REVISED JULY 24, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________ 

No. 09-40529

Conference Calendar

___________________ 

UNITED STATES OF AMERICA,

 Plaintiff - Appellee

v.

BENNIE D. EMEARY, JR.,

 Defendant - Appellant

_______________________ 

Appeal from the United States District Court 

for the Eastern District of Texas

_______________________ 

JAMES L. DENNIS, Circuit Judge, in chambers:

“The Supreme Court has recognized that courts of appeals have an 

inherent power to recall their mandates.” Goodwin v. Johnson, 224 F.3d 450, 

459 (5th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 549 (1998)). 

“Our authority to recall our mandate is clear.” United States v. Tolliver, 116 

F.3d 120, 123 (5th Cir. 1997). “Nonetheless, the Supreme Court has instructed 

that we may exercise that power only upon a showing of ‘extraordinary 

circumstances.’ ” United States v. Fraser, 407 F.3d 9, 10 (1st Cir. 2005) (citing 

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2015

Lyle W. Cayce

Clerk

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No. 09-40529

2

Calderon, 523 U.S. at 550). In this circuit, the court’s mandate “will not be 

recalled except to prevent injustice.” 5TH CIR. R. 41.2. Under these standards, 

I conclude that the mandate in this criminal appeal of Bennie D. Emeary, Jr. 

shall be recalled. As I will explain, Emeary’s appointed attorney and this court 

both committed plain error in reviewing Emeary’s sentence and failing to 

notice that he was condemned to five more years of incarceration than the law 

allows. In my view, this plain error can and should be corrected.

On February 9, 2005, Emeary was indicted for illegally possessing 

firearms after having been convicted of a felony, which is generally punishable 

by a maximum term of ten years of imprisonment. 18 U.S.C. § 924(a)(2). 

However, if the defendant has previously been convicted of three “violent 

felonies” within the meaning of the Armed Career Criminal Act (“ACCA”), then 

the minimum term of imprisonment is fifteen years. § 924(e)(1). Under the 

ACCA, the definition of “violent felony” includes, in pertinent part, crimes that 

“[are] burglary, arson, or extortion, involve[] use of explosives, or otherwise 

involve[] conduct that presents a serious potential risk of physical injury to 

another.” § 924(e)(2)(B)(ii). Emeary’s indictment alleged that he had been 

convicted of three prior “violent felonies,” including, pertinent here, a 1998 

conviction in Texas for “burglary of a building.” The bill of information for the 

1998 conviction reveals that it was under § 30.02(a)(3) of the Texas Penal Code,

for “enter[ing] a building” “without the effective consent of the owner” and 

“commit[ing] or attempt[ing] to commit a felony or theft.”1

On May 25, 2005, pursuant to a plea agreement with the government, 

Emeary pleaded guilty to the illegal-possession-of-firearms charge. The 

district court sentenced Emeary on December 7, 2005. The court classified 

 1 The Texas statute has been amended since Emeary’s conviction and now prohibits 

entering a building or habitation without consent and committing or attempting to commit 

“a felony, theft, or an assault.” (Emphasis added.) The amendment is immaterial here.

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Emeary as subject to the ACCA’s fifteen-year minimum sentence because,

including the 1998 conviction under Texas Penal Code § 30.02(a)(3), he had 

been convicted of three “violent felonies.” The court sentenced Emeary to 

fifteen years of incarceration.

Emeary filed a notice of appeal on May 13, 2009.2 On September 14, 

2009, Emeary’s appointed attorney filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), representing that he had reviewed the case

and concluded that there were no nonfrivolous arguments to present on 

Emeary’s behalf. (In fact, he went further and represented that there was “no 

reversible error in this case.” Anders Br., at 24.) He therefore requested the 

court’s leave to withdraw as Emeary’s attorney. Under Anders, 386 U.S. at 

744, that triggered this court’s obligation to conduct “a full examination of all 

the proceedings [and] to decide whether the case is wholly frivolous.” On 

February 12, 2010, we concluded that there were no nonfrivolous issues

presented and dismissed the appeal. United States v. Emeary, 365 F. App’x 

552, 553 (5th Cir. 2010) (unpublished). The court’s mandate issued on March 

8, 2010. Both Emeary’s attorney and we made a serious omission, as I will 

explain.

Neither Emeary’s attorney in his Anders brief nor this court in our 

opinion dismissing Emeary’s appeal referenced United States v. Constante, 544 

F.3d 584 (5th Cir. 2008), which issued on October 6, 2008 and was thus 

established circuit precedent at the time of Emeary’s appeal. In Constante,

544 F.3d at 587, this court held that convictions under Texas Penal Code 

 2 The appeal was delayed because Emeary’s appointed attorney failed to timely 

initiate it, which the district court held amounted to unconstitutional ineffective assistance 

of counsel. To remedy the attorney’s failure and afford Emeary an appeal, the district court 

entered a “reinstated” judgment on May 1, 2009. Emeary’s May 13 notice of appeal is from 

the May 1 judgment. See United States v. Tapp, 491 F.3d 263 (5th Cir. 2007); United States 

v. West, 240 F.3d 456 (5th Cir. 2001).

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§ 30.02(a)(3) do not constitute “violent felony” convictions under the ACCA.3 

Emeary, of course, was sentenced to fifteen years of imprisonment based on his 

Texas Penal Code § 302.03(a)(3) conviction’s classification as a “violent felony” 

conviction.

On November 10, 2014, Emeary filed a motion with this court to recall 

the mandate in this appeal. He pointed to Constante and claimed that under 

it, his sentence was excessive and plainly erroneous. On December 8, 2014, I 

denied the motion, United States v. Emeary, 773 F.3d 619 (5th Cir. 2014), 

principally because I believed that it was unclear whether Texas Penal Code 

§ 30.02(a)(3) offenses may be deemed “violent felonies” by dint of falling under 

the so-called “residual clause” of the ACCA’s “violent felony” definition, an 

issue upon which Constante was not, in my estimation, crystal clear. (See

supra, note 3 for a full explanation of the issue.) On June 26, 2015, however, 

 3 I must note that the precise scope of Constante’s holding is reasonably debatable. 

The ACCA’s definition of “violent felony” includes crimes that “[are] burglary, arson, or 

extortion, involve[] use of explosives, or otherwise involve[] conduct that presents a serious 

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Constante’s express 

analysis addresses whether Texas Penal Code § 30.02(a)(3) offenses constitute “burglaries”

under the “violent felony” definition, and Constante clearly answers “no.” But did Constante

also decide whether such offenses constitute ACCA “violent felonies” because they fall under 

the so-called “residual clause” of the “violent felony” definition—i.e., because they “otherwise 

involve[] conduct that presents a serious potential risk of physical injury to another”?

Theoretically, a state offense may constitute a “violent felony” because it falls under the 

residual clause even though it doesn’t constitute a “burglary.” See James v. United States, 

550 U.S. 192, 212 (2007) (the residual clause “can cover conduct that is outside the strict 

definition of, but nevertheless similar to, generic burglary”). In United States v. Ramirez, 

507 F. App’x 353, 354 (5th Cir. 2013) (unpublished), this court read Constante narrowly and 

construed it as holding only that the Texas offense does not constitute a “burglary,” thus 

leaving as an open question whether it falls under the residual clause. Subsequently, though, 

in United States v. St. Clair, No. 14-50287, 2015 WL 1611666, at *3 n.2 (5th Cir. Apr. 13, 

2015) (unpublished), this court rejected Ramirez and read Constante more broadly as 

“clearly” holding that the Texas offense is neither a “burglary” nor encompassed within the 

residual clause. In any event, the scope of Constante is academic now that the Supreme Court 

has held that the residual clause is unconstitutional and unenforceable. See Johnson v. 

United States, 135 S. Ct. 2551 (2015). Per Constante, the offense is not a “burglary.” Per 

Johnson, the residual clause is irrelevant.

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the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015), 

that the residual clause of the “violent felony” definition is vague, 

unconstitutional, and unenforceable. Post-Johnson, it is now clear without any 

room for doubt that Texas Penal Code § 30.02(a)(3) offenses are not “violent 

felonies” under the ACCA, period. (And, there is reason to think that such 

conclusion was “plain” before Johnson, too, under Constante alone. See United 

States v. St. Clair, No. 14-50287, 2015 WL 1611666, at *3 n.2 (5th Cir. Apr. 13, 

2015) (unpublished).) On July 6, 2015, Emeary filed the present renewed 

motion to recall the mandate.

To summarize, Emeary was sentenced to fifteen years of incarceration 

because the district court erroneously classified his prior Texas Penal Code 

§ 30.02(a)(3) conviction as a “violent felony” conviction under the ACCA. 

Emeary should not have been sentenced to more than ten years of 

incarceration, the correct statutory maximum. His attorney should have 

appealed the erroneous sentence. 

To be fair and complete, Emeary’s plea agreement did include an appeal 

waiver. There are, however, recognized exceptions to appeal waivers. See

United States v. Batamula, 788 F.3d 166, 169 n.5 (5th Cir. 2015) (government 

forfeited the right to enforce the appeal waiver); United States v. Powell, 574 

F. App’x 390, 394 (5th Cir. 2014) (unpublished) (explaining that other circuits 

have created a “miscarriage-of-justice” exception to the enforceability of appeal 

waivers but this circuit has not yet decided whether to join them); United 

States v. De Cay, 359 F. App’x 514, 516 (5th Cir. 2010) (unpublished) (same).

Emeary’s attorney, under his duty to act “zealous[ly] for the indigent’s 

interests,” Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000), should have 

pressed to avoid the appeal waiver, but he failed to do so. See also Anders, 386 

U.S. at 744 (“[Counsel’s] role as advocate requires that he support his client’s 

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appeal to the best of his ability.”). At the very least, the potential for avoiding 

the appeal waiver barring Emeary from appealing his plainly erroneous 

sentence is a “possibly important issue” that should have been, but was not, 

identified in the Anders brief. See United States v. Garland, 632 F.3d 877, 879 

(5th Cir. 2011) (quoting United States v. Johnson, 527 F.2d 1328, 1329 (5th 

Cir. 1976)). In fact, in Garland, 632 F.3d at 880, we faulted the attorney’s 

Anders brief in that case for failing to “provide[] . . . facts about [the 

defendant’s] prior convictions [and an] assessment of the validity of [a] 

challenge to [how those prior convictions affected the defendant’s sentence].” 

Nor did the deficient Anders brief address the defendant’s “characterization as 

a career offender.” Id. So too here. By Garland’s standards, the Anders brief 

in this case was inadequate. But, we accepted it, erroneously.

Simply stated, the district court committed plain error by sentencing

Emeary to fifteen years of incarceration when the statutory maximum was ten, 

and this court committed plain error when we deemed Emeary’s appeal

frivolous and dismissed it without any notice of the issue. The Supreme Court 

has recognized that, while the Anders process is intended “to ensure that rights 

are not forgone and that substantial legal and factual arguments are not 

inadvertently passed over,” Penson v. Ohio, 488 U.S. 75, 85 (1988), the process

is imperfect and cannot “eliminate all risk of error,” Smith, 528 U.S. at 277 n.8. 

That acknowledgment demands a concomitant willingness of courts to correct 

plain errors that escaped notice, at least in some circumstances. In my view, 

those circumstances are present here. A criminal defendant should not be 

unlawfully condemned to five excessive years in prison—a “drastic loss of 

liberty,” Penson, 488 U.S. at 85—based on the sort of clear and obvious error 

we made in this case.

The renewed motion to recall the mandate is GRANTED, the court’s 

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mandate is RECALLED, the appeal is REINSTATED and EXPEDITED, and 

the defendant is APPOINTED counsel.4

IT IS SO ORDERED.

 4 In addition to any other issues Emeary’s counsel will deem pertinent, the attorney 

should address the following questions. First, does the government intend to enforce the 

appeal waiver in Emeary’s plea agreement? See United States v. Acquaye, 452 F.3d 380, 381-

82 (5th Cir. 2006) (defense counsel has the duty to determine such). If so, second, is the 

appeal waiver enforceable in the circumstances of this case? See Powell, 574 F. App’x at 394 

(discussing “miscarriage-of-justice” exception to the enforceability of appeal waivers); De Cay, 

359 F. App’x at 516 (same). Third, does Calderon v. Thompson, 523 U.S. 538, 554 (1998)

(even when the Antiterrorism and Effective Death Penalty Act is inapplicable, “a court of 

appeals must exercise its discretion in a manner consistent with the objects of the statute”), 

preclude this court from granting relief to Emeary? See Emeary, 773 F.3d at 621-22 

(discussing the issue). The government, in its response, should address whether the 

arguments it offers were forfeited when it failed to substantively respond to Emeary’s 

motions to recall the mandate. See Perez v. Stephens, 784 F.3d 276, 282-83 (5th Cir. 2015) 

(forfeiture by failure to timely raise an issue).

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