United States v. Stoglin

34 F.4th 415

UNITED STATES of America, Plaintiff—Appellee,

v.Adrian Jimmy STOGLIN, Defendant—Appellant.

No. 21-50206

United States Court of Appeals, Fifth Circuit.

FILED May 17, 2022

Joseph H. Gay, Jr., Mara Asya Blatt, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Bradford W. Bogan, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before Higginbotham, Dennis, and Graves, Circuit Judges.

James L. Dennis, Circuit Judge:

Adrian Jimmy Stoglin pleaded guilty to drug trafficking and firearms offenses. The district court applied a recidivist enhancement based on Stoglin's prior conviction in Texas state court for aggravated assault. Stoglin argues on appeal, in light of Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), that the district court plainly erred by applying the enhancement because his prior offense could be committed recklessly, taking it outside of the definition of prior offenses that qualify for the enhancement. We agree. We therefore VACATE Stoglin's sentence and REMAND for resentencing consistent with this opinion.

I.

Adrian Jimmy Stoglin was charged by indictment with one count of conspiracy to distribute and to possess with intent to distribute twenty-eight grams or more of cocaine base and one count of knowingly possessing a firearm in furtherance of the drug trafficking offense. In addition, the indictment alleged that Stoglin had a prior serious violent felony conviction based on his Texas conviction for aggravated assault with a deadly weapon, for which he served more than twelve months in prison. In light of that prior conviction, the magistrate judge advised Stoglin that his statutory sentencing range for the drug offense was ten years to life in prison and the mandatory minimum supervised release term was eight years. See 21 U.S.C. § 841(b)(1)(B). Stoglin pleaded guilty to both of the charges against him.

The probation officer preparing the presentence report (PSR) determined that Stoglin had a total offense level of twenty-one for the drug offense and a criminal history category of IV, resulting in an advisory guidelines range of 57–71 months. However, because Stoglin faced a statutory minimum sentence of 120 months, this became the applicable guidelines range for the cocaine base conspiracy. Stoglin did not object to the PSR. The district court sentenced Stoglin to 120 months in prison for the conspiracy and 60 months for the firearm offense, to run consecutively and to be followed by concurrent eight-year and five-year terms of supervised release. Stoglin filed a timely notice of appeal. FED. R. APP. P. 4(b)(1)(A)(i).

II.

Because Stoglin did not object in the district court, we review for plain error. Puckett v. United States , 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). To prevail on plain error review, an appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Id. at 135, 129 S.Ct. 1423. If he makes such a showing, this court has the discretion to correct the error but only if it " ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ " Id. (alteration in original) (citation omitted).

A drug offense involving twenty-eight grams or more of cocaine base typically results in a statutory sentencing range of five to forty years in prison and no less than four years of supervised release. § 841(b)(1)(B)(iii). However, the sentencing range increases to ten years to life and to no less than eight years of supervised release if the offense is committed "after a prior conviction for a ... serious violent felony has become final." § 841(b)(1)(B). A "serious violent felony" is defined in relevant part as "an offense described in section 3559(c)(2) of Title 18 for which the offender served a term of imprisonment of more than 12 months." 21 U.S.C. § 802(58)(A). Section 3559 defines the term as a list of enumerated offenses (the enumerated offense clause); "any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another" (the elements clause); or any offense "that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense" (the residual clause). 18 U.S.C. § 3559(c)(2)(F). Stoglin contends that the residual clause in § 3559(c)(2)(F) contains substantively identical language to that in other statutes that have been found to be unconstitutionally vague, and the Government does not rely on the residual clause to argue that Stoglin's prior offense was a serious violent felony.

III.

Stoglin argues—and the Government concedes—that he has established a clear and obvious error that violated his substantial rights because Stoglin's prior Texas conviction for aggravated assault does not qualify as an 18 U.S.C. § 3559 serious violent felony. We agree.

A. Clear and obvious error

The Government alleged that Stoglin had a serious violent felony based on his 1999 guilty plea to one count of aggravated assault with a deadly weapon in Texas court, which resulted in a ten-year sentence.¹ Aggravated assault is not included in the enumerated offense clause of § 3559(c)(2)(F)(i). Accordingly, Stoglin's sentence was properly enhanced only if it falls under the elements clause of § 3559(c)(2)(F)(ii).

In Borden² , the Supreme Court held that an offense requiring the use, attempted use, or threatened use of physical force against another person cannot be an Armed Career Criminal Act (ACCA) "violent felony" if it criminalizes reckless conduct. See Borden , 141 S. Ct. at 1825. In relevant part, and with language identical to that of ACCA's elements clause, § 3559(c)(2) defines a "serious violent felony" as an "offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 3559(c)(2)(F)(ii).

A person commits aggravated assault in Texas "if the person commits assault as defined in [Texas Penal Code] § 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault."

TEX. PENAL CODE § 22.02(a)(1) & (2). An assault under Texas Penal Code § 22.01 is committed when a person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

§ 22.01(a)(1)-(3).

In our recent decision in United States v. Gomez Gomez , 23 F.4th 575 (5th Cir. 2022), we observed that Texas aggravated assault under Texas Penal Code §§ 22.01(a)(1), 22.02(a)(2) "includes three indivisible mental states, one of which is recklessness." (citations omitted). We held, therefore, that the offense could not qualify as a "crime of violence" under the elements clause of 18 U.S.C. 16(a), because it was almost identical to the elements clause of the ACCA interpreted in Borden. We also noted that despite the vote being split 4-1-4, Borden is not limited to the facts under the rule set forth in Marks v. United States , 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), because "Justice Thomas and Justice Kagan (writing for herself and three fellow justices) both conclud[ed] that an offense requiring the ‘use of physical force against the person of another’ entails a mental state beyond mere recklessness." Id. at 577 n.1 (citations omitted).

We have also held that, in the context of a 28 U.S.C. § 2255 proceeding, an offense that qualifies as a "violent felony" under the ACCA's elements clause also qualifies as a "serious violent felony" under 18 U.S.C. § 3559(c)(2)(F)(ii) because the language of the two clauses is "very similar." United States v. Parker , 3 F.4th 178, 181 (5th Cir. 2021). Conversely, then, an offense that does not qualify as a violent felony under ACCA's elements would not qualify as a serious violent felony under 18 U.S.C. § 3559(c)(2)(F)(ii) because the language of the two clauses is "very similar."

Indeed, the state court papers reflect that Stoglin was charged with and admitted to intentionally and knowingly causing bodily injury, which tracks the language of § 22.01(a)(1). As noted above, § 22.01(a)(1) prohibits intentional, knowing, or reckless conduct. Although the Texas indictment alleges and the plea agreement finds that Stoglin committed the offense intentionally or knowingly rather than recklessly, the Government acknowledges that the mens rea requirement of § 22.01(a)(1) is not divisible, and therefore the crime that Stoglin pleaded to and was convicted of could be committed recklessly. See Gomez-Perez v. Lynch , 829 F.3d 323, 328 (5th Cir. 2016) (concluding that the mens rea requirement of § 22.01(a)(1) is not divisible in determining whether an offense is a crime of moral turpitude under the immigration statutes).

Therefore, under Borden , because Texas aggravated assault can be committed recklessly, Stoglin has not committed a serious violent felony as defined by § 3559(c)(2)(F)(ii). Consequently, the district court committed a clear and obvious error.

B. Effect on substantial rights

To establish that a sentencing error affected substantial rights, a defendant must show "a reasonable probability that, but for the district court's [error], he would have received a lesser sentence." United States v. Martinez-Rodriguez , 821 F.3d 659, 663-64 (5th Cir. 2016) (internal quotation marks...