IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41467

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

NOEL LERMA, 

 Defendant – Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

Before DAVIS, GRAVES, and COSTA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

The question presented in this case is whether a conviction under the 

Texas aggravated robbery statute, Texas Penal Code § 29.03, qualifies as a 

“violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 

§ 924(e). Concluding that the statute is divisible, and that the crime for which 

appellant, Noel Lerma, was convicted previously at least three times is a 

“violent felony” under the ACCA, we AFFIRM. 

I.

The ACCA provides for a 15-year mandatory minimum term of 

imprisonment and a five-year maximum term of supervised release for those

defendants convicted of being a felon in possession of a firearm following three 

United States Court of Appeals

Fifth Circuit

FILED

December 14, 2017

Lyle W. Cayce

Clerk

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2

prior convictions for a “violent felony.” § 924(e)(1). Absent that sentence 

enhancement, the felon-in-possession statute sets a 10-year maximum prison 

sentence and a three-year maximum supervised release term. See § 924(a)(2); 

18 U.S.C. § 3583(b)(2).

In 1998, Lerma entered into a plea agreement with the United States

wherein he admitted to being a felon in possession of a firearm in violation of 

18 U.S.C. § 922(g)(1). In a subsequent modified plea agreement, Lerma agreed 

to be sentenced to 15 years in prison “as an Armed Career Offender pursuant 

to 18 U.S.C. § 924(e).” Lerma did not appeal his sentence, and, in fact, he 

completed his 15-year prison term in 2013. However, Lerma has not begun to 

serve his five years of supervised release because he remains in federal prison, 

serving a 20-year consecutive sentence for unrelated drug charges. 

Lerma now seeks to vacate, set aside, or correct his ACCA sentence 

pursuant to 28 U.S.C. § 2255 based upon the following. In 2015, the Supreme 

Court struck down the ACCA’s “residual clause” as void for vagueness in 

Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015). Pre-Johnson, the 

ACCA defined the term “violent felony” as any crime punishable by a term of 

imprisonment exceeding one year that also: 

(i) has as an element the use, attempted use, or threatened use 

of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential 

risk of physical injury to another.

§ 924(e)(2)(B). The “residual clause” is the last phrase of § 924(e)(2)(B)(ii):

“otherwise involves conduct that presents a serious potential risk of physical 

injury to another.”

Johnson did “not call into question application of the Act to the four 

enumerated offenses” listed in § 924(e)(2)(B)(ii), nor did it call into question 

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any aspect of § 924(e)(2)(B)(i), also known as the “force clause.” 135 S. Ct. at 

2563. Thus, post-Johnson, the ACCA defines the term “violent felony” as any 

crime punishable by a term of imprisonment exceeding one year1 that also:

(i) has as an element the use, attempted use, or threatened use 

of physical force against the person of another; or

(ii) is burglary, arson, extortion, or involves the use of 

explosives. 

In 2016, the Supreme Court held that its decision in Johnson announced 

a substantive rule that applies retroactively on collateral review. Welch v. 

United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016). Lerma, therefore,

argues that his sentence imposed under the ACCA cannot stand.2 His 

argument is three-fold. First, he asserts that his sentence could not have 

constitutionally rested upon the residual clause in light of Johnson and Welch. 

Second, he contends that his prior convictions were not for burglary, arson, or 

extortion, nor did they involve the use of explosives, as required by 

§ 924(e)(2)(B)(ii). Third, he argues that the Texas aggravated robbery statute, 

Texas Penal Code § 29.03, does not satisfy the force clause because it does not

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

against the person of another.” See § 924(e)(2)(B)(i).

The Government concedes that Lerma’s sentence could not have 

constitutionally rested upon the residual clause in light of Johnson and Welch. 

The Government also concedes that Lerma’s prior convictions were not for any 

 

1 There is no dispute that Lerma’s prior convictions for aggravated robbery under 

Texas Penal Code § 29.03 carried prison terms exceeding one year. See TEX. PENAL CODE

§ 29.03(b) (noting that aggravated robbery “is a felony of the first degree”); TEX. PENAL CODE

§ 12.32(a) (“An individual adjudged guilty of a felony of the first degree shall be punished by 

imprisonment in the Texas Department of Criminal Justice for life or for any term of not 

more than 99 years or less than 5 years.”).

2 Lerma is potentially entitled to § 2255 relief with respect to the supervised release 

portion of his sentence, as well as the date for his ultimate release from prison. 

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of the four enumerated offenses listed in § 924(e)(2)(B)(ii). The only question 

then is whether Lerma’s sentence can be sustained pursuant to the ACCA’s 

force clause. That is, does the crime under the Texas aggravated robbery 

statute for which Lerma was previously convicted at least three times “ha[ve] 

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

against the person of another”?

The district court answered that question in the affirmative and denied 

Lerma’s § 2255 motion. From that denial, and the district court’s subsequent 

issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253, Lerma 

now appeals.3 As set forth below, we also conclude that the crime under Texas 

Penal Code § 29.03 for which Lerma was previously convicted at least three 

times qualifies as a violent felony under the force clause of the ACCA because 

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

against the person of another. 

II.

A.

The issue presented by this case requires us first to determine the 

elements of aggravated robbery under Texas Penal Code § 29.03. The Supreme 

Court instructs that “[e]lements are the constituent parts of a crime’s legal 

definition—the things the prosecution must prove to sustain a conviction.” 

Mathis v. United States, --- U.S. --- , 136 S. Ct. 2243, 2248 (2016) (internal 

quotation marks and citation omitted). “At a trial, they are what the jury must 

 

3 Although Lerma has completed the 15 years of imprisonment imposed as part of his 

sentence under the ACCA, he remains in prison serving the 20 years of imprisonment 

imposed as part of his sentence for federal drug-related crimes. Upon his release, Lerma 

must complete five years of supervised release as part of his sentence under the ACCA. 

Under these circumstances, Lerma is considered “in custody” for his ACCA conviction, and 

this Court, thus, has jurisdiction under § 2255 to consider on collateral review Lerma’s 

challenge to his ACCA sentence.

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find beyond a reasonable doubt to convict the defendant.” Id. at 2248 (citations 

omitted). “[A]t a plea hearing, they are what the defendant necessarily admits 

when he pleads guilty.” Id. (citation omitted).

An element of a crime must be distinguished from the means of 

satisfying a single element. See id. at 2249-51. For example, a statute may 

require the use of a “deadly weapon” as an element of a crime. The statute 

may then further list as potential deadly weapons a knife, gun, bat, or similar 

weapon. That “list merely specifies diverse means of satisfying a single 

element of a single crime.” Id. at 2249. A jury need not find any particular 

weapon in the list was used in order to convict, so long as all of the jurors 

agreed that the defendant used a deadly weapon. See id. 

B.

Criminal statutes are indivisible or divisible. An indivisible statute sets 

out a single set of elements to define a single crime. In contrast, a divisible 

statute “list[s] elements in the alternative, and thereby define[s] multiple 

crimes.” Id. at 2249. If a statute is indivisible, the sentencing court must apply 

the “categorical approach.” See id. at 2248. This approach requires the 

sentencing court, when determining whether a crime qualifies as a violent 

felony under the force clause, to focus solely on whether the elements of the 

crime of conviction include the use, attempted use, or threatened use of 

physical force against the person of another. See id. The sentencing court is 

not permitted to review the particular facts of the case. Id. 

When a statute is divisible, however, the sentencing court may use the 

“modified categorical approach” to determine which elements played a part in 

the defendant’s conviction. Id. at 2253. The modified approach serves “as a 

tool to identify the elements of the crime of conviction when a statute’s 

disjunctive phrasing renders one (or more) of them opaque.” Id. (citation 

omitted). Under that approach, the sentencing court is allowed to look “to a 

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limited class of documents (for example, the indictment, jury instructions, or 

plea agreement and colloquy) to determine what crime, with what elements, a 

defendant was convicted of.” Id. at 2249 (citations omitted). The court can 

then determine, in deciding whether the crime satisfies the force clause, if one 

of those elements included the use, attempted use, or threatened use of 

physical force against the person of another.

In this case, the district court began its analysis by noting that the 

parties had “agreed that the Texas aggravated robbery statute was a divisible

statute for which the modified categorical approach was appropriate.” The 

district court then went on to analyze the statute as a divisible statute, 

implicitly determining that the statute was divisible. 

C.

Review of the district court’s divisibility determination would generally 

represent a question of law that we would review de novo. See United States 

v. Olvera, 775 F.3d 726, 729 (5th Cir. 2015). The Government, however, asserts

that “Lerma invited any error” as to the district court’s divisibility analysis and 

that, consequently, we should review the district court’s determination for only 

manifest injustice.

The invited error doctrine stands for the basic proposition that “[a] 

defendant may not complain on appeal of errors that he himself invited or 

provoked the district court to commit.” See United States v. Salazar, 751 F.3d 

326, 332 (5th Cir. 2014). “Statements amounting to invited error are a species 

of waiver” and generally evince an “intent” by the speaker to convince “the 

district court to do [something that] it would not otherwise have done.” See

United States v. Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015) (internal 

quotation marks and citations omitted). Compare United States v. MoralesRodriguez, 788 F.3d 441, 443 n.3 (5th Cir. 2015) (holding that a defendant did 

not invite error as to his sentence even though he failed to object to it in the 

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district court and even though he stated that his PSR was correct), with United 

States v. Roussel, 705 F.3d 184, 193 (5th Cir. 2013) (holding that a defendant 

invited error regarding the issuance of a Rule 404(b) jury instruction because 

he requested the introduction of the prior acts evidence necessitating issuance 

of the instruction). “Invited error imposes an even higher standard than does 

plain-error review: We will not reverse on the basis of invited error, absent 

manifest injustice.” Salazar, 751 F.3d at 332.

As stated above, the district court began its opinion by noting that the 

parties had agreed at the § 2255 hearing that the Texas aggravated robbery 

statute was divisible and that, thus, the modified categorical approach could 

be applied. A transcript of the hearing reads as follows:

THE COURT: Now the parties agreed that the statute is divisible?

THE GOVERNMENT: Yes, Your Honor.

THE COURT [referring to defense counsel]: Do you agree with 

that?

DEFENSE COUNSEL: The robbery – or the aggravated robbery 

statute?

THE COURT: Both of them. Robbery and aggravated robbery.

DEFENSE COUNSEL: Your honor, I looked through that last 

night and I was looking at the Mathis case. I think [the Texas 

aggravated robbery statute, by virtue of its incorporation of the 

Texas robbery statute,] would probably be divisible under Mathis. 

. . . 

THE COURT: Okay. Government agree?

THE GOVERNMENT: Yes, Your Honor. 

We do not construe defense counsel’s equivocal concession as inviting 

error. See United States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016) (“We 

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narrowly construe counsel’s statements in applying the invited error 

doctrine.”). Indeed,

A defendant’s failure to object to a district court’s proposed jury 

instruction, or even the affirmative statement, “No, Your Honor,” 

in response to the court’s query “Any objection?”, is not the same 

as a defendant who proffers his or her own instruction, persuades 

the court to adopt it, and then later seeks to attack the sufficiency 

of that instruction [on appeal].

United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012). Because 

Lerma did not invite any alleged divisibility error, we review the district court’s 

divisibility analysis de novo. See Olvera, 775 F.3d at 729.

III.

A.

The Texas aggravated robbery statute provides, in pertinent part: 

(a) A person commits [aggravated robbery in Texas] if he commits 

robbery as defined in [Texas Penal Code] Section 29.02, and

he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or 

places another person in fear of imminent bodily injury or 

death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first degree.

TEX. PENAL CODE § 29.03 (emphases added). 

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The Texas robbery statute, which is incorporated into the first paragraph 

of the aggravated robbery statute, provides the following:

(a) A person commits [robbery in Texas] if, in the course of 

committing theft . . . and with intent to obtain or maintain

control of the property, he:

(1) Intentionally, knowingly, or recklessly causes bodily injury 

to another, or 

(2) Intentionally or knowingly threatens or places another in 

fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second degree.

TEX. PENAL CODE § 29.02(a).

On its face, the Texas aggravated robbery statute requires that a 

defendant commit robbery and meet one of several other requirements to be 

convicted of aggravated robbery. The first paragraph of the statute is not 

alternatively phrased, but rather requires robbery plus something else to 

commit aggravated robbery. Specifically, a defendant may be convicted of 

aggravated robbery under § 29.03(a)(1) if he commits robbery and causes 

serious bodily injury to another. Both robbery and serious bodily injury are

elements because both are required to obtain a conviction for aggravated 

robbery under § 29.03(a)(1). Thus, the aggravated robbery statute sets forth 

one crime under § 29.03(a)(1), requiring robbery and serious bodily injury. See

Appendix, “Crime No. 1” under § 29.03(a)(1).

Under § 29.03(a)(2), robbery is again an element as set forth in the first 

paragraph. The additional requirement is that the defendant “uses or exhibits 

a deadly weapon.” § 29.03(a)(2) (emphasis added). This provision is 

alternatively phrased, so the issue becomes whether the alternatives are 

elements of a crime under § 29.03(a)(2) or the means of satisfying a single 

element. See Mathis, 136 S. Ct. at 2249, 2256. On the face of the statute, the 

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alternatives of “using” a deadly weapon or “exhibiting” a deadly weapon cannot 

be means because they are not listed as ways of satisfying a single element. 

Rather, they each are alternative elements under § 29.03(a)(2). Thus, 

§ 29.03(a)(2) sets forth two crimes: aggravated robbery in which the defendant 

commits robbery and uses a deadly weapon, and aggravated robbery in which 

the defendant commits robbery and exhibits a deadly weapon. See Appendix, 

“Crime No. 2” and “Crime No. 3” under § 29.03(a)(2).

Finally, under § 29.03(a)(3), robbery is again an element as set forth in 

the first paragraph. The additional requirement in order to commit aggravated 

robbery under § 29.03(a)(3) is the status of the victim (“the other person”). 

Specifically, the victim of the robbery must be “65 years of age or older; or a 

disabled person.” § 29.03(a)(3)(A) & (B). This provision is alternatively 

phrased, so the issue again becomes whether the alternatives are elements or 

means of satisfying a single element. On the face of the statute, the 

alternatives are listed as the means of satisfying the single element of the 

status of the victim under § 29.03(a)(3). Thus, § 29.03(a)(3) of the aggravated 

robbery statute sets forth one crime requiring robbery and the status of the 

victim. See Appendix, “Crime No. 4” under § 29.03(a)(3).

Based on the language of the statute, and applying the definitions of 

“elements of a crime” and “means of an element” as set forth by the Supreme 

Court in Mathis, we conclude that the Texas aggravated robbery statute is 

divisible. 

Lerma submits, however, that Texas law provides otherwise. He asserts 

that Cooper v. State, 430 S.W.3d 426 (Tex. Crim. App. 2014), establishes that 

the Texas aggravated robbery statute is indivisible. In Cooper, the Texas Court 

of Criminal Appeals held that two of the defendant’s five aggravated robbery 

convictions violated the double jeopardy clause of the Fifth Amendment. See

430 S.W.3d at 427. However, Cooper did not interpret the Texas aggravated 

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robbery statute. Cooper simply held that a defendant cannot be convicted of 

robbing the same person twice at the same time – once by threat and once by 

force. Cooper did not address the question that we now face: whether the Texas 

aggravated robbery statute is a divisible statute, setting forth alternative 

elements and thereby defining multiple crimes.4

Because the Texas aggravated robbery statute is divisible, we proceed 

to apply the modified categorical approach. 

B.

The modified categorical approach “permits a court to determine which 

statutory phrase was the basis for the conviction by consulting the trial record.” 

Johnson v. United States, 559 U.S. 133, 144 (2010) (Johnson II). The court 

may refer to the “charging documents, plea agreements, transcripts of plea 

colloquies, findings of fact and conclusions of law from a bench trial, and jury 

instructions and verdict forms.” Id. (citations omitted). In this case, the record 

contains Lerma’s juvenile order of commitment wherein Lerma was “found to 

have engaged in delinquent conduct.” Specifically, Lerma was found to have:

while in the course of committing theft of beer and money, 

hereinafter called “the property,” from [victim], with intent to 

obtain and maintain control of the property, using and exhibiting 

 

4 Contrary to Lerma’s assertions, the decisions from the Texas Court of Appeals in 

Woodard v. State, 294 S.W.3d 605 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), and 

Burton v. State, 510 S.W.3d 232 (Tex. App.—Fort Worth 2017, no pet.), are not helpful in the 

divisibility determination. The court in Woodard used the term “means” in a different way 

than the Mathis court. Specifically, the court concluded that the “aggravating factors [of 

§ 29.03] are simply descriptions or means by which the underlying offense of robbery by 

causing bodily injury can be committed.” See Woodard, 94 S.W.3d at 609. When the court 

used the word “means,” it did not do so in relation to satisfying a single element of a crime,

as Mathis requires. Rather, the Woodard court appears to have used the word “means” to 

describe the various crimes set forth in the aggravated robbery statute. See, e.g., Appendix 

(setting forth various crimes constituting aggravated robbery under § 29.03). In Burton, the 

court held that “causing bodily injury or threatening the victim are different methods of 

committing the same offense.” 510 S.W.3d at 232. It is unclear whether the court was 

referring to the elements of a crime, the means of satisfying a single element, or the crimes 

set forth by a statute under a Mathis analysis. 

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a deadly weapon, namely, a gun, knowingly and intentionally 

threaten and place [victim] in fear of imminent bodily injury or 

death . . . on or about February 11, 1979.

The Order of Commitment further provides that Lerma was found to have:

On or about February 17, 1979, while in the course of 

committing theft of beer and money, hereinafter called “the 

property,” from [victim], with intent to obtain and maintain 

control of the property, using and exhibiting a deadly weapon, 

namely, a gun, knowingly and intentionally threaten and place 

[victim] in fear of imminent bodily [injury] or death.

The indictment charging Lerma with his first aggravated robbery as an 

adult alleged the following:

On or about July 10, 1990, . . . [Lerma] did then and there 

while in the course of committing theft of property and with the 

intent to obtain and maintain control over the property, 

intentionally and knowingly threaten [victim] with and place her 

in fear of imminent bodily injury and death by using and exhibiting 

a deadly weapon, namely a firearm.

Lerma’s subsequent judicial confession and stipulation tracked the exact 

language of the indictment. 

The indictment charging Lerma with his second aggravated robbery as 

an adult alleged the following:

On or about March 4, 1991, . . . [Lerma] did then and there 

while in the course of committing theft of property and with the 

intent to obtain and maintain control over the property, 

intentionally and knowingly threaten [victim] with and place him 

in fear of imminent bodily injury and death by using and exhibiting 

a deadly weapon, namely a knife, which in the manner of its use 

and intended use was capable of causing death and serious bodily 

injury.

Lerma’s subsequent judicial confession and stipulation tracked the exact 

language of the indictment. 

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Each of Lerma’s prior convictions involved his commission of a robbery 

(intentionally and knowingly threatening the victim with and placing the 

victim in fear of imminent bodily injury and death), and his using and 

exhibiting a deadly weapon. These elements are the same elements of

aggravated robbery under § 29.03(a)(2). See Appendix, “Crime No. 2” and 

“Crime No. 3” under § 29.03(a)(2). Thus, under the modified categorical 

approach, we determine that Lerma’s prior convictions were based on 

§ 29.03(a)(2) of the Texas aggravated robbery statute. The only question 

remaining is whether aggravated robbery under § 29.03(a)(2) “has as an 

element the use, attempted use, or threatened use of physical force against the 

person of another” such that it qualifies as a “violent felony” under the force 

clause of the ACCA. See § 924(e)(2)(B)(i).

The Supreme Court has instructed that the meaning of “physical force” 

in the ACCA’s force clause “is a question of federal law, not state law.” 

Johnson II, 559 U.S. at 138. In Johnson II, the Court provided the meaning of 

“physical force” under the force clause of the ACCA. Specifically, the Court 

held that “’physical force’ means violent force—that is, force capable of causing 

physical pain or injury to another person.” Id. at 140 (citation omitted).

There can be no question that a crime under Texas Penal Code 

§ 29.03(a)(2), that is, threatening someone with imminent bodily injury or 

death, or placing someone in fear of such, while using or exhibiting a deadly 

weapon in the course of committing theft with intent to obtain or maintain 

control of the property, has as an element the threatened use of physical force 

against the person of another. See United States v. Ovalle-Chun, 815 F.3d 222,

227 (5th Cir. 2016) (holding that “a person who intends to, and does, place 

another in fear of imminent physical injury by displaying what appears to be 

a deadly weapon has communicated an intent to inflict physical harm and, 

thus, threatened the use of force”). Therefore, Lerma’s prior convictions for 

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aggravated robbery under Texas Penal Code § 29.03(a)(2) qualify as “violent 

felonies” under the force clause of the ACCA. 

Lerma argues, however, that under Texas law, the defendant’s use or 

exhibition of the deadly weapon need not play any part in accomplishing the 

threat or placing the victim in fear, as shown by the court’s decision in Boston 

v. State, 410 S.W.3d 321, 326-27 (Tex. Crim. App. 2013). In Boston, the victim 

of the aggravated robbery testified that “she never saw the firearm” used by 

the offender. However, a video of the crime showed that the offender “briefly 

pointed [the firearm] at the [victim], and set it on the counter pointed at the 

[victim].” Boston, 410 S.W.3d at 323. Under such circumstances, the crime of 

aggravated robbery under § 29.03(a)(2) would still qualify as a violent felony 

under the force clause, for there can be no question that pointing a gun at 

someone is an attempt to use physical force against the person of another. 

Thus, even under the scenario presented in Boston, the crime of aggravated 

robbery under § 29.03(a)(2) “has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” See 

§ 924(e)(2)(B)(i). 

Based on the foregoing, Lerma’s prior convictions for aggravated robbery 

under Texas Penal Code § 29.03(a)(2) qualify as violent felonies under the force 

clause of the ACCA. Consequently, Lerma is not entitled to any relief under

28 U.S.C. § 2255. The district court’s judgment is AFFIRMED.

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APPENDIX

Aggravated 

Robbery, 

Texas Penal 

Code § 29.03

Crime No. 1

§ 29.03(a)(1)

Robbery

Serious Bodily 

Injury

Crime No. 2 

§ 29.03(a)(2)

Robbery

Uses a Deadly 

Weapon

Crime No. 3 

§ 29.03(a)(2)

Robbery

Exhibits a 

Deadly Weapon

Crime No. 4 

§29.03(a)(3)

Robbery

Status of the 

Victim

65 or Older OR 

Disabled

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