United States v. Jackson

30 F.4th 269

UNITED STATES of America, Plaintiff—Appellee,

v.Devoris Lamont JACKSON, Defendant—Appellant.

No. 20-11169

United States Court of Appeals, Fifth Circuit.

FILED March 30, 2022

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

Cheri Thomas, Lewis Thomas Law, P.C., Houston, TX, for Defendant-Appellant.

Before Smith, Costa, and Wilson, Circuit Judges.

Gregg Costa, Circuit Judge:

When Devoris Jackson unlawfully possessed a firearm, our precedent did not treat his burglary convictions as violent felonies that could enhance his sentence under the Armed Career Criminal Act (ACCA). But by the time he was sentenced for the gun crime, the Supreme Court had rejected our view. The district court thus counted Jackson's burglary convictions as violent felonies. The principal issue on appeal is whether using the new precedent to enhance Jackson's sentence violated due process.

I

It is unlawful for felons to possess a firearm. 18 U.S.C. § 922(g)(1). Felon-in-possession convictions typically carry a maximum ten-year penalty. 18 U.S.C. § 924(a)(2). But the ACCA increases the penalty to a fifteen-year minimum if the defendant "has three previous convictions ... for a violent felony." Id. § 924(e)(1). A "violent felony" is any crime punishable by more than one year in prison that "(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, [or] involves the use of explosives." Id. § 924(e)(2)(B).

The district court applied the ACCA at Jackson's sentencing— imposing the minimum sentence of fifteen years—after he pled guilty to possessing a firearm as a felon. The court treated Jackson's Texas aggravated robbery conviction and two Texas burglary-of-a-habitation convictions as the violent felonies compelling the enhanced sentence.

II

As he did in the district court, Jackson concedes that his Texas burglary-of-a-habitation convictions qualify as violent felonies under current precedent.¹ See United States v. Herrold (Herrold II ), 941 F.3d 173, 177, 182 (5th Cir. 2019) (en banc), cert. denied , ––– U.S. ––––, 141 S. Ct. 273, 208 L.Ed.2d 36 (2020). Jackson argues, however, that the Due Process Clause required the district court to instead apply our precedent as it existed when he committed the gun crime in August 2018.

Understanding Jackson's claim requires a brief history of our changing precedent on whether Texas burglary of a habitation is an ACCA predicate. When Congress named "burglary" a violent felony, it "had in mind a modern ‘generic’ view" of the crime. Taylor v. United States , 495 U.S. 575, 589, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Generic burglary is the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S.Ct. 2143. Shortly before Jackson was caught in possession of the firearm, we held that Texas burglary of a habitation was broader than generic burglary because it reached defendants who formed intent to commit a crime after entering the building. United States v. Herrold (Herrold I) , 883 F.3d 517, 532–36 (5th Cir. 2018) (en banc), vacated , ––– U.S. ––––, 139 S. Ct. 2712, 204 L.Ed.2d 1107 (2019). That precedent was short-lived. The following year, the Supreme Court resolved a circuit split and held that generic burglary occurs regardless of when intent is formed. Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 1875, 204 L.Ed.2d 200 (2019). Because we were on the wrong side of the split, the Supreme Court returned Herrold to us. ––– U.S. ––––, 139 S. Ct. 2712, 204 L.Ed.2d 1107 (2019). Bound by stare decisis , we then held that Texas burglary of a habitation is generic burglary and thus is a violent felony.

Herrold II , 941 F.3d at 177, 182. Herrold II was on the books when Jackson was sentenced.

Jackson contends that it was unconstitutional for the district court to apply the law as it existed when he was sentenced rather than when he committed the crime. He relies on the due process principle that guarantees notice of what conduct is criminal and the punishment that attaches to each crime. See Johnson v. United States , 576 U.S. 591, 595–96, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). One corollary of that notice requirement is a bar on the retroactive application of a judicial interpretation of a criminal law when the decision is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue." Bouie v. City of Columbia , 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

The "unexpected and indefensible" qualifier recognizes that most judicial decisions apply retroactively. After all, an outright prohibition on retroactive application "would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system." Rogers v. Tennessee , 532 U.S. 451, 461, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).

What makes a judicial ruling "unexpected and indefensible"? The Civil Rights Era case that gave rise to this antiretroactivity doctrine is illustrative. In Bouie v. City of Columbia , the Supreme Court invalidated convictions of two African-American college students who were arrested for ‘sitting in’ at a whites-only lunch counter. 378 U.S. at 348–49, 84 S.Ct. 1697. The students had been charged under South Carolina's criminal trespass statute, which prohibited "entry" onto another's property "after notice prohibiting [the] same." Id. at 349 n.1, 84 S.Ct. 1697. South Carolina courts had long read the statute to require pre-entry notice. Id. at 356, 84 S.Ct. 1697. The state supreme court nonetheless affirmed the students’ convictions, holding that the law also criminalized remaining on another's property after being asked to leave. Id. at 350, 84 S.Ct. 1697. That novel reading of the statute could not be applied retroactively, the Supreme Court of the United States held, because the state's preexisting law did not suggest that the students might be jailed for "sit[ting] quietly" in the restaurant. See id. at 348, 84 S.Ct. 1697.

The hallmarks of the Bouie situation when a law cannot apply retroactively include stark divergence from the statutory text, departure from prior caselaw, inconsistency with the expectations of the legislature and law enforcement, and the criminalization of otherwise innocent conduct. Bouie , 378 U.S. at 355–56, 361–63, 84 S.Ct. 1697.² Those hallmarks are absent here.

First and foremost, classifying Texas burglary of a habitation as a violent felony is not "clearly at variance" with the ACCA's text. See Bouie , 378 U.S. at 356, 84 S.Ct. 1697. The ACCA defines "violent felony" to include "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). Judges can debate whether this generic reference to "burglary" includes a burglary law that allows intent to be formed after entry, but a layperson reading the law would likely expect Texas burglary to be an ACCA predicate. Contrast Bouie , 378 U.S. at 355–56, 84 S.Ct. 1697 (holding that extending South Carolina's trespassing statute to remaining on another's property after being asked to leave was inconsistent with the law's text barring only "entry" upon another's property). Treating Texas burglary as a violent felony did not read into the statute "an intention which the [ACCA's] words themselves did not suggest." See id. at 362, 84 S.Ct. 1697 (quoting United States v. Wiltberger , 18 U.S. (5 Wheat.) 76, 86, 5 L.Ed. 37 (1820) (Marshall, C.J.)).

Nor was counting Jackson's burglary convictions as violent felonies "unexpected" in light of precedent. In fact, Herrold I ’s fleeting holding— that Texas burglary of a habitation was not generic burglary—departed from a quarter century of Fifth Circuit caselaw. Compare Herrold I , 883 F.3d at 517, with United States v. Silva , 957 F.2d 157, 162 (5th Cir. 1992) ; United States v. Constante , 544 F.3d 584, 586–87 (5th Cir. 2008) ; and United States v. Uribe , 838 F.3d 667, 671 (5th Cir. 2016) (all considering Texas burglary of a habitation an ACCA predicate). Herrold I was a closely divided (8-7) en banc decision. And it clashed with other circuits’ view that generic burglary includes burglaries with post-entry intent. See United States v. Bonilla , 687 F.3d 188, 193–94 (4th Cir. 2012) (finding Texas burglary generic and thus a "violent felony" under the ACCA); see also United States v. Priddy , 808 F.3d 676, 684 (6th Cir. 2015) (deeming Tennessee's similar burglary statute generic). That circuit split created a reasonable likelihood that the Supreme Court would resolve the disagreement. It soon did so. Quarles , 139 S. Ct. at 1872 ; Herrold , 139 S. Ct. at 2712 (vacating Herrold I and remanding for reconsideration in light of Quarles ).

That the Supreme Court's resolution of a circuit split prompted the ruling Jackson calls "unexpected and indefensible" reveals bigger problems with his argument. It is difficult to see how a high court decision overruling an intermediate one could be an unforeseeable change in law; our decisions are always subject to Supreme Court review. And it is not even clear that applying Herrold II to Jackson was in any way retroactive because it was a later phase of the very case he says should control. At a minimum, it is not reasonable to treat a divided decision of an intermediate court like ours as providing the unalterable notice that Bouie contemplates. Contrast Bouie , 378 U.S. at 356–57, 84 S.Ct. 1697 (noting that the Supreme Court of South Carolina's ruling upholding the trespass prosecution for the sit-in went against almost a hundred years of the state high court's having "uniformly emphasized the notice-before-entry requirement").

Finding a retroactivity problem when a high court overrules a lower one would undermine vertical precedent. It would mean that...