United States v. Greer

20 F.4th 1071

UNITED STATES of America, Plaintiff—Appellee,

v.Desmond Howard GREER, Defendant—Appellant.

No. 19-11348

United States Court of Appeals, Fifth Circuit.

FILED December 20, 2021

Brian W. McKay, Esq., Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, Sherylynn Ann Kime-Goodwin, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant.

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Carl E. Stewart, Circuit Judge:

This sentencing appeal returns to us on remand from the United States Supreme Court after it issued its opinion in Borden v. United States , holding that offenses involving a mens rea of recklessness do not qualify as violent felonies under the Armed Career Criminal Act ("ACCA"). ––– U.S. ––––, 141 S. Ct. 1817, 1834, 210 L.Ed.2d 63 (2021). Since the district court did not have the benefit of this intervening Supreme Court authority at sentencing, resulting in an erroneous guidelines calculation, and because the Government has failed to show that the error was harmless, we VACATE Desmond Howard Greer's sentence and REMAND for reconsideration.

I. FACTUAL & PROCEDURAL BACKGROUND

In August 2019, Greer pled guilty to being a convicted felon in possession of a firearm. In the presentence investigation report ("PSR"), the probation officer applied a base offense level of 26 pursuant to U.S.S.G. § 2K2.1(a)(1) because Greer had two prior state court convictions for crimes of violence: (1) Assault Family Violence Impede Breath or Circulation, in violation of Texas Penal Code § 22.01(b)(2)(B) ; and (2) Assault Family Violence with Previous Convictions, in violation of Texas Penal Code § 22.01(b)(2)(A). See U.S.S.G. §§ 4B1.2(a), 2K2.1, comment. (n.1). Greer objected to the classification of his assault offenses as crimes of violence, arguing that the Texas statute may be violated through reckless conduct and that the statute encompasses actions that do not require touching. He acknowledged that his argument was foreclosed by this court's precedent, but he raised the objection to preserve it for further review. In December 2019, the district court overruled Greer's objections and sentenced him to the statutory maximum guideline term of imprisonment of 120 months, to run concurrently with any sentence imposed in a related state case, and three years of supervised release. Greer timely appealed his sentence.

In May 2020, a panel of this court granted the Government's motion for summary affirmance of Greer's sentence on grounds that his arguments on appeal were foreclosed by this court's precedent in United States v. Reyes-Contreras , 910 F.3d 169, 183 (5th Cir. 2018) (en banc) and United States v. Howell , 838 F.3d 489, 501–02 (5th Cir. 2016). Greer filed a petition for writ of certiorari with the Supreme Court in December 2020.

In June 2021, the Court issued its opinion in Borden , which held that "[o]ffenses with a mens rea of recklessness do not qualify as violent felonies under ACCA," because "[t]hey do not require, as ACCA does, the active employment of force against another person." 141 S. Ct. at 1834. Shortly thereafter in July 2021, the Court vacated and remanded Greer's sentence to this court for reconsideration in light of Borden. Both parties have since filed supplemental briefing and presented oral argument.

II. STANDARD OF REVIEW

Because Greer has preserved the only issue in his sentencing appeal, we conduct a de novo review and harmless error applies. See United States v. Johnson , 14 F.4th 342, 347 (5th Cir. 2021) (de novo review); United States v. Halverson , 897 F.3d 645, 651 (5th Cir. 2018) (application of harmless error). There are two ways that the Government can show harmless error if the district court has applied the wrong guidelines range. United States v. Guzman-Rendon , 864 F.3d 409, 411 (5th Cir. 2017). The first way is to show that the district court considered both ranges (the incorrect range and the correct range) and explained that it would have imposed the same sentence either way. Id. The second way, which is applicable in Greer's case, is used when the correct guidelines range was not considered and requires that "the proponent of the sentence convincingly demonstrate[ ] both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at the prior sentencing." Id. (citing United States v. Ibarra–Luna , 628 F.3d 712, 714 (5th Cir. 2010) ). To satisfy its "heavy" burden, the Government must "point to evidence in the record that will convince [the appellate court] that the district court had a particular sentence in mind and would have imposed it, notwithstanding the error." See United States v. Richardson , 676 F.3d 491, 511 (5th Cir. 2012) (alteration in original) (internal quotation marks omitted) (quoting Ibarra–Luna , 628 F.3d at 714 ); see also Halverson , 897 F.3d at 651.

III. DISCUSSION

Greer argues that his sentence should be vacated and remanded in light of Borden on grounds that the Government has failed to show harmless error. The Government counters that Borden has no effect on Greer's sentence because he would have received the same statutory-maximum sentence even if his base offense level had been lower. It contends that the district court's statements at sentencing demonstrated that Greer's current offense and elaborate criminal history necessitated the 120-month sentence that was imposed. If this court rejects its harmless error argument, however, "the [G]overnment acknowledges that Borden affects Greer's base offense level and that remand for resentencing is necessary." We address each of these arguments in turn.

When a defendant is convicted of being a felon in possession of a firearm,¹ U.S.S.G. § 2K2.1(a)(1) provides in pertinent part that a base offense level of 26 is applied if the defendant has two qualifying felony convictions of crimes of violence. For purposes of U.S.S.G. § 2K2.1, a crime of violence is defined by U.S.S.G. § 4B1.2(a) as a federal or state offense punishable by more than a year in prison that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," or (2) is an enumerated offense. U.S.S.G. §§ 4B1.2(a) ; 2K2.1, comment. (n.1).

Subsections (a)(1) and (b)(2)(B) of Texas Penal Code § 22.01 provide that a person commits the offense of assault by intentionally, knowingly, or recklessly causing bodily injury to another, including their spouse, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth. Likewise, subsections (a)(1) and (b)(2)(A) of Texas Penal Code § 22.01 provide that a person commits the offense of assault by intentionally, knowingly, or recklessly causing bodily injury to another, including their spouse, if it is shown on the trial of the offense that the defendant has been previously convicted of applicable offenses under the Code against a person whose relationship to the defendant falls under the qualifying sections of the Penal Code or Family Code.

In Howell , this court held that the Texas offense of assault family violence by impeding breathing or circulation " ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.’ " See Howell , 838 F.3d at 492 (internal quotation marks omitted) (quoting § 4B1.2(a)(1) ). On this basis, we determined in Howell that an assault as defined under Texas Penal Code § 22.01(a)(1) and (b)(2)(B) qualifies as a crime of violence for purposes of a § 2K2.1 enhancement. Id. at 501–02. We have also held en banc that the phrase "use of physical force" in the nearly-identical "crime of violence" definition in the former U.S.S.G. § 2L1.2(b)(1)(A)(ii) does not require that the use of force be intentional and therefore applies to knowing or reckless conduct as well. See Reyes-Contreras , 910 F.3d at 183 (citing Voisine v. United States , ––– U.S. ––––, 136 S. Ct. 2272, 2279, 195 L.Ed.2d 736 (2016) ).

Consequently, under Howell and Reyes-Contreras , both of Greer's Texas Penal Code convictions were considered crimes of violence at the time he was sentenced and the district court properly sentenced him under U.S.S.G. § 2K2.1(a)(1) since he had two qualifying felony convictions. After Borden , however, Greer's prior conviction for assault family violence by impeding breathing or circulation under Texas Penal Code § 22.01(a)(1) and (b)(2)(B) no longer qualifies as a "crime of violence" because the applicable statutory subsections do not include a force element with a mens rea greater than recklessness. See Price v. State , 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (explaining that the offense defined by sections 22.01(a)(1) and (b)(2)(B) includes a mens rea of recklessness). Likewise, Greer's conviction for assault family violence with a prior conviction under Texas Penal Code § 22.01(a)(1) and (b)(2)(A) no longer qualifies as a crime of violence because the only force element in those statutory subsections includes a mens rea of recklessness. See Tex. Penal Code § 22.01(a)(1), (b)(2)(A) (providing that "intentionally, knowingly, or recklessly caus[ing] bodily injury to another" is a third degree felony "if the defendant has been previously convicted of" another such family violence offense).

Without these two qualifying prior convictions for crimes of violence, Greer's base offense level would drop from 26 to 20, and his total offense level would drop from 29 to 23. See USSG § 2K2.1(a)(4)(B) (providing for a base...