IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10615

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JUAN CASTILLO-RIVERA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, 

SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, 

HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge, joined by JOLLY,

HIGGINBOTHAM, JONES, OWEN, ELROD, and HAYNES, Circuit Judges, 

in full; SOUTHWICK, Circuit Judge, joining in all except for footnote 1; 

HIGGINSON, Circuit Judge, joining in Part III.B only: 

Juan Castillo-Rivera was convicted of illegal reentry under 8 U.S.C. § 

1326. He received an 8-level enhancement of his sentence pursuant to U.S.S.G. 

§ 2L1.2(b)(1)(C), for being “previously . . . deported . . . after conviction for an 

aggravated felony.” The notes to Section 2L1.2 explain that, “[f]or purposes of 

subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in 8 

U.S.C. 1101(a)(43).” That section in turn lists numerous subsets of offenses 

United States Court of Appeals

Fifth Circuit

FILED

March 30, 2017

Lyle W. Cayce

Clerk

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2

that qualify as aggravated felonies, including any offense “described in” 18 

U.S.C. § 922(g)(1),” which is the federal felon in possession of a firearm statute. 

The Probation Office ultimately concluded in its Pre-Sentence Report 

(“PSR”) that the 8-level enhancement applied because Castillo-Rivera had been 

previously deported in 2013 after a state court conviction for Unlawful 

Possession of a Firearm by a Felon in violation of Texas Penal Code (“TPC”) § 

46.04. The district court accepted the PSR, and sentenced Castillo-Rivera 

pursuant to the 8-level enhancement. Castillo-Rivera appeals, arguing that 

TPC § 46.04 is substantively broader than 18 U.S.C. § 922(g)(1), and is 

therefore not an “aggravated felony” under the sentencing guidelines. We 

AFFIRM. 

I

Castillo-Rivera was born in Mexico, and came to the United States 

shortly after his birth. In 2009, he pleaded guilty in Texas state court to 

Unlawful Possession of Heroin, a state jail felony. Later that year, he again 

pleaded guilty in Texas state court, this time to Unauthorized Use of a Vehicle, 

also a state jail felony. In 2013, he pleaded guilty a third time in Texas state 

court, to Unlawful Possession of a Firearm by a Felon. He was deported to 

Mexico shortly thereafter. He reentered the United States illegally and was 

again arrested in Texas in 2014. This last arrest led to the illegal reentry 

charge and conviction at issue here.

After Castillo-Rivera pleaded guilty to illegal reentry, the Probation 

Office produced a PSR. The PSR noted that, because “the defendant was 

deported from the United States subsequent to a conviction for a felony offense, 

4 levels are added pursuant to USSG § 2L1.2(b)(1)(D).” The government filed 

a written objection, arguing that Castillo-Rivera’s conviction for Unlawful 

Possession of a Firearm by a Felon under TPC § 46.04 was “described in” 18 

U.S.C. § 922(g)(1), therefore “constitute[d] an aggravated felony” under 8 

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U.S.C. § 1101(a)(43), and thus triggered the “8-level enhancement pursuant to 

U.S.S.G. § 2L1.2(b)(1)(C).” The Probation Office agreed, and issued an 

addendum modifying the PSR to impose an 8-level enhancement instead of the 

4-level enhancement it initially recommended. Castillo-Rivera’s guidelines 

range increased from 24–30 months to 33–41 months as a result of the larger 

enhancement. Castillo-Rivera filed a written objection to the addendum. The 

district court overruled his objection, accepted the PSR with the addendum, 

and sentenced Castillo-Rivera to 34 months in prison.

Castillo-Rivera appealed his sentence to a panel of this court, arguing 

that TPC § 46.04 is a nongeneric statute because it is substantively broader 

than 18 U.S.C. § 922(g)(1), and therefore cannot be considered an aggravated 

felony for purposes of the sentencing guidelines. The panel concluded that this 

argument was foreclosed by a previous panel’s holding, explaining that, “[i]n 

Nieto Hernandez v. Holder, we squarely held that ‘TPC § 46.04(a) fits within 8 

U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony’” United States v. 

Castillo-Rivera, 836 F.3d 464, 464 (5th Cir. 2016) (quoting Nieto Hernandez v. 

Holder, 592 F.3d 681, 686 (5th Cir. 2009)). Because it concluded that it was 

bound by previous precedent, the panel did not address the merits of CastilloRivera’s statutory arguments. We granted rehearing en banc in order to do so.1

II

Section 2L1.2(b)(1)(C) of the Sentencing Guidelines states that, when a 

defendant is convicted of illegal reentry, “[i]f the defendant previously was 

deported, or unlawfully remained in the United States, after . . . a conviction 

for an aggravated felony,” the defendant’s Base Offense Level should “increase 

 

1 Upon granting Castillo-Rivera’s petition for rehearing en banc, we requested briefing 

regarding the proper application of this circuit’s rule of orderliness in cases where a party 

made an explicit concession before a prior panel that is dispositive in a future case. We do 

not reach this issue here, as it is not necessary to our disposition of Castillo-Rivera’s case on 

the merits. 

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by 8 levels.” The commentary on this section explains that “[f]or purposes of 

subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term 

in [8 U.S.C. § 1101(a)(43)].” U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43) 

provides a lengthy list of subsets of crimes that qualify as aggravated felonies. 

One such subset includes any “offense described in . . . section 922(g)(1) . . . 

relating to firearms offenses.” 8 U.S.C. 1101(a)(43)(E)(ii). 18 U.S.C. § 922(g)(1), 

the federal felon-in-possession statute, reads, 

[i]t shall be unlawful for any person . . . who has been convicted in 

any court of, a crime punishable by imprisonment for a term 

exceeding one year . . . to ship or transport in interstate or foreign 

commerce, or possess in or affecting commerce, any firearm or 

ammunition; or to receive any firearm or ammunition . . . which 

has been shipped or transported in interstate of foreign commerce.

Castillo-Rivera was convicted under TPC § 46.04, which is the Texas felon-inpossession counterpart to 18 U.S.C. § 922(g)(1). The Texas statute reads in 

relevant part, “[a] person who has been convicted of a felony commits an offense 

if he possesses a firearm.” Tex. Penal Code Ann. § 46.04(a) (West 2009). 

To determine whether Castillo-Rivera’s conviction under TPC §46.04 

qualifies as an “aggravated felony,” we apply a “categorical approach, under 

which we refer only to the statutory definition of the crime for which the 

[defendant] was convicted . . . and ask whether that legislatively-defined 

offense necessarily fits within [8 U.S.C. § 1101(a)(43)’s] definition of an 

aggravated felony.” Larin-Ulloa v. Gonzales, 462 F.3d 456, 463 (5th Cir. 2006). 

Here, that means asking whether the offense outlined in TPC § 46.04 is 

“described in” 18 U.S.C. § 922(g)(1). Castillo-Rivera argues that it is not, 

because the definitions of “felony” and “firearm” for purposes of the Texas 

statute are broader than their federal counterparts. We address each of these 

arguments in turn.

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III

A. Felony

For purposes of TPC § 46.04, “felony” is defined as any offense that “(1) 

is designated by a law of this state as a felony; (2) contains all the elements of 

an offense designated by a law of this state as a felony; or (3) is punishable by 

confinement for one year or more in a penitentiary.” Tex. Penal Code 

Ann. § 46.04(f) (West 2009). 18 U.S.C. § 922(g)(1), by contrast, makes the 

possession of a firearm unlawful for those convicted of “a crime punishable by 

imprisonment for a term exceeding one year.” Castillo-Rivera argues that the 

term “felony” as used in TPC § 46.04 is broader—i.e. includes more crimes—

than Section 922(g)(1). He contends, for example, that crimes that are 

punishable for exactly one year are considered felonies for purposes of TPC § 

46.04, but not for 18 U.S.C. § 922(g)(1). And, because the text of TPC § 46.04 

includes as felonies crimes that would not qualify under its federal 

counterpart, it cannot be “described in” section 922(g)(1).

But the comparison of generic federal statutes to allegedly nongeneric 

state counterparts is not an invitation to apply “legal imagination to a state 

statute’s language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). A 

defendant who argues that a state statute is nongeneric cannot simply rest on 

plausible interpretations of statutory text made in a vacuum. He must also 

show “a realistic probability, not a theoretical possibility, that the State would 

apply its statute to conduct that falls outside the generic definition of the 

crime.” Id. The Supreme Court has explained that establishing a realistic 

probability is not an exercise in educated guessing. Rather, “[t]o show [a] 

realistic probability, an offender, of course, may show that the statute was so 

applied in his case. But he must at least point to his own case or other cases in 

which the state courts in fact did apply the statute in the special (nongeneric) 

manner for which he argues.” Id. (emphases added); see also Moncrieffe v. 

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Holder, 133 S. Ct. 1678, 1693 (2013) (reiterating that defendants “have to 

demonstrate that the State actually prosecutes the relevant offense” in a 

nongeneric manner).

Thus, in order to prevail on his argument that the term “felony” as used 

in TPC § 46.04 includes crimes that would not be included under 18 U.S.C. § 

922(g)(1), Castillo-Rivera cannot simply point to certain crimes that may be 

included in one but not the other. He must also show that Texas courts have 

actually applied TPC § 46.04 in this way. He has failed to do so—indeed, he 

makes no attempt. Instead, he describes numerous crimes that could be 

considered felonies under the Texas statute but that are not felonies under 

federal law, even suggesting that “[t]here are probably too many” such offenses 

to list in his brief. It is telling that, despite these many evident opportunities, 

Castillo-Rivera does not point to any case in which Texas courts actually 

applied TPC § 46.04’s definition of felon to a defendant who could not also be 

covered by 18 U.S.C. § 922(g)(1). 

The dissent maintains that, because the Texas statute’s definition of 

felon is plainly broader than its federal counterpart, Castillo-Rivera is not 

required to point to an actual case in which Texas courts applied the Texas 

statute’s definition of felon to capture those not included under Section 

922(g)(1). That position does not comply with the Supreme Court’s directive in 

Duenas-Alvarez. There is no exception to the actual case requirement 

articulated in Duenas-Alvarez where a court concludes a state statute is 

broader on its face. Indeed, the Court in Duenas-Alvarez emphasized that a 

defendant must “at least” point to an actual state case—the implication being 

that even pointing to such a case may not be satisfactory. Duenas-Alvarez, 549 

U.S. 183, 193. In short, without supporting state case law, interpreting a state 

statute’s text alone is simply not enough to establish the necessary “realistic 

probability.” Id.

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It is worth also noting the practical implications of Castillo-Rivera’s 

contention. Although it may seem narrow at first glance, Castillo-Rivera’s (and 

the dissent’s) argument that the Texas felon-in-possession statue is nongeneric is in fact breathtaking in scope. Castillo-Rivera maintains that the 

Texas statute is broader because it includes within its definition of felony 

crimes that are punishable for less than a year-and-a-day. But such a ruling 

would render dozens of states’ felon-in-possession statutes non-generic. 

Maine’s statute, for example, prohibits possession by anyone convicted of “[a] 

crime . . . that is punishable by imprisonment for a term of one year or more.” 

Me. Stat. tit. 15 § 393. And in Maine, Unlawful Sexual Touching is punishable 

by up to a year in county jail. Me. Stat. tit. 17-A § 260. Applying the dissent’s 

logic, Maine’s statute is non-generic because, on its face, it criminalizes 

possession of a firearm by someone convicted of a crime that is punishable by 

less than a year-and-a-day imprisonment. Whether Maine courts actually 

apply its felon-in-possession statute in such a manner is, for the dissent, 

irrelevant. Or consider Maryland, which prohibits a person from possessing a 

firearm if he or she “has been convicted of a disqualifying crime.” Md. Code 

Ann., Pub. Safety, § 5-133. A “disqualifying crime” includes “a violation 

classified as a felony.” Md. Code Ann., Pub. Safety, § 5-101. In Maryland, child 

abduction in certain instances is a felony punishable by up to a year in prison. 

Md. Code Ann., Family Law, § 9-307. Goodbye Maryland. And what of the 

many states whose definition of “felony” for purposes of firearm possession 

includes persons who were convicted under the laws of any state? If Texas’s 

statute is non-generic, so are all of those as well. So long, Alaska, California, 

Colorado, Georgia, Illinois, Iowa, Kentucky, Nevada, New Hampshire, New 

Mexico, and Virginia. Indeed, by our count, 37 states’ felon-in-possession 

statutes would be at least arguably rendered non-generic if we applied Castillo-

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Rivera’s logic.2 It strains credulity to suggest that such a result would reflect

Congress’ intent in enacting 18 U.S.C. § 922(g)(1).

Our own precedents are also in agreement that, to successfully argue 

that a state statute is nongeneric, a defendant must provide actual cases where 

state courts have applied the statute in that way. The case United States v. 

Carrasco-Tercero, 745 F.3d 192 (5th Cir. 2014) is particularly instructive 

because it has important similarities to our own. Like Castillo-Rivera, 

Carrasco-Tercero pleaded guilty to illegal reentry. His PSR also recommended 

an enhancement, in his case because he had been convicted in New Mexico for 

aggravated assault with a deadly weapon, which was considered a crime of 

violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Like Castillo-Rivera, he too 

argued that the state statute was broader on its face than its federal 

counterpart, and therefore could not be considered a crime of violence for 

sentencing purposes.3 A unanimous panel—quoting to Duenas-Alvarez—

rejected Carrasco-Tercero’s contention, concluding that his argument from the 

text of the New Mexico statute was unavailing because he “failed to identify a 

single case where a New Mexico court ha[d] convicted a defendant . . . based 

on” his proposed interpretation of the statute’s language. Id. at 198. 

Carrasco-Tercero is no outlier. In United States v. Teran-Salas, 767 F.3d 

453 (5th Cir. 2014), for example, we held that, although the defendant had 

“describe[d] a theoretical possibility that [a] Texas statute criminalize[d] 

conduct that would not qualify” as a generic federal offence, his argument 

 

2 For a list of all of these, see the Appendix attached to this opinion. 

3 Indeed, Carrasco-Tercero’s argument was even stronger than CastilloRivera’s, because he pointed to persuasive precedent from a sister circuit explicitly 

holding that the New Mexico statute’s broad language “obstruct[ed] any argument 

that New Mexico aggravated assault (deadly weapon) qualifies as a crime of violence.” 

Carrasco-Tercero, 745 F.3d at 197 (quoting United States v. Rede-Mendez, 680 F.3d 

552, 558 (6th Cir. 2012)).

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failed nonetheless because he could not establish a “realistic probability” that 

he or anyone else was prosecuted in Texas under the nongeneric 

interpretation. Id. at 460. In United States v. Ceron, 775 F.3d 222 (5th Cir. 

2014), we again rejected a defendant’s “clever hypothetical” because he made 

“no showing that [state] courts actually apply the [state] statute to this . . . 

hypothetical conduct.” Id. at 229. In United States v. Hernandez-Galvan, 632 

F.3d 192 (5th Cir. 2011) we concluded that, although the state statute in 

question had language that could be interpreted as criminalizing some acts 

that its federal generic counterpart would not, the defendant had not 

“demonstrate[d] that th[e] difference is significant as a practical matter” 

because he “ha[d] not identified even one [state] case that . . . would have been 

decided differently.” Id. at 200. We have reiterated this point in many other 

cases. See, e.g., United States v. Sanchez, 667 F.3d 555, 561 (5th Cir. 2012) 

(defendant had to point to an actual case even though the “literal terms” of the 

state statute were arguably different from their federal equivalents); United 

States v. Garcia-Figueroa, 753 F.3d 179, 187 (5th Cir. 2012) (same); United 

States v. Cordoba-Posos, 295 F. App’x 651, 656–57 (5th Cir. 2008) (a State 

Senator’s statements to the effect that a state statute swept more broadly than 

its federal counterpart was “insufficient to show a realistic probability” where 

defendant could not “produce a single case” in which a state court had actually 

applied the state law as such); United States v. Lara-Martinez, 836 F.3d 472, 

476 (5th Cir. 2016) (defendant did not satisfy the actual case requirement 

where he pointed to a case applying a different state statutory provision).4

 

4 It is worth noting that a number of the dissenters here were in the majority in one 

or more of the listed cases in our circuit holding that a defendant must point to an actual 

state case applying a state statute in a nongeneric manner, even where the state statute may 

be plausibly interpreted as broader on its face. 

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Castillo-Rivera has had multiple opportunities to present a case in which 

a Texas court applied TPC § 46.04’s definition of felon to a defendant who could 

not have been considered a felon under 18 U.S.C. § 922(g)(1). He did not do so 

in the court below, he did not before the panel on appeal, and he has not in his 

briefing or at oral argument before the en banc court. His argument that TPC 

§ 46.04’s definition of felon is broader than Section 922(g)(1) therefore fails. 

B. Firearm

For purposes of TPC § 46.04, “firearm” is defined as “any device designed, 

made, or adapted to expel a projectile through a barrel by using the energy 

generated by an explosion or burning substance or any device readily 

convertible to that use.” Tex. Penal Code Ann. § 46.01(3) (West 2009). Federal 

law defines “firearm” for purposes of 18 U.S.C. § 922(g)(1) as “(A) any weapon 

(including a starter gun) which will or is designed to or may readily be 

converted to expel a projectile by the action of an explosive; (B) the frame or 

receiver of any such weapon; (C) any firearm muffler or firearm silences; or (D) 

any destructive device.” 18 U.S.C. § 921(a)(3). Castillo-Rivera homes in on one 

supposed distinction between the two definitions: under the Texas definition a 

firearm expels a projectile by “explosion or burning substance,” while under 

the federal definition a firearm expels a projective by “explosive.” He argues 

that, although textually similar, the Texas definition includes an “air gun”—a 

weapon that expels projectiles using compressed air—while the federal 

definition does not.

We note at the outset that Castillo-Rivera is correct that an air gun is 

not a firearm within the federal definition. See, e.g., United States v. 

Housholder, 664 F. App’x 720, 723 (10th Cir. 2016) (noting that “an airgun . . . 

is not a firearm”); United States v. Crooker, 608 F.3d 94, 96 (1st Cir. 2010) 

(holding that the federal definition of firearm “self-evidently does not include 

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an air rifle . . . which operates by compressed air”). As above, however, CastilloRivera must also establish a realistic probability that Texas would apply its 

definition of firearm to include an air gun when applying TPC § 46.04 by 

pointing to an actual case where a Texas court did so. He attempts to satisfy 

this burden by pointing to two Texas cases. Neither is availing.

The first, Mosley v. State, 545 S.W.2d 144 (Tex. Crim. App. 1976), is 

easily disposed of. In that case, the defendant was convicted of aggravated 

assault after pointing an unloaded B.B. gun at his victim in a parking lot and 

threatening to kill her. Id. at 145. He appealed his conviction, arguing that the 

B.B. gun was not a “deadly weapon” as required by the Texas aggravated 

assault statute. Id. In its opinion on Texas’s motion for rehearing, the court 

wrote, “[i]n holding that the device involved did not constitute a firearm . . . 

the opinion did not attempt to exclude all types of air guns or pistols from the 

definition of a firearm. We do not reach that question in this case.” Id. at 146 

(emphasis added). Indeed, the court reaffirmed its holding that Mosley’s B.B. 

gun was not a firearm. This case therefore offers no help to Castillo-Rivera.

The second case Castillo-Rivera highlights is admittedly closer to the 

mark. In Boston v. State, No.05-96-00832-CR, 1998 WL 19938 (Tex. App.—

Dallas Jan. 22, 1998), Boston was convicted for aggravated assault of a peace 

officer under TPC § 22.02(a)(2) after pointing an air rifle at a law enforcement 

officer. Boston appealed his conviction and challenged the sufficiency of the 

evidence, arguing that the air rifle was not a “firearm” as alleged in his 

indictment. Id. at *1. A firearms expert at Boston’s trial testified that the air 

rifle qualified as a firearm under the definition in TPC § 46.01—the same 

definition at issue in Castillo-Rivera’s case. Id. Explaining that it was bound 

by the trial court’s crediting the expert’s testimony on the firearm issue, the 

court in Boston found that the expert’s testimony was “sufficient for the trial 

court to find beyond a reasonable doubt that the air rifle fell within the 

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definition of ‘firearm’ in chapter 46.” Id. at *2. Castillo-Rivera argues that, 

because Boston interpreted chapter 46’s definition of “firearm” to include an 

air rifle, and because Boston could not have been convicted of the crime with 

which he was charged absent application of that definition, Boston establishes 

a realistic probability that Texas would apply TPC § 46.04 to include air guns. 

We note first that Boston did not hold as a matter of law that the Texas 

definition of firearm includes air guns. The court made a sufficiency–of–the–

evidence determination only, and applied the very deferential standards of 

review appropriate in such a case. As such, the court “[did] not have the power 

to re-evaluate the probity” of the firearms expert’s testimony. Id. at *2. 

Importantly, therefore, the court did not decide if an air gun is a firearm under 

TPC § 46.01; it only decided that the district court did not err in crediting a 

given firearms expert’s testimony to that effect. 

Perhaps more importantly, Boston was not a felon-in-possession case. 

Indeed, it had nothing to do with TPC § 46 whatsoever. Boston was charged 

and convicted under an entirely different chapter of the Texas code—TPC § 

22.02(a)(2). The court in Boston highlighted this distinction, writing, “[w]e note 

initially that appellant was charged with aggravated assault under chapter 22 

of the penal code. By its text, the definition of ‘firearm’ in section 46.01 only 

applies to the weapons offenses enumerated in chapter 46.” Id. (internal 

citations omitted). The court went on to explain that it was simply using 

chapter 46’s definition “to assist in the understanding of ‘deadly weapon’ in the 

context of other offenses.” Id. Thus, the court in Boston did not purport to 

interpret or apply TPC § 46’s definition of firearm for purposes of chapter 46 

itself. 

Castillo-Rivera contends that TPC § 46.04 is nongeneric in part because 

it criminalizes possession of an air gun where its federal counterpart does not. 

Boston does not establish the necessary realistic probability that Texas courts 

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would apply TPC § 46.04 itself in this nongeneric manner, because Boston did 

not deal with TPC § 46.04 at all. The Supreme Court has instructed that, to 

carry his burden, a defendant must point to a case “in which the state courts 

in fact did apply the statute in the special (nongeneric) manner for which he 

argues.” Duenas-Alvarez, 549 U.S. at 193 (emphasis added); see also 

Moncrieffe, 133 S. Ct. at 1693 (defendant must point to a case in which “the 

State actually prosecute[d] the relevant offense” in a nongeneric fashion) 

(emphasis added). Boston is not such a case. Castillo-Rivera’s argument 

regarding the definition of firearm must therefore fail as well. 

IV

Because Castillo-Rivera has not established a realistic probability that 

Texas courts would actually apply TPC § 46.04 more broadly than 18 U.S.C. § 

922(g)(1), his argument that TPC § 46.04 is not an aggravated felony for 

purposes of the sentencing guidelines fails. The 8-level enhancement to his 

sentence was correctly applied. Judgment is AFFIRMED. 

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State Felon in Possession of Firearm Statute Language in Issue Effect

1 Alabama Ala. Code § 13A-11-72

"No person who has been convicted . . . of 

committing or attempting to commit a . . . 

misdemeanor offense of domestic violence"

Domestic violence, third degree is Class A 

misdemeanor. Ala. Code § 13A-6-132. Class A 

misdemeanor punishable by "a term of 

imprisonment not in excess of one year." Ala. 

Code § 13A-5-7. 

2 Alaska Alaska Stat. § 11.61.200

"convicted of a felony . . . by . . . a court of another 

state or territory "

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

3 California Cal. Penal Code § 29800

"Any person who has been convicted of a felony 

under the laws of . . . any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

4 Colorado Colo. Rev. Stat. § 18-12-108

"subsequent to the person's conviction for a felony 

. . . under . . . any other state's law"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

5 Delaware Del. Code Ann. tit. 11 § 1448

"Any person who has been convicted in any court 

of any misdemeanor crime of domestic violence . . . 

defined under § 601" 

Del. Code Ann. tit. 11 § 601, Offensive Touching, 

can be a Class A misdemeanor punishable by up 

to one year in prison. Del. Code Ann. tit. 11 § 

4206.

6 DC D.C. Code § 22-4503

"Has been convicted within the past 5 years of an 

intrafamily offense"

A violation of D.C. Code § 16-1022, Parental 

Kidnapping, is punishable by imprisonment of 

one year. D.C. Code § 16-1024.

7 Georgia Ga. Code Ann. § 16-11-131

"Any person . . . who has been convicted of a felony 

by a court of this state or any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

8 Hawaii Haw. Rev. Stat. § 134-7

"No person who . . . has been convicted . . . of . . . 

any crime of violence"

"Crime of Violence," as defined in Haw. Rev. Stat. 

§ 134-1, includes harassment by stalking, Haw. 

Rev. Stat. § 711-1106.5. Harassment by stalking 

is a misdemeanor, punishable by a prison 

sentence “not to exceed one year.” Haw. Rev. 

Stat. § 706-663.

9 Idaho Idaho Code § 18-3316

"'[C]onvicted of a felony' shall include . . . any of 

the crimes enumerated in [Idaho Code §] 18-310"

One of the crimes listed in Idaho Code § 18-310, 

Enticing of Children, has punishment of not more 

than six months in prison. Idaho Code § 18-1509.

10 Illinois 720 Ill. Comp. Stat. 5/24-1.1

"if the person has been convicted of a felony under 

the laws of this State or any other jurisdiction."

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

11 Iowa Iowa Code § 724.26

"A person who is convicted of a felony in a state or 

federal court"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

12 Kansas Kan. Stat. Ann. § 21-6304

"Has been convicted of . . .a violation of article 57 

of chapter 21 of the Kansas Statutes Annotated"

A violation of Kan. Stat. Ann. § 5706(b) is a Class 

A misdemeanor, punishable by up to a year in 

prison. Kan. Stat. Ann § 21-6602(a)(1).

13 Kentucky Ky. Rev. Stat. Ann. § 527.040

"[W]hen he has been convicted of a felony, as 

defined by the laws of the jurisdiction in which he 

was convicted, in any state or federal court"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

14 Louisiana La. Stat. Ann. § 14:95.1

"Any person who has been convicted of . . . any 

crime which is described as a sex offense in R.S. 

15:541"

La. Stat. Ann [R.S.] § 15:541 includes a second 

conviction of voyuerism, which carries a penalty 

of imprisonment with or without hard labor for 

not more than one year. La. Stat. Ann. § 14:283.1

15 Maine Me. Stat. tit. 15 § 393

"A crime that is punishable by imprisonment for a 

term of one year or more"

Me. Stat. tit. 17-A § 260, Unlawful Sexual 

Touching, is a Class D offense, punishable by up 

to a year in county jail. Me. Stat. tit 17-A § 1252

16 Maryland Md. Code Ann., Pub. Safety, § 5-133

"[A] person may not possess a regulated firearm if 

the person (1) has been convicted of a disqualifying 

crime"

Disqualifying crime, as defined in Md. Code Ann., 

Pub. Safety, § 5-101, includes "a violation 

classified as a felony in the State." Md. Code 

Ann., Family Law, § 9-305, 

Abduction/Detainment of a Child, is a felony 

punishable by up to a year in prison. Md. Code 

Ann., Family Law, § 9-307.

17 Massachusetts Mass. Gen. Laws ch. 269 § 10

"A firearm identification card shall be issued [to] 

any person . . . if it appears that the applicant is 

not a prohibited person. A prohibited person shall 

be a person who: (i) has ever . . . been convicted . . . 

of . . . (e) a violation of any law regulating the use, 

possession or sale of controlled substances . . . 

including . . . chapter 94C" Mass. Gen. Laws ch. 

140 § 129

Mass. Gen. Laws ch. 94C § 32G makes the 

creation, distribution, dispersion, and possession 

of a counterfeit substance a crime punishable by 

not more than one year in jail. 

18 Minnesota Minn. Stat. § 624.713

"a person who has been convicted in Minnesota or 

elsewhere of a misdemeanor or gross misdemeanor 

violation of chapter 152"

Minn. Stat. § 152.027(6) makes possession of a 

synthetic cannabinoid a misdemeanor punishable 

by up to ninety days in jail. Minn. Stat. § 609.02

19 Mississippi Miss. Code Ann. § 97-37-5

"It shall be unlawful for any person who has been 

convicted of a felony under the laws of this state"

Miss. Code Ann. § 97-3-13, Malicious 

Confinement as Mentally Ill, is a felony which 

carries a penalty of not more than a year in the 

penitentiary 

20 Nebraska Neb. Rev. Stat. § 28-1206

"Any person who possesses a firearm . . . And who 

has been convicted within the past seven years of 

a misdemeanor crime of domestic violence"

Neb Rev. St. § 28-323, domestic assault, has one 

violation which qualifies as a Class I 

misdemeanor. Neb. Rev. St. § 28-106 sets penalty 

for Class I misdemeanor penalty as not more 

than one year imprisonment

21 Nevada Nev. Rev. Stat. § 202.360

"A person shall not own or have . . . any firearm if 

the person: (a) Has been convicted of a felony in 

this State or any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

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22 New Hampshire N.H. Rev. Stat. Ann. § 159.3

"A person is guilty of a class B felony if he (a) 

Owns or has in his possession or control [a 

weapon] and (b) Has been convicted in either a 

state or federal court in this or any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

23 New Jersey N.J. Stat. Ann. § 2C:39-7

"[A]ny person convicted of a crime pursuant to the 

provisions of N.J.S.2C:39-3 . . . who [has] any of 

the said weapons is guilty of a crime"

N.J. Stat. Ann. § 2C:39-3(k) makes the possession 

of handcuffs under circumstances not manifestly 

appropriate for such lawful uses as handcuffs 

may have guilty of a disorderly persons offense. 

Disorderly person offenses in NJ are punishable 

by up to six months in jail. N.J. Stat. Ann. § 

2C:43-8

24 New Mexico N.M. Stat. Ann. § 30-7-16

"As used in this section: . . . (2) felon means a 

person convicted of a felony offense by a court of 

the United States or of any state or political 

subdivision thereof

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

25 New York N.Y. Penal Law § 265.02

"A person is guilty of criminal possession of a 

weapon in the third degree when (1) such person . 

. . Has been previously convicted of a crime"

"Any crime" would include misdemeanors, which 

carry no more than a year in prison. N.Y. Penal 

Law § 70.15

26 North Carolina N.C. Gen. Stat. § 14-415.1

"It shall be unlawful for any person who has been 

convicted of a felony to purchase, own, possess . . . 

any firearm"

 According to the North Carolina Punishment 

Chart, Class I felonies are punishable by up to a 

year in jail. The Guidelines are available here: 

http://www.nccourts.org/Courts/CRS/Councils/spa

c/Sentencing/Punishment.asp

27 North Dakota N.D. Cent. Code § 62.1-02-01

"A person who has been convicted anywhere of a 

felony offense involving violence or intimidation in 

violation of chapters 12.1-16 through 12.1-25"

N.D. Cent. Code § 12.1-17-01, Simple Assault, 

can be a Class B misdemeanor, punishable by a 

maximum of thirty days in jail. N.D. Cent. Code 

§ 12.1-32-01

28 Ohio Ohio Rev. Code Ann. § 2923.13

"No person shall knowingly [have] any firearm . . . 

If (2) The person is under indictment for or has 

been convicted of any felony offense of violence"

Offense of violence, as defined in Ohio Rev. Code 

Ann. § 2901.01, includes Assault, Ohio Rev. Code 

Ann. § 2903.13. Assault can be a felony of the 

fifth degree, punishable by up to a year in jail. 

Ohio Rev. Code Ann. § 2923.13

29 Oklahoma Okla. Stat. tit. 21 § 1283

"[I]t shall be unlawful for any person convicted of 

any felony in any court of this state"

Attempt to Escape from other prison than 

penitentiary is a felony punishable by 

imprisonment not exceeding one year. Okla. 

Stat. tit. 21 § 1283

30 Oregon Or. Rev. Stat. § 166.270

"Any person who has been convicted of a felony 

under the law of this state or any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

31 Pennsylvania 18 Pa. Cons. Stat. § 6105

"A person who has been convicted of an offense 

enumerated in subsection (b)"

Subsection B includes Corruption of Minors, 

which can be a third degree misdemeanor. 18 

Pa. Cons. Stat. § 6301(a)(2). Third degree 

misdemeanors have a maximum term of 

imprisonment of up to one year. 18 Pa. Cons. 

Stat. § 106

32 Rhode Island R.I. Gen. Laws § 11-47-5

"(a) No person who has been convicted in this state 

or elsewhere of a crime of violence . . . shall [have] 

any firearm."

Crime of violence, as defined in R.I. Gen. Laws §

11-47-2(2), includes felony manufacture of a 

controlled substance. R.I. Gen. Laws § 21-28-

4.01. Manufacture of a Schedule V substance is a 

felony, as it could be penalized with a fine of 

more than $1,000. R.I. Gen. Laws § 11-1-2. 

Manufacture of a Schedule V substance also 

carries a potential prison sentence of up to a 

year.

33 Texas Tex. Penal Code § 46.04

"For purposes of this section, an offense under the 

laws of this state, another state . . . is . . . a felony 

if . . . the offense: . . . (3) is punishable by 

confinement for one year or more in a 

penitentiary"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

34 Utah Utah Code Ann. § 76-10-503

"For purposes of this section: . . . a Category II 

restricted person is a person who : has been 

convicted of any felony"

Utah Code Ann. § 41-4-9 makes it a felony to 

violate the specific chapter of Utah Motor Vehicle 

Code. That punishment cannot be greater than a 

year.

35 Vermont Vt. Stat. Ann. tit 13 § 4017

"A person shall not possess a firearm if the person 

has been convicted of a violent crime."

Violent crime, as defined in Vt. Stat. Ann. tit 13 § 

4017, includes violation of abuse prevention order 

under Vt. Stat. Ann. tit 13 § 1030. Violation of 

abuse prevention order carries a penalty of not 

more than one year in prison

36 Virginia Va. Code Ann. § 18.2-308.2

"It shall be unlawful for (i) any person who has 

been convicted of a felony . . . whether such 

conviction or adjudication occurred under the laws 

of the Commonwealth, or any other state"

Statute includes felonies from other states that 

carry punishment of up to a year in prison (MD, 

MS, OH, OK, UT)

37 West Virginia W. Va. Code § 61-7-7

"No person shall possess a firearm . . . who: . . . 

(8) has been convicted of a misdemeanor offense of 

assault or battery either under the provisions of 

section twenty-eight, article two of this chapter

W. Va. Code § 61-2-28, Domestic Violence, 

includes the crime domestic battery, which is 

punishable by up to a twelve months in jail.

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14

PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

I write separately to explain my views on two matters. First, the many 

opinions have produced several conflicting and remarkably distinct 

understandings of Supreme Court precedent. With respect, I find more 

complexity in these writings than is presented in the case. To my eyes, the 

overarching objective here is to achieve equality in federal sentencing. To that 

end, when criminal records are considered in federal sentencing, and we look 

to state convictions, our effort is to assign the same values to the same criminal 

conduct. Hence, we must not accept labels of crimes—for example burglary—

when often the offenses travelling out of that label vary greatly in the criminal 

conduct being punished.1 Responding to this reality, the Supreme Court has 

defined a federal offense filter through which these state convictions must 

pass. For example, we do not wish to impose the same levels of punishment in 

a federal statute for a defendant engaged in shoplifting and a defendant 

engaged in the felony of burglary. Returning to these basic principles, I am 

confident the Court can, and will, in future cases move to an even more 

compelling analysis. In addition to the thoughtful dissent of Judge Dennis, the 

other writings strongly suggest we are on such a path. As we move forward, I 

join Judge Clement’s opinion as a stabilizing way station. For these reasons, I

concur in Judge Clement’s opinion for the Court.

Regarding the rule of orderliness issue, Judge Smith’s dissent proposes 

that this Court set off on an unwise course that would inevitably lead to 

confusion on threshold questions about how to interpret precedent. Wellintentioned though it is, and with respect, I must register disagreement and a 

 

1 See United States v. Bernel-Aveja, 844 F.3d 206, 215 (5th Cir. 2016) (Higginbotham, 

J., concurring in the judgment).

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caution. To go forward and reduce the jurisprudence of stare decisis to a 

detailed code confected by case-by-case determination of rules apart from our 

well-developed principles of stare decisis would serve disorder, not order. 

Our “rule” of orderliness is simply that we are to apply stare decisis in 

determining whether an earlier panel opinion is controlling. It differs from that 

body of jurisprudence in one respect—a difference which captures the need for 

orderly process among three-judge panels—that is, one panel may not overrule 

another. A panel’s application of the stare decisis rule is always reviewable by 

an en banc proceeding, decisions inevitably interlaced with the merits of the 

issues. We have one other self-imposed constraint, that requiring precirculation of opinions that would create conflicts with other circuits. While 

largely hortatory, its disregard is equally reviewable by the en banc court. If 

the objectives here are to reduce the number of en banc courts, the path 

suggested is perverse. Another observation that Yogi did not make is that “if it 

ain’t broke, don’t fix it.”

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16

PRISCILLA R. OWEN, Circuit Judge, joined by E. GRADY JOLLY, Circuit 

Judge, concurring:

I concur in the en banc court’s opinion. I write separately because there 

is an additional, at least equally compelling, basis for concluding that CastilloRivera’s prior conviction in 2009 under Texas Penal Code section 31.07(b) for 

unauthorized use of a motor vehicle constitutes “an offense described in” 18 

U.S.C. § 922(g)(1).1 That basis is that Castillo-Rivera’s prior conviction comes 

within subsection (1) of 46.04(f), and all predicate offenses defined in 

subsection (1) of 46.04(f) are “described in” § 922(g)(1), and section 46.04(f) is 

“divisible.” This is clear when Texas law and the Supreme Court’s 

jurisprudence regarding “divisible” statutes are examined.

The term “felony,” as used in the Texas felon-in-possession statute, is 

defined in that statute itself, in subsection (f). Section 46.04 states:

(a) A person who has been convicted of a felony commits an 

offense if he possesses a firearm: [after conviction within 

certain parameters]

. . .

(f) For the purposes of this section, an offense under the laws of 

this state, another state, or the United States is, except as 

provided by Subsection (g), a felony if, at the time it is 

committed, the offense:

(1) is designated by a law of this state as a felony;

(2) contains all the elements of an offense 

designated by a law of this state as a felony; or

(3) is punishable by confinement for one year or 

more in a penitentiary.2

All agree that if a defendant were convicted of an offense described in 

subsection 3 of 46.04(f) that was punishable by not more than one year of 

 

1 8 U.S.C. § 1101(a)(43)(E). 2 TEX. PENAL CODE ANN. § 46.04 (West).

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confinement, then that offense would not be “an offense described in” the 

federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1).3 That is 

because the term of confinement for an offense qualifying under 46.04(f)(3), 

“confinement for one year or more in a penitentiary,” can be less than the term 

of confinement for an offense described in § 922(g)(1), which is “punishable by 

imprisonment for a term exceeding one year.” However, all offenses described 

in subsection 1 of 46.04(f) are categorically offenses “punishable by

imprisonment for a term exceeding one year.”4 An offense under subsection 

46.04(f)(1) is one that “is designated by a law of this state as a felony.”5 Under 

Texas law, the least serious felonies are “state jail felonies,”6 and the term of 

confinement for a state jail felony is “not more than two years or less than 180 

days.”7 Consequently, every offense expressly designated as a “felony” by a 

Texas statute carries a potential sentence of at least up to two years of 

confinement. Castillo-Rivera does not dispute this.

Castillo-Rivera argues that Texas Penal Code section 46.04(f) is overly 

broad and is not “divisible,” within the meaning of Supreme Court decisions 

 

3 See 8 U.S.C. § 1101(a)(43)(E) (referencing “an offense described in” 18 U.S.C. 

§ 922(g)).

4 18 U.S.C §922(g)(1). 

5 TEX. PENAL CODE ANN. § 46.04(f)(1) (West). 6 See id. § 12.04:

§ 12.04. CLASSIFICATION OF FELONIES 

(a) Felonies are classified according to the relative 

seriousness of the offense into five categories:

(1) capital felonies;

(2) felonies of the first degree;

(3) felonies of the second degree;

(4) felonies of the third degree; and

(5) state jail felonies.

(b) An offense designated a felony in this code without 

specification as to category is a state jail felony.

7 Id. § 12.35(a).

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including Mathis v. United States.8 He therefore asserts that courts cannot 

consider the judicial documents pertaining to his prior conviction to see if it

was for an offense that comes within subsection (1), rather than subsection (3). 

This argument should be rejected.

Each of the three subsections in 46.04(f) are distinct definitions of what 

offenses are considered “felon[ies]” for purposes of the Texas felon-inpossession statute. While it is undisputed that not all offenses described in 

subsection (3) are described within § 922(g)(1), all offenses described in 

subsection (1) are described within § 922(g)(1). Importantly, each of the 

subsections in 46.04(f) contains only legal definitions. Whether a prior 

conviction is an offense coming within subsection (1) of 46.04(f) is a question of 

law decided by the Texas courts in which the felon-in-possession-of-a-firearm 

is prosecuted.9 In the present case, a court can examine the predicate offense 

for the Texas felon-in-possession-of-a-firearm conviction and determine, as a 

matter of law, whether that predicate offense came within subsection 

46.04(f)(1).

 

8 136 S. Ct. 2243 (2016).

9 See Lucio v. State, 128 S.W.3d 262, 263 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(“The issue presented by this appeal is whether the State was required to prove that the 

aggravating offense, i.e., indecency with a child, was a felony. We hold that the State was 

not required to put on evidence to prove that indecency with a child is a felony. It is true that 

whether the appellant committed the crime of indecency with a child was a question of fact for 

the jury. Accordingly, the jury was charged on the elements of indecency with a child. 

However, whether such crime is a felony presents a legal issue, not a fact question. Therefore, 

the trial judge correctly instructed the jury that indecency with a child is a felony, rather 

than submitting that issue to the jury for a factual determination.”); see also Andika v. State,

No. 10-04-00278-CR, 2005 WL 1484050, at *4 (Tex. App.—Waco June 22, 2005, no pet.) (mem. 

op., not designated for publication) (“Whether a prior conviction is a felony is a question of 

law; it is not subject to a ‘legal sufficiency’ review.”); Jordan v. State, No. 01-14-00721-CR, 

2015 WL 6768497, at *7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op., not 

designated for publication) (“Whether an out-of-state offense constitutes a felony for purposes 

of enhancement is a question of law that we review de novo.”).

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Although it is questionable whether the Mathis divisibility inquiry fully 

applies to a statute such as Texas Penal Code section 46.04(f), that inquiry 

leads to the conclusion that section 46.04(f) is “divisible.” The decision in 

Mathis explains that when considering if Congress intended certain offenses 

to constitute an enumerated or described offense, “Congress referred only to 

their usual or (in our terminology) generic versions—not to all variants of the 

offenses.”10 Courts employ the “categorical approach,” which “focus[es] solely 

on whether the elements of the crime of conviction sufficiently match the 

elements of [the] generic” crime.11 The existence of a prior criminal conviction 

is not an element of a offense in the sense that we often view the term

“element.” For example, in the Armed Career Criminal Act (ACCA)12 cases in 

which the concept of whether the statute of conviction is “divisible” has been 

developed, including Mathis, the Supreme Court has held that the fact of 

whether a prior conviction exists is not a question for the finder of fact.13

It should also be borne in mind that whether a person is a felon is an 

inquiry about status. Being denominated a felon under the law is not an act 

or omission (actus reus) accompanied by a state of mind (mens rea). Nor is the 

status of “felon” a “means” of committing another crime. It is a pre-existing 

legal designation. The Supreme Court’s divisibility analysis has focused on 

distinguishing “elements” of an offense from “means” of committing an offense 

when a statute of conviction is “alternatively phrased.”14 That analysis has 

 

10 Mathis, 136 S. Ct. at 2248. 

11 Id. 12 18 U.S.C. § 924(e).

13 Mathis, 136 S. Ct. at 2252 (“This Court has held that only a jury, and not a judge, 

may find facts that increase a maximum penalty, except for the simple fact of a prior 

conviction.”). 14 Id. at 2249.

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not been employed in resolving whether statutory alternatives, each of which 

concern only a question of law, are divisible. Whether a prior conviction is an 

offense that comes within subsection 1 of section 46.04(f) of the Texas Penal 

Code is purely a question of a law.

The Supreme Court has long recognized that the statute under which a 

prior conviction was obtained may contain alternatives. As noted, the 

divisibility inquiry resolves whether an alternative is an element of an offense 

or a means of committing an offense. For example, the decision in Mathis

explains that in determining whether a statute is divisible, the “threshold 

inquiry” is “elements or means,” and state court decisions may “answer the 

question.”15 If “a jury need not agree” on a factual matter, then that factual 

matter is not an element of the offense but a means of committing the offense.16 

The Mathis decision says that “‘[e]lements’ are the ‘constituent parts’ of a 

crime’s legal definition—the things the ‘prosecution must prove to sustain a 

conviction.’”17 Importantly, Mathis tells us that “[a]t a trial,” elements “are 

what the jury must find beyond a reasonable doubt to convict the defendant,” 

and “at a plea hearing, they are what the defendant necessarily admits when 

he pleads guilty.”18 The questions of fact for a Texas jury regarding a prior 

conviction in a felon-in-possession-of-a-firearm prosecution are whether there 

was in fact a prior conviction and whether the defendant currently in the dock 

was the defendant convicted in that prior proceeding.19 This is typically proven 

 

15 Id. at 2256.

16 Id. 17 Id. at 2248 (quoting BLACK’S LAW DICTIONARY 634 (10th ed. 2014)). 

18 Id. 19 See Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (“To establish that 

a defendant has been convicted of a prior offense, the State must prove beyond a reasonable 

doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction.”). 

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by the introduction of a certified copy of the judgment in the prior case and 

identifying evidence such as fingerprints.20 This dichotomy between the 

respective roles of jury and judge regarding the existence of a predicate offense 

is similar, if not identical to that in federal courts.21 Once the existence of a 

prior conviction is established, whether that conviction was for a predicate 

offense is not a question of fact but a question of law.

The reasons given by the Supreme Court for utilizing the categorical 

approach to determine if a prior conviction may be used to increase punishment

all indicate that the elements/means inquiry elucidated in Mathis is not a 

particularly good “fit” for, or is not fully applicable to, a statute of conviction 

such as Texas Penal Code section 46.04(f). None of the reasons indicates that 

a court should be precluded from resolving the legal question of whether a prior 

conviction was for an offense defined in subsection (1) of 46.04(f).

 

20 See id. at 921-22 (“No specific document or mode of proof is required to prove [the 

elements of a prior conviction]. There is no ‘best evidence’ rule in Texas that requires that 

the fact of a prior conviction be proven with any document, much less any specific document. 

While evidence of a certified copy of a final judgment and sentence may be a preferred and 

convenient means, the State may prove both of these elements in a number of different ways, 

including (1) the defendant’s admission or stipulation, (2) testimony by a person who was 

present when the person was convicted of the specified crime and can identify the defendant 

as that person, or (3) documentary proof (such as a judgment) that contains sufficient 

information to establish both the existence of a prior conviction and the defendant’s identity 

as the person convicted.”) (footnotes omitted); Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. 

App. 1986) (“We have consistently held that a prior conviction alleged for enhancement or a 

conviction as a part of prior criminal record of a defendant . . . may be established by certified 

copies of a judgment and a sentence and authenticated copies of the Texas Department of 

Correction records including fingerprints, supported by expert testimony identifying them as 

identical with known prints of the defendant.”). 21 See, e.g., FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases) §243.D, 

notes (2015) (“The determination whether the defendant has a prior conviction is for the jury. 

But, whether a conviction qualifies as a predicate offense under this statute is a legal 

question for the judge, not the jury.”); see also U.S. v. Elrawy, 448 F.3d 309, 312 (5th Cir. 

2006) (noting that whether a defendant’s particular circumstance rendered him “illegally or 

unlawfully” in the United States based on statutory definitions was a legal issue of statutory 

interpretation, reviewed de novo). 

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The first reason articulated in Mathis is that the text of the ACCA 

focuses on “whether ‘the defendant had been convicted of crimes falling within 

certain categories,’ and not about what the defendant had actually done.”22 

Whether a defendant is a felon within the meaning of one of the subsections of 

46.04(f) focuses only on whether a defendant has been convicted of crimes 

falling within certain categories, not what the defendant actually did. As 

noted, courts, not a jury, decide whether a particular offense is a “felony” 

within the meaning of one or more of section 46.04(f)’s definitions. 

The second reason given by the Supreme Court is that Sixth Amendment 

concerns would be implicated if a judge, rather than a jury, were to find facts 

that increased a maximum penalty.23 The Supreme Court explained that the 

judge’s role, “consistent with the Sixth Amendment,” is to “determine what 

crime, with what elements, the defendant was convicted of.”24 A judge’s role 

in applying section 46.04(f) is to determine if, based on the statutory elements 

of the prior offense and the prescribed punishment, the prior offense comes 

within subsection 1, 2, or 3.

The third reason expressed by the Supreme Court is that “an elementsfocus avoids unfairness to defendants” because “statements of ‘non-elemental 

fact’ in the records of prior convictions are prone to error precisely because 

their proof is unnecessary” and “a defendant may have no incentive to contest 

what does not matter under the law; to the contrary, he ‘may have good reason 

not to.’”25 This concern is not implicated by any of the alternative definitions

under 46.04(f) because each simply sets forth the legal parameters that 

 

22 Mathis, 136 S. Ct. at 2252 (quoting Taylor v. United States, 495 U.S. 575, 600 

(1990)).

23 Id. 24 Id. 25 Id. at 2253.

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determine whether a prior conviction comes within that statute’s definition of 

a felony.

The disjunctive listings in Texas Penal Code section 46.04(f) are not of 

the same ilk as those that have been the focus of the Supreme Court’s 

divisibility analyses. But the reasons given by the Supreme Court for 

preventing a court from examining the underpinnings of a prior conviction 

support, rather than foreclose, application of the modified categorical approach 

to section 46.04(f). A court, as a legal matter, may determine whether a prior 

conviction comes within subsection (1) of 46.04(f) without transgressing the 

reasons that the categorical approach is applied. Uniformity and fairness are 

vindicated, not subverted, by determining if a prior conviction comes within 

subsection (1). Section 46.04(f) is divisible. Castillo-Rivera’s conviction in 2009 

was for a “felony” within the meaning of 46.04(f)(1), and that conviction is 

categorically an offense “described in” § 922(g)(1).

With regard to Castillo-Rivera’s argument that the definition of a 

firearm in Texas Penal Code section 46.04 is broader than § 922(g)’s definition, 

I fully agree with the en banc court’s reasoning and disposition.

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JERRY E. SMITH, Circuit Judge, dissenting, joined by DENNIS, PRADO, 

GRAVES, HIGGINSON, and COSTA, Circuit Judges, in full; and joined except 

for footnote 2 by SOUTHWICK, Circuit Judge:

The baseball legend Yogi Berra is credited with the unintentionally humorous statement, “When you come to a fork in the road, take it.”1 By refusing, 

in a terse footnote, to address the rule of orderliness, this en banc majority 

declines to follow Yogi’s sage advice. I respectfully dissent.2

The panel opinion,3 two paragraphs long, relied on Nieto Hernandez v. 

Holder, 592 F.3d 681, 686 (5th Cir. 2009), which held that Section 46.04(a) of 

the Texas Penal Code “fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of 

‘aggravated felony.’” Castillo-Rivera “urge[d] that this holding does not foreclose his overbreadth arguments because they were not considered in Nieto 

Hernandez.”4 The panel reasoned, to the contrary, that it was “bound” by the 

holding in Nieto Hernandez and could not address what it described as CastilloRivera’s “new arguments.”5

In his resourceful petition for rehearing en banc, the Federal Public 

Defender explained that “the Panel held . . . that the rule of orderliness extends 

to issues that were not considered by a prior panel. This is consistent with 

 

1 The saying is mistakenly attributed to Berra. See https://en.wikiquote.org/-

wiki/Yogi_Berra. That common misunderstanding evokes recollection of a real “Yogiism”. 

See The Yogi book: I really didn’t say everything I said! (Workman Publishing 1997), p. 9. 

2 I join and agree with Judge Dennis’s compelling dissent on the merits, which shows 

why the judgment of sentence should be vacated. Properly understood, Mr. Castillo-Rivera’s 

Texas felon-in-possession conviction is not an aggravated felony for purposes of the sentencing guidelines. I write this separate dissent to examine the consequences of the majority’s 

failure to address the rule of orderliness.

3 United States v. Castillo-Rivera, 836 F.3d 464 (5th Cir. 2016).

4 Id. at 464.

5 Id. at 465.

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some of this Court’s . . . decisions . . . but inconsistent with others. It is also 

inconsistent with the Supreme Court’s precedent about precedent.” More precisely, the Federal Public Defender framed the procedural issue this way: 

“[D]oes a prior opinion foreclose arguments that were waived in the prior proceeding but advanced in the current case?”

The reference to “waived” arguments stems from the fact that in Nieto 

Hernandez, the defendant explicitly “concede[d] that his offense under . . . 

§ 46.04(a) fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated 

felony.’”6 Nieto Hernandez, 592 F.3d at 686 n.6. The Federal Public Defender 

rightly reasoned that “Mr. Castillo-Rivera is not in privity with Mr. Nieto 

Hernandez, and there is no reason why he should be held to the same waiver 

that his predecessor selected.”7 

The court granted rehearing en banc8 and sent the following notice:

Although the attorneys, in their briefs and oral argument, are free to 

address any matters raised in the case, the court is principally interested in the two issues presented in the petition for rehearing en banc, 

to-wit, (1) whether this court’s rule of orderliness, properly understood, 

should extend to issues that were not considered by a prior panel and 

(2) whether the crime defined in Texas Penal Code § 46.04(a) fits within 

the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(E)(ii). In 

addition to the briefs of the parties, the court welcomes qualified submissions from amici curiae regarding either or both of these issues.

 

6 Except for an interstate-commerce element, not relevant here.

7 The en banc petition further explained,

 This Court’s decisions diverge when considering arguments or issues that were 

never presented to or addressed by the earlier panel. Are present-day judges bound 

by rulings that were never made in the past? Said another way, is one appellant’s 

deliberate choice to waive certain issues binding as to all future appellants? One 

can find . . . Fifth Circuit panel opinions answering in the affirmative and . . . in the 

negative.

8 United States v. Castillo-Rivera, 842 F.3d 862 (5th Cir. 2016) (per curiam).

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The parties fully addressed both questions in their en banc briefs, and the 

Institute for Justice submitted a brief as amicus curiae, helpfully discussing 

the rule of orderliness from the civil side of the docket.

The issue is therefore fully joined, but the en banc majority declines 

Yogi’s advice to take the fork in the road. The excuse is terse: “We do not reach 

this issue here, as it is not necessary to our disposition of Castillo-Rivera’s case 

on the merits.”

Strictly speaking, that is true. The rule of orderliness binds panels not 

to overrule earlier panels absent specified exceptions. Once a case is taken 

en banc, the court is free to overrule or modify the holdings of any panel (or, 

for that matter, a prior en banc decision). So any exposition by the en banc 

court on the rule of orderliness will always be dictum. By that bare reasoning, 

however, the rule of orderliness, however confusingly, erroneously, or 

contradictorily stated by panels past, can never be changed or its scope refined 

or reconciled. No panel can revisit it because of (guess what?) the rule of 

orderliness. And—so the argument goes—the en banc court should not do so, 

because it is, technically, unnecessary to the case at hand. Sort of a 

“Catch 22.”9 

That logic, albeit handy in the interest of expediency, undermines the 

supervisory responsibility of a federal court of appeals. At the panel level, the 

court has supervisory authority over the district courts, the lawyers as officers 

of the court, and the party litigants. It follows that at the en banc level, the 

court, if by no other justification than necessity, must address irregularities in 

the rule of orderliness, as the en banc Fourth Circuit carefully explained:

 

9 Joseph Heller, Catch 22 (Simon & Schuster 1961).

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The question of the binding effect of a panel opinion on subsequent 

panels is of utmost importance to the operation of this court and the 

development of the law in this circuit. Accordingly, before considering 

the merits of [this case], we first address this important procedural 

issue.

McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2009) (en banc) (footnote 

omitted). That is so especially where the rule is applied in a manner so extreme 

as to bind parties to concessions made on questions of law in unrelated cases.

This court’s supervisory power is so long- and well-established that citation is almost superfluous. A quick computer search produces myriad Fifth 

Circuit decisions mentioning our “supervisory authority” or “supervisory 

power[s].” This power includes authority over, inter alia, attorneys as officers 

of the court and district judges who can be removed from cases for good reason.10 It follows naturally that this en banc court has ample supervisory authority to refashion the rule of orderliness that applies to our own panels. 

“The supervisory power of the appellate courts has long been established.”11 “The variety of situations in which [the supervisory power] has been 

invoked defies any attempt to [define] which is at once comprehensive and 

accurate . . . . The sole common denominator . . . is a desire to maintain and 

develop standards of fair play in the federal courts . . . .”12 “Through our super-

 

10 United States v. Jefferson, 623 F.3d 227, 232 (5th Cir. 2010) (Clement, J.) (“[T]he 

United States Attorney remains subject to this court’s general supervisory powers [over] frivolous . . . appeals.); Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 938 (5th Cir. 2006) 

(supervisory power to remove district judge from a case). 

11 United States v. Hammond, 605 F.2d 862, 864 n.4 (5th Cir. 1979) (Goldberg, J.) (on 

petition for rehearing).

12 Note, the Judge-Made Supervisory Power of the Federal Courts, 53 GEO. L.J. 1050, 

1050 (1965).

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visory powers, we ‘may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress.’”13 This can be, for example, 

“to protect the integrity of the judicial process.”14 

It would be a rogue panel or district court indeed that would defy an 

en banc refinement of the rule of orderliness, expressed in the exercise of 

supervision, on the shaky ground that it is dictum. The point is that the 

en banc majority should have tackled the issue in the interest of justice and 

regularity. Its failure to do that is error.

Beyond the majority’s dereliction in abandoning the opportunity to refine 

this court’s process in recognizing precedent, it is significant to examine the 

aggressive rule that the majority blesses, albeit sub silentio. We can leave for 

another day a general explication of how, in an ideal world, the rule of orderliness should read. For the case at hand, we need only consider the extreme 

formulation that the government urges and the majority accepts: that where, 

as here, a party in an unrelated case has chosen, for whatever reason, to concede a point of law, and that concession is included in a final holding or judgment, the concession is binding, as a matter of law, on all courts and parties in 

later cases.15 

A party can concede a legal issue for divers reasons. He could be pro se

 

13 United States v. Williams, 20 F.3d 125, 128 (5th Cir. 1994) (Goldberg, J.) (quoting 

United States v. Hasting, 461 U.S. 499, 505 (1983)).

14 Hammond, 605 F.2d at 864.

15 The same logic applies to the less obvious situation in which, in the prior case, an 

alternate theory or claim, although not explicitly abandoned or conceded, is never raised or 

even mentioned. The question there, as here, is whether a judgment denying relief on the 

claim that is addressed precludes, via the rule of orderliness, a later, unrelated party from 

making the additional claim that the first court never confronted. 

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and unaware of the consequences of his concession. He could be represented 

by incompetent counsel. His lawyer could decide that it is better to focus the 

court on other perceptively more winnable issues, especially in light of the 

length limitations for briefs. The party might wish to avoid disclosing embarrassing facts to the judge or jury by conceding the issue to which those facts 

are relevant. Or a particular issue might be especially expensive or timeconsuming for him to develop. The point, however, is that he and only he 

should suffer the consequences―or reap the benefits―of a decision to concede 

a point of law, and the concession should be understood as not establishing a 

legal precedent beyond the preclusive effect, as law of the case or res judicata, 

on the parties to that proceeding in the case at hand or subsequent litigation.

The government, however, urges that we adopt the most expansive possible reading of the rule of orderliness: that a judgment that incorporates, by its 

silence, a legal issue that is conceded by a party―indeed, even a pro se

party―will bind all future litigants in this court as though the issue had been 

contested, briefed, considered, and explicitly ruled on by the original panel. 

The reader might suggest that that overstates the government’s position. But 

the government stood steadfast by that articulation of the rule of orderliness 

in answering questions at en banc oral argument. Government counsel 

explained,

 The court is not bound to accept the concession of a party. . . . Panels 

of the court need to have the ability and the authority to give guidance 

and notwithstanding the fact that a litigant conceded an issue, the court 

does not have to accept that concession. It can look beyond the concession and satisfy itself that the rule it is announcing is based in the law. 

I think that is exactly what happened here with Nieto Hernandez. 

Government counsel erred. That is not at all what occurred in Nieto 

Hernandez. The reader will search, in vain, the briefs of Nieto Hernandez and 

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the government for any discussion of the elements of Texas Penal Code 

§ 46.04(a) or 18 U.S.C. § 922(g)(1).16 It naturally follows that the Nieto 

Hernandez panel made no explicit holding except that “[w]e hold that state 

felon-in-possession offenses, such as TPC § 46.04(a), need not have an interstate commerce element in order for the offense to be an offense ‘described in’ 

18 U.S.C. § 922(g)(1).” Nieto Hernandez, 592 F.3d at 684. The panel added, 

“We conclude, as we did in [United States v. Garza, 250 F. App’x 67, 71 (5th 

Cir. 2007) (per curiam)], that Nieto’s offense under TPC § 46.04(a) fits within 

8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of ‘aggravated felony.’” At that point, 

the panel appended the following footnote:

 In his brief, Nieto concedes that his offense under TPC § 46.04(a) 

fits within 8 U.S.C. § 1101(a)(43)(E)(ii)’s definition of “aggravated felony” in every respect except for . . . an interstate commerce element. 

TPC § 46.04(a) has two elements that are relevant to this decision: 

(1) prior felony conviction and (2) possession of a firearm. 18 U.S.C. 

§ 922(g)(1) has three relevant elements: (1) prior felony conviction; 

(2) possession of a firearm; and (3) interstate commerce requirement. 

Nieto concedes in his brief that TPC § 46.04(a)’s two elements correspond with 18 U.S.C. § 922(g)(1)’s first two elements. 

Nieto Hernandez, 592 F.3d at 686 n.6.

It is obvious that merely by acknowledging the defendant’s concession, 

the Nieto Hernandez panel did not―in the words of government counsel quoted 

above―“look beyond the concession and satisfy itself that the rule it is announcing is based in the law.” Nonetheless, applying its extreme version of the 

rule of orderliness, the government, in its en banc brief, posits that “NietoHernandez [sic] remains binding as to its holding that the substantive element 

of firearm possession is the same under Section 46.04 and Section 922(g)(1).”

 

16 Except for the interstate-commerce element of the latter.

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Application of the government’s rule to Nieto Hernandez undermines the 

sound decision of the panel not to convert his concession into a holding. The 

issue was neither briefed nor argued. Traditionally in our adversarial system 

of justice, parties raise issues and give reasons for their respective points of 

view; judges examine those submissions and declare the winners based on the 

issues that are still contested. If a party fails to raise an issue or―for whatever 

reason―explicitly waives it, he suffers any consequences from that choice or 

from his inadvertence. In these circumstances, that is to Nieto Hernandez’s 

detriment. The panel in his case did not decide the issue, and Castillo-Rivera 

should have been free to bring it and to have it decided as though no prior party 

had ever waived, abandoned, or failed to raise it. And that is the result that 

has obtained under the better understanding of this court’s rule of orderliness. 

That is, until now. By declining to take the fork in the road―that is, by 

refusing to address and decide one of the two questions on which the court 

decided to rehear this case en banc―the court, in effect, installs the government’s articulation of the rule of orderliness in terms more specific and onerous 

than ever before, and does so without justification or explanation. 

The government’s position is, at once, both smug and convenient: smug, 

in that the government says that the matter is not even worthy of consideration, urging that this court “should stay the course and continue to trust the 

systems of review currently in place.” In other words, “Move along, folks, nothing to see here.”17 And convenient, in that the rule it brandishes is rigged to 

favor itself and parties in a similar position.

 

17 “An ironic or sarcastic phrase uttered by a person who feels that he/she has detected 

a hidden, usually unpleasant or sinister, deeper meaning of a story . . . [that he/she] wishes 

to conceal possibly to avoid upsetting the general public.” 

http://www.urbandictionary.com/define.php?term=nothing%20to%20see%20here.

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A rule of procedure that flatly bars parties from raising issues that were 

“decided” by default or inadvertence in prior, unrelated cases will almost 

always favor the government and disfavor the criminal defendant.18 It is generally the defendant who raises defenses to prosecution and makes objections 

to enhancements and other aspects of the sentence. In an adversarial system, 

the defendant benefits from coming up with defenses that have never been 

ruled upon or new arguments that no previous defendant has ever articulated. 

The government, on the other hand, benefits from having as many 

arguments as possible foreclosed by precedent, waiver, or abandonment.19 

How convenient it is for the government to say that a particular theory that 

was never adversarily tested is nonetheless unavailable to the instant 

defendant because some hapless defendant conceded that issue in the recent 

or distant past. That approach to precedent does indeed “stay the course and 

continue . . . the systems of review currently in place.” 

The question is whether the government sees its role as doing justice or 

winning at all cost. How is it fair to cut off resourceful attorneys from making 

good-faith arguments that no court has ever addressed, seriously considered, 

or decided? The majority does not say.

As the Institute for Justice comprehensively shows in its en banc brief 

as amicus curiae, this methodological flaw infects the arena of civil litigation, 

 

18 The same disadvantage accrues to a civil plaintiff who wishes to advance claims 

that an unrelated plaintiff, in a previous case, conceded or otherwise failed to advance. 

I address the civil side of the docket below. 

19 In its opposition to Castillo-Rivera’s petition for rehearing en banc, the government 

summarizes its rule as this: “Arguments considered or not considered in the prior panel’s 

resolution of the issue are irrelevant to a future panel because the issue has been decided.” 

In its amicus brief, the Institute for Justice appropriately calls the government’s rule “the 

sweeping precedent rule.”

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as well: “Parties should not be bound by the strategic decisions of past litigants 

to waive certain arguments. Judges should not be forced to choose between 

conducting enhanced, corrective en banc review versus grappling with unbriefed, unraised arguments in every opinion just to ensure that en banc correction will not be necessary.” And more: “The constitutional rights of every 

American will be better protected if those rights are decided squarely on a caseby-case basis, rather than being implicitly ruled upon simply because they 

lurked in the background of a previous case.”20 

“The premise of our adversarial system is that appellate courts do not sit 

as self-directed boards of legal inquiry and research, but essentially as arbiters 

of legal questions presented and argued by the parties before them.” NASA v. 

Nelson, 562 U.S. 134, 147 n.10 (2011) (Alito, J.). The contrary notion―that 

waived or abandoned issues nevertheless should be deemed “decided” and 

binding―should be the easiest to discard because of its abject unfairness and 

its irrationality as a manner of decisionmaking by an adversarial, common-law 

court. Yet the majority declines to reject or even discuss it. 

Refusing to take this fork in the road is the easy way, but not the right 

one. I respectfully dissent.

 

20 And more still: 

 To be sure, litigants are bound by the holdings of courts in cases to which they 

were not parties. But that is a far cry from saying litigants can be bound by the 

tactical choices of individual parties with whom they are not in privity. A party can 

waive an argument for any number of reasons, from tactical considerations to ideological preferences to simple incompetence. To impose that decision on a party with 

a different view of tactics or ideology (or a different level of competence) deprives 

that party of important due-process rights.

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JAMES L. DENNIS, Circuit Judge, joined by STEWART, Chief Judge, and 

SMITH, PRADO, and GRAVES, Circuit Judges, and joined with respect to Part 

I only by HIGGINSON and COSTA, Circuit Judges, dissenting:

Juan Castillo-Rivera provides two independently sufficient grounds 

establishing that Texas Penal Code (TPC) § 46.04 is broader than 18 U.S.C. 

§ 922(g)(1) and that his prior conviction under TPC § 46.04 is therefore not an 

aggravated felony under the sentencing guidelines. First, he shows that the 

state law definition of “felony” is broader than the federal law definition. 

Second, he demonstrates that the state law definition of “firearm” is broader 

than the federal law definition. The majority opinion does not dispute CastilloRivera’s contentions. Instead, it purports to rely on Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007), in holding that Castillo-Rivera has failed to 

point to a state court decision that applies the state law in the manner for 

which he argues. In truth, however, the majority opinion relies on its own 

distorted version of Duenas-Alvarez’s rule, stretching it far beyond its original 

meaning and inserting additional requirements of the majority’s own creation. 

I respectfully dissent. 

I. The Definition of “Felony”

Castillo-Rivera’s first contention is that the Texas offense of unlawful 

possession of a firearm by a felon, TPC § 46.04, is broader than its federal 

counterpart, 18 U.S.C. § 921(g), due to the state offense’s much more expansive 

definition of “felony.” Under TPC § 46.04(f): 

an offense under the laws of this state, another state, or the United 

States is . . . a felony if, at the time it is committed, the offense: (1) 

is designated by the law of this state as a felony; (2) contains all 

the elements of an offense designated by a law of the state as a 

felony; or (3) is punishable by confinement for one year or more in

a penitentiary. 

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(emphasis added). The federal statute, 18 U.S.C. § 922(g)(1), makes the 

possession of a firearm unlawful only for those convicted of “a crime punishable 

by imprisonment for a term exceeding one year.” 

The majority opinion does not dispute that the state’s definition of 

“felony” for purposes of TPC § 46.04 is broader by its plain language than the 

comparable terms of 18 U.S.C. § 922(g)(1).1 But the majority opinion holds 

that Castillo-Rivera nevertheless fails to establish that the state’s definition is 

broader than the federal one because he does not point to a state decision that 

illustrates that point. It cites Duenas-Alvarez for the proposition that a 

defendant must do so in all cases in order to establish a “realistic probability”

that the state would apply its law in a way that falls outside of the scope of the 

relevant federal offense.2 Duenas-Alvarez did not so hold. 

In Duenas-Alvarez, the defendant argued that his prior California 

conviction for theft and unlawful driving or taking of a vehicle under California 

 

1 At one point, the majority opinion disingenuously characterizes Castillo-Rivera’s 

undisputed construction of TPC § 46.04(f) as a “plausible interpretation of statutory text,” 

Maj. Op. at 5, as if anyone could argue that Texas’s elaborate definition of “felony” actually 

includes only crimes punishable by more than one year in prison. This is plainly false. 

Consider, for instance, the federal misdemeanor offense of simple possession of heroin or 

cocaine, 21 U.S.C. § 844, which is punishable by one year in prison for a first-time offender 

and “contains all the elements of” a Texas felony under Texas Health & Safety Code 

§ 481.115(a) and therefore counts as a felony under TPC § 46.04(f)’s definition. Even the 

Government concedes in its brief on appeal that, “the definitions in subsection (f)(2) and (3) 

of TPC § 46.04 are broader than the federal definition.” 

2 While relying exclusively on Duenas-Alvarez, the majority opinion also provides a 

“see also” citation to conclusory, postscript dicta in Moncrieffe v. Holder, 133 S. Ct. 1678, 1693 

(2013). The cursory statement in Moncrieffe is not the kind of detailed analysis of the law 

that we have found persuasive. See United States v. Krohn, 700 F.2d 1033, 1037 (5th Cir. 

1983) (the Supreme Court “does not decide important questions of law by cursory dicta 

inserted in unrelated cases” (quoting In re Permian Basin Area Rate Cases, 390 U.S. 747, 775 

(1968)); cf. Gearlds v. Entergy Servs., Inc., 709 F.3d 448, 452 (5th Cir. 2013) (stating, “we give 

serious consideration to this recent and detailed discussion of the law by a majority of the 

Supreme Court” and finding it persuasive “[b]ased on the depth of the Court’s treatment of 

the issue”).

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Vehicle Code § 10851 was not a generic theft offense because: (1) the statute 

allows for the conviction of aiders and abettors; (2) California courts hold aiders 

and abettors liable for any crime that “naturally and probably” results from 

their intended crimes; and (3) California’s judicial “natural and probable 

consequences” doctrine is broader than that of other jurisdictions in that it 

makes an aider-and-abettor defendant criminally liable for conduct that the 

defendant did not intend, “not even as a known or almost certain byproduct of 

the defendant’s intentional acts.” Duenas-Alvarez, 549 U.S. at 190–91. To that 

argument, the Supreme Court responded that “to find that a state statute 

creates a crime outside the generic definition of a listed crime in a federal 

statute requires more than the application of legal imagination to a state 

statute’s language.” Id. at 193. Rather, an offender must show “a realistic 

probability, not a theoretical possibility, that the State would apply its statute 

to conduct that falls outside the generic definition of a crime. To show that 

realistic probability, an offender . . . must at least point to his own case or other 

cases in which the state courts in fact did apply the statute in the special 

(nongeneric) manner for which he argues.” Id.

Duenas-Alvarez does not defeat Castillo-Rivera’s claim. Duenas-Alvarez 

is concerned with the defendant who tries to demonstrate that a statute is 

overbroad by hypothesizing that it might be applied in some fanciful or 

unlikely way—through “the application of legal imagination.” Castillo-Rivera 

is not relying on “the application of legal imagination” to establish that TPC 

§ 46.04(a) is overbroad; he is relying on the statute’s plain language. As the 

Ninth Circuit has explained: 

Where . . . a state statute explicitly defines a crime more broadly 

than the generic definition, no “legal imagination” is required to 

hold that a realistic probability exists that the state will apply its 

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statute to conduct that falls outside the generic definition of the 

crime. The state statute’s greater breadth is evident from its text.

United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc) (citation 

omitted) (quoting Duenas-Alvarez, 549 U.S. at 193). 

This approach is consistent with the Supreme Court’s instructions in 

Taylor v. United States, 495 U.S. 575 (1990), in which the Court established 

the categorical approach to determine whether a prior state offense constitutes 

a generic or other listed offense for purposes of federal law. Taylor directs that, 

when applying the categorical approach, we evaluate “the elements of the 

statute of conviction,” i.e., the “statutory definition” of the prior offense. 495 

U.S. at 601–02. Of course, state prosecutors’ discretionary decisions whether 

or not to prosecute an offense under certain circumstances cannot add statutory 

elements to statutes that plainly do not contain those elements. Cf. United 

States v. Aparicio-Soria, 740 F.3d 152, 158 (4th Cir. 2014) (en banc) (holding 

that the Maryland crime of resisting arrest was not a crime of violence despite 

the lack of showing that anyone has ever been convicted of the offense without 

using force and observing, “It may be that Maryland prosecutors tend to charge 

too many offenders with resisting arrest when they could charge far more 

serious crimes, or it may be that we have a skewed universe of cases from the 

hundreds of resisting arrest convictions sustained each year. Either way, it 

does not really matter because the key is elements, not facts, and violent force 

is simply not an element of resisting arrest in Maryland.” (citation and 

internal quotation marks omitted)). 

Viewed in this context, it is clear that Duenas-Alvarez does not, as the 

majority opinion holds, require a defendant to disprove the inclusion of a 

statutory element that the statute plainly does not contain using a state case. 

Taylor itself illustrates this point. In that case, the Supreme Court considered 

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whether a defendant’s prior Missouri convictions constituted generic burglary 

for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). Taylor, 495 

U.S. at 577–79. The Court noted that, at the time, Missouri had several 

different statutes criminalizing burglary, not all of which included all the 

elements of generic burglary. Id. at 578 n.1, 602. For instance, one of the 

relevant statutes prohibited the breaking and entering of a “building, booth, 

tent, boat, or railroad car,” id. at 578 n.1 (citing MO. REV. STAT. § 560.070 

(1969) (repealed)), whereas the generic offense pertains only to the entry of a 

“building or structure,” id. at 599. The Court therefore remanded the case for 

a determination of which of the Missouri burglary statutes were the bases for 

the defendant’s prior convictions. Id. at 602. Of crucial relevance here, the 

Supreme Court did not require the defendant to produce a Missouri state case 

to establish that the state’s burglary statutes criminalized the breaking and 

entering of a boat or railroad car. See id.

We have followed suit. For instance, we did not require a state case in 

order to conclude, on plain error review, that a Florida statute criminalizing 

consensual sexual activity with a seventeen-year-old does not require use of 

force as an element of the offense. See United States v. Chavez-Hernandez, 671 

F.3d 494, 499 (5th Cir. 2012). Similarly, we did not require a state case to 

establish that the relevant California statutory definition of “minor” as “a 

person under the age of 18 years” includes persons over the age of sixteen. See

United States v. Lopez-DeLeon, 513 F.3d 472, 475 (5th Cir. 2008). 

The majority opinion’s broad holding that a defendant must in all cases 

point to a state case to illustrate the overbreadth of the state offense overrules 

a legion of cases while refusing to even acknowledge their existence. See, e.g., 

United States v. Martinez-Romero, 817 F.3d 917, 923 (5th Cir. 2016) 

(concluding that Florida’s kidnapping statute does not require substantial 

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interference with the victim’s liberty because text of the statute included no 

reference to such a requirement); Chavez-Hernandez, 671 F.3d at 499 (“On its 

face, [the defendant’s] offense does not qualify under the physical force portion 

of the definition because the Florida statute does not include the use of force 

as an element of the offense.” (emphasis added)); United States v. NajeraMendoza, 683 F.3d 627, 630 (5th Cir. 2012) (relying solely on the language of 

an Oklahoma kidnapping statute to conclude that it does not meet the generic 

definition of kidnapping); United States v. Ortiz-Gomez, 562 F.3d 683, 685–87 

(5th Cir. 2009) (holding that a Pennsylvania “terroristic-threats” offense was 

not a “crime of violence” based on the language of the statute and without 

requiring a state decision on point); United States v. Constante, 544 F.3d 584, 

585, 587 (5th Cir. 2008) (relying on the language of TPC § 30.02(a) to conclude 

that it does not contain as an element the necessary mens rea to constitute 

generic burglary); Lopez-DeLeon, 513 F.3d at 475; United States v. LopezSalas, 513 F.3d 174, 178 (5th Cir. 2008) (relying on the language of the relevant 

state statute to conclude that it does not include as an element the necessary 

mens rea to constitute a drug trafficking offense); United States v. OrtegaGonzaga, 490 F.3d 393, 394 (5th Cir. 2007) (relying on the language of a 

California burglary statute to conclude that it did not require unprivileged 

entry and therefore did not constitute generic burglary); see also United States 

v. Martinez, 595 F. App’x 330, 334 (5th Cir. 2014) (“[W]e have found the 

realistic possibility requirement met without the benefit of a specific state 

decision on point in circumstances where the plain language of the statute 

clearly criminalized conduct outside of the [relevant generic] offense.” (citing 

Ortiz-Gomez, 562 F.3d at 685–87)). 

Nor does the majority opinion address or even acknowledge that its 

holding directly conflicts with holdings from the First, Third, Sixth, Ninth, and 

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Eleventh Circuits, all of which have recognized the limits of Duenas-Alvarez’s 

requirement. See Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) (“Simply put, 

the plain terms of the Rhode Island drug schedules make clear that the Rhode 

Island offense covers at least one drug not on the federal schedules. That 

offense is simply too broad to qualify as a predicate offense under the 

categorical approach, whether or not there is a realistic probability that the 

state actually will prosecute offenses involving that particular drug.”); Vassell 

v. U.S. Attorney Gen., 839 F.3d 1352, 1362 (11th Cir. 2016) (“Duenas-Alvarez

does not require this showing when the statutory language itself, rather than 

‘the application of legal imagination’ to that language, creates the ‘realistic 

probability’ that a state would apply the statute to conduct beyond the generic 

definition.”); Singh v. Attorney Gen., 839 F.3d 273, 286 (3d Cir. 2016) (“The BIA 

erred in conducting a ‘realistic probability’ inquiry” because “[h]ere, the 

elements of the crime of conviction are not the same as the elements of the 

generic federal offense” and “[t]he Supreme Court has never conducted a 

‘realistic probability’ inquiry in such a case”); United States v. Grisel, 488 F.3d 

844, 850 (9th Cir. 2007) (en banc) (“Where . . . a state statute explicitly defines 

a crime more broadly than the generic definition, no “legal imagination” is 

required to hold that a realistic probability exists that the state will apply its 

statute to conduct that falls outside the generic definition of the crime.”); 

Mendieta-Robles v. Gonzales, 226 F. App’x 564, 572 (6th Cir. 2007) (the 

Government’s legal-imagination argument fails because “it requires us to 

ignore the clear language” of the statute).

Thus, the majority opinion’s unqualified rule that a defendant must in 

all cases point to a state court decision to illustrate the state statute’s breadth 

misconstrues Duenas-Alvarez, directly conflicts with Taylor, and ignores both 

our established circuit precedent and the holdings of several of our sister 

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circuits. Castillo-Rivera has shown that TPC § 46.04’s definition of “felony” is 

broader than the federal definition, and the state offense therefore covers 

conduct outside the scope of 18 U.S.C. § 922(g)(1). Accordingly, Texas’s felonin-possession-of-a-firearm offense is not “described in” 18 U.S.C. § 922(g)(1) 

and does not constitute an aggravated felony. See 8 U.S.C. § 1101(a)(43)(E)(ii); 

U.S.S.G. § 2L1.2 cmt. n.3(A). 

II. The Definition of “Firearm” 

Castillo-Rivera’s second contention is that the Texas felon-in-possessionof-a-firearm offense is broader than the federal one because of the more 

expansive state definition of “firearm,” which can include even air guns. He 

notes that Texas law defines a “firearm” as “a device designed, made or adapted 

to expel a projectile through a barrel by using the energy generated by an 

explosion or burning substance,” TPC § 46.01(3) (emphasis added), whereas 

federal law defines “firearm,” as relevant here, as “any weapon . . . which will 

or is designed to or may readily be converted to expel a projectile by the action 

of an explosive,” 18 U.S.C. § 921(a)(3) (emphasis added). 

Here, Castillo-Rivera does not argue that the relative overbreadth of the 

state offense is plain from its text. He must therefore show a “realistic 

probability” that the state would apply the statute to conduct that is not 

covered by the federal offense, by pointing to “his own case or other cases in 

which the state courts in fact did apply the statute in the special manner for 

which he argues.” Duenas-Alvarez, 549 U.S. at 193. He does just that. 

Castillo-Rivera points to the Texas appellate court decision in Boston v. 

State, No. 05-96-00832-CR, 1998 WL 19938 (Tex. App. Jan. 22, 1998) 

(unpublished). In Boston, the defendant was convicted of aggravated assault 

of a peace officer after he pointed an air rifle at an officer. Id. at *1. To support 

his conviction, the State had to prove that the defendant’s air rifle was a 

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“firearm” and therefore qualified as a “deadly weapon.” See id. In determining 

whether the defendant’s air rifle was a “firearm” for purposes of the 

defendant’s offense, the court utilized the definition of “firearm” in TPC 

§ 46.01(3).3 See id. at *2. The state court held that there was sufficient 

evidence to conclude that the defendant’s air rifle constituted a “firearm” 

within the meaning of TPC § 46.01(3) because the release of compressed air 

constituted an “explosion,” and it therefore affirmed his conviction.4 Id. (under 

TPC § 46.01(3) “a firearm is any device designed, made, or adapted to expel a 

projectile through a barrel by using the energy generated by an explosion or

burning substance. The firearms examiner testified that there is an explosion 

. . . whenever the compressed air in an air rifle is released” (emphasis in 

original)). Castillo-Rivera has thus pointed to a state case holding that the 

state law definition of “firearm” controlling his offense of conviction can include 

air rifles. 

Unlike the Texas definition, the federal definition, which requires the 

action of an “explosive,” 18 U.S.C. § 921(a)(3), “self-evidently does not include 

an air rifle . . . [that] operates by compressed air.” United States v. Crooker, 

608 F.3d 94, 96 (1st Cir. 2010); see also United States v. Housholder, No. 15-

3146, 2016 WL 6595898, at *2 (10th Cir. Nov. 8, 2016) (unpublished) (an air 

gun is not a firearm). Thus, the court in Boston actually applied a statutory 

 

3 TPC § 46.01(3)’s definition of “firearm” expressly applies only to weapons offenses, 

but Texas courts have long used this definition to determine whether a particular weapon 

counts as a “firearm” in the context of offenses involving the use of a “deadly weapon.” See, 

e.g., DeAnda v. State, 769 S.W.2d 522, 524 (Tex. Crim. App. 1989); Vaughn v. State, 600 

S.W.2d 314, 315 (Tex. Crim. App. 1980).

4 Boston is not the only Texas case to hold that an air gun or an air rifle can be a 

firearm. In Shelton v. State, 10 S.W.3d 689, 696 (Tex. App. 1999), another state appellate 

court applied the definition of firearm in TPC § 46.01(3) to reject a defendant’s argument that 

his air gun was not a firearm and therefore affirmed the defendant’s conviction for 

aggravated robbery.

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provision that Castillo-Rivera challenges as overbroad, and it did so in a way 

that federal law would not have allowed; Mr. Boston is currently serving a 

protracted prison sentence as a direct result of that application. 

Faced with Boston, the majority opinion again utilizes a mutated version 

of Duenas-Alvarez to save the day and hold that Castillo-Rivera fails to make 

the required showing. First, the majority opinion states that “Boston did not 

hold as a matter of law that the Texas definition of firearm includes air guns” 

but instead merely “made a sufficiency-of-the-evidence determination.” Maj. 

Op. at 13. Thus, the majority opinion continues, “the court did not decide if an 

air gun is a firearm under TPC § 46.01.” Id. (emphasis in original).

Respectfully, this reasoning is nonsensical. The Boston court concluded 

that “the evidence [was] legally sufficient to prove the air rifle used in this case 

was a firearm, as that term is defined in chapter 46,” based on testimony that 

“there is an explosion . . . whenever the compressed air in an air rifle is 

released” and the statutory definition, under which a device qualifies as a 

firearm if it is designed to expel a projectile “by using the energy generated by 

an explosion or burning substance.” 1998 WL 19938, at *2 (emphasis in 

original). This is a legal determination par excellence: the court concluded that 

TPC § 46.01’s definition of “firearm” can include air guns. How else could the 

court find that the evidence was “legally sufficient”? See id. There is no 

requirement that the relevant state case hold that the particular 

circumstances the defendant suggests will always, “as matter of law,” satisfy 

state law requirements; it simply has to illustrate that they can. See DuenasAlvarez, 549 U.S. at 193. 

Next, the majority opinion contends that Boston “had nothing to do with 

TPC § 46 whatsoever” and “did not deal with TPC § 46.04 at all.” Maj. Op. at 

13. This contention is disingenuous. The Boston court’s construction of TPC 

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§ 46.01(3)’s definition of “firearm” determined the outcome of that case, and 

that specific provision provides an integral part of Castillo-Rivera’s statute of 

conviction, TPC § 46.04. See 1998 WL 19938, at *2. As previously explained, 

Texas courts commonly use this definition to determine whether a particular 

weapon counts as a “firearm” in the context of offenses involving the use of a 

“deadly weapon.” See, e.g., DeAnda, 769 S.W.2d at 524; Vaughn, 600 S.W.2d 

at 315. 

The Supreme Court has required that the defendant point to a case “in 

which the state courts in fact did apply the statute in the special . . . manner 

for which he argues.” See Duenas-Alvarez, 549 U.S. at 193. Castillo-Rivera 

points to a state appellate court case that held that TPC § 46.01(3)’s definition 

of “firearm,” which governs his TPC § 46.04 offense, can include air rifles and 

therefore affirmed an air-rifle-wielding defendant’s conviction. Nothing more 

is required. See Castillo v. Holder, 776 F.3d 262, 268 (4th Cir. 2015) (“[T]o the 

extent that the statutory definition of the prior offense has been interpreted by 

the state’s appellate courts, that interpretation constrains our analysis of the 

elements of state law.” (citation and internal quotation marks omitted)); see 

also De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015) (similar). 

Accordingly, the state statute’s definition of “firearm” is broader than the 

federal definition, and the state offense therefore covers conduct outside the 

scope of the federal offense. For this reason, too, TPC § 46.04 is not “described 

in” 18 U.S.C. § 922(g)(1) and does not constitute an aggravated felony.

***

TPC § 46.04 is broader than its federal counterpart for two 

independently sufficient reasons. The majority opinion ignores this and 

attempts to veil its misguided analysis with Duenas-Alvarez, but that case 

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simply does not support the majority opinion’s holding. I therefore respectfully 

dissent.

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STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting 

in part:

I concur in Section III.B of the majority opinion, in Section I of Judge 

Dennis’s dissenting opinion, and in full in Judge Smith’s dissenting opinion. 

Because “felony” under Texas Penal Code § 46.04 is defined more broadly than, 

hence not “defined in,” 18 U.S.C. § 922(g)(1), I agree with Judge Dennis’s 

dissenting opinion that Texas Penal Code § 46.04 cannot be an “aggravated 

felony” under the Sentencing Guidelines. Although I have applied the 

“realistic-probability” test announced in Duenas-Alvarez,1 I agree with Judge 

Dennis’s dissenting opinion that this added showing is unnecessary when a 

state statute is facially broader than its federal analog.

Fundamentally, this case highlights the incongruities inherent in the 

categorical approach. Congress did not intend to subject all federal felons in 

possession of a firearm to a recidivist sentencing enhancement but to include 

none from Texas. This paradoxical result—what scholars call the “windfall” 

problem—is a consequence of the judicially crafted categorical framework, 

which cannot be harmonized with congressional intent, and thus

unsurprisingly continues to trouble courts, including the Supreme Court. 

Compare Descamps v. United States, 133 S. Ct. 2276 (2013), with Mathis v. 

United States, 136 S. Ct. 2243 (2016). Our ongoing struggle to apply the 

categorical approach while respecting the congressional purpose to enhance 

punishment for similar recidivists may justify Supreme Court intervention yet 

 

1 As the author of United States v. Lara-Martinez, I question how this decision stands

for the rule that a defendant must always point to a state-court case as evidence of a state 

crime’s broader sweep. 836 F.3d 472 (5th Cir. 2016). In Lara-Martinez, we addressed a state 

statute that was plainly narrower than the comparable categorical offense. Id. at 476

(contrasting the categorical crime of violence of “sexual abuse of a minor,” where federal law 

defines “minor” as a person under 18, with Missouri’s offense of “sexual misconduct involving 

a child,” where Missouri defines “child” as a person under 15).

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again. See Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (“[C]ontinued 

congressional inaction in the face of a system that each year proves more 

unworkable should require this Court to revisit its precedents in an 

appropriate case.”). In the meantime, it is further unsurprising that courts 

will stretch the realistic-probability test of Duenas-Alvarez more and more to 

bridge the chasm between congressional intent and judicial doctrine.

The Supreme Court has not yet addressed the elasticity we face here: is 

the realistic-probability test of Duenas-Alvarez not only a means of 

interpreting an ambiguous state statute, but the rule in every case? In both 

Mathis and Taylor, however, the Court has at least suggested it’s not. Mathis, 

136 S. Ct. at 2250 (finding Iowa’s burglary statute broader than generic 

burglary based only on its text without resort to Iowa caselaw); Taylor v. 

United States, 495 U.S. 575, 559-600 (1990) (finding Missouri’s second-degree 

burglary statute broader than generic burglary based only on its text without 

resort to Missouri caselaw). I am apprehensive that the majority’s absolute 

requirement in every case2—a rule Judge Dennis’s dissenting opinion

demonstrates is in tension with at least four other circuits and also conflicts 

with considerable precedent of our own3—additionally places an impractical 

burden on defendants without access to the required information. With most 

criminal prosecutions ending in plea agreements and putative charges driving 

 

2 “[A] defendant must point to an actual state case applying a state statute in a 

nongeneric manner, even where the state statute may be plausibly interpreted as broader on 

its face.” Majority Op. at 8 n.3.

3 See also United States v. Najera-Mendoza, 683 F.3d 627, 630 (5th Cir. 2012) (finding 

Oklahoma’s kidnapping statute broader than generic kidnapping based only on its text 

without resort to Oklahoma caselaw); United States v. Bonilla, 524 F.3d 647, 654-55 (5th Cir. 

2008) (finding New York’s attempted manslaughter statute broader than generic 

manslaughter based only on its text without resort to New York caselaw); United States v. 

Fierro-Reyna, 466 F.3d 324, 326 (5th Cir. 2006) (finding Texas’s aggravated assault statute 

broader than generic assault based only on its text without resort to Texas caselaw).

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plea negotiations, the conduct states define as criminal may not be expressed 

in appellate-level decisions, and the evidence required to satisfy the majority’s 

rule may thus be unavailable.

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