”). 

This is indeed a far narrower definition than the “exceedingly broad” 

one applied by our court in Vickers. 540 F.3d at 365 (defining “involving” to 

mean “related to or connected with”) (quotations omitted). But our court 
No. 17-11079

6 

has expressly rejected Clark’s argument that Shular consequently abrogated 

Vickers’s holding. See Prentice, 956 F.3d at 300. In Prentice, we described how 

Shular did more than narrow the definition of “involving”—it also

“broadens the understanding of ‘a serious drug offense’ by focusing on the 

underlying conduct.” Id. So while “[t]he precise reasoning of Vickers, i.e., its 

interpretation of ‘involving,’ differs from that of Shular and seems at odds 

with Shular’s focus on the underlying conduct charged in state offenses. . . . 

there is no doubt that the ACCA sentence upheld in Vickers would also be 

affirmed under Shular.” Id. 

Clark attempts to distinguish Prentice on the ground that he challenges 

the delivery prong of the Texas statute, whereas the Prentice court analyzed

the possession-with-intent prong. He claims that the least culpable way to 

violate the delivery prong is by making a fraudulent offer to sell a controlled 

substance. In support, he points to some of our reasoning in Vickers: “The 

intentional offer to sell a controlled substance is the crime; the accused need 

not have any drugs to sell or even intend ever to obtain the drugs he is 

purporting to sell.” Vickers, 540 F.3d at 365. 
No. 17-11079

7 

But our court recently considered, and rejected, Clark’s theory of 

delivery whereby § 481.112 could potentially be violated by a fraudulent offer 

to sell. Ochoa-Salgado v. Garland, 5 F.4th 615, 620–21 (5th Cir. 2021). 

“Although Texas courts have sometimes used inconsistent language about 

the mens rea necessary to violate § 481.112, Texas appellate courts 

consistently conclude that, if a person offers to sell, with no intent to sell 

narcotics, but instead the intent to defraud the buyer of his money, that 

conduct is not a delivery of controlled substance by offer to sell.” Id.(cleaned 

up). Instead, as we explained, “§ 481.112 requires an intent to sell, which 

mirrors the requisite mens rea under the [Controlled Substances Act], namely 

intent to distribute.” Id. at 621.

Applying our holdings in Vickers and Ochoa-Salgado to the present

case, we find that Clark’s prior conviction for possession with intent to 

distribute also qualifies as a predicate offense under the ACCA. 

* * *

Because we find that three of Clark’s prior convictions qualify as 

predicate offenses under the ACCA, we vacate Clark’s sentence and remand 

for resentencing.