United States v. Villarreal

87 F.4th 689

UNITED STATES of America, Plaintiff—Appellee, v. Rolando VILLARREAL, Defendant—Appellant.

No. 19-40811

United States Court of Appeals, Fifth Circuit

FILED December 5, 2023

Appeal from the United States District Court for the Southern District of Texas, USDC No. 7:16-CV-299, Randy Crane, Chief Judge

Jason B. Smith, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff—Appellee.

Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant—Appellant.

Before Higginbotham, Smith, and Elrod, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Rolando Villarreal pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court enhanced Villarreal's sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), finding that the ACCA's sentencing enhancement was applicable because of a prior burglary and two prior aggravated assaults. Villarreal filed a motion under 28 U.S.C. § 2255 challenging the enhancement. In light of Borden v. United States, we VACATE the sentence and REMAND the case to the district court with instructions to resentence Villarreal without the ACCA enhancement.

I.

This case has an extensive procedural history, as it traversed decisions by the Supreme Court and this Court in defining the limits of the ACCA.¹ Villarreal's appeal bounced between the district court, this Court, and the Supreme Court over the span of six years from the filing of his motion under 28 U.S.C. § 2255. The district court wrestled with at least three intervening Supreme Court cases and other decisions from this Court.

On September 8, 2011, Rolando Villarreal was charged with one count under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of a firearm and on February 6, 2012, pleaded guilty. At rearraignment, the judge told Villarreal that his sentence "[could] be up to ten years' imprisonment." The government objected to Villarreal's initial presentence report on the grounds that Villarreal was an armed career criminal under the ACCA, codified as 18 U.S.C. § 924(e). The ACCA provides for a sentencing enhancement for persons convicted of violating 18 U.S.C. § 922(g) (felon-in-possession) after three prior convictions "for a violent felony or serious drug offense."² It defines "violent felony" as a "crime punishable by imprisonment for a term exceeding one year" which:

(1) "has as an element the use, attempted use, or threatened use of physical force against the person of another; or"

(2) "is burglary, arson, or extortion, [or] involves use of explosives, or"

(3) "otherwise involves conduct that presents a serious potential risk of physical injury to another."³

The first clause (1) is referred to as the "elements" or "force" clause, and the third clause (3) is the "residual" clause. A Borden claim speaks to the elements clause, and a Johnson claim challenges the district court's use of the residual clause when sentencing.⁴

Following the government's objection, the revised PSR found that the ACCA's sentencing enhancement was applicable because Villarreal had been convicted for a prior burglary of habitation and two prior aggravated assaults, and he was subject to a mandatory minimum of 15 years' imprisonment. The district court overruled Villarreal's objections to the use of the burglary conviction and sentenced him to 188 months. Villarreal appealed his sentence arguing, inter alia, that "the district court erred by imposing the enhanced penalties [of the ACCA] . . . based on his prior Texas burglary conviction."⁵ His appeal did not challenge the use of the aggravated assault convictions as a basis for his enhancement. This Court rejected Villarreal's challenge to the use of the burglary conviction and affirmed the district court's judgment on April 17, 2013.⁶

In June 2015, the Supreme Court issued its opinion in Johnson v. United States, holding that the ACCA's residual clause was unconstitutionally vague.⁷ The Supreme Court held that Johnson applied retroactively to cases on collateral review.⁸ In light of these developments at the Supreme Court, Villarreal promptly filed his motion to vacate his sentence under 28 U.S.C. § 2255 on June 6, 2016. His pro se motion asserted that the ACCA enhancement was in error in light of Johnson, specifically citing to the ACCA's residual clause. The district court found that, in light of Johnson, Villarreal's motion may have been timely and ordered the government to respond. Unsure whether the motion was timely, the district court allowed Villarreal to file a supplemental memorandum to provide "any other information or legal authority regarding the timeliness of his § 2255 motion (apart from what is set out in his initial briefing)."

Prior to the government's response, Villarreal filed a supplemental memorandum in which he moved to amend his petition under Fed. R. Civ. P. 15(a) & (d). The supplemental memorandum stated, in part:

As Villarreal could be convicted under the Texas statute for causing serious bodily injury or assaulting a peace officer absent proof he used physical force, his prior offenses are not crimes of violence based on the residual clause (or force clause) of the ACCA . . . Fifth Circuit decisions recognize that to qualify as a crime of violence under the residual clause, or force clause for that matter, a statute must focus on the means used to commit the crime, not its result. Using force is a crime of violence, causing injury is not.

In response, the government did not contend that Villarreal's sentence enhancement was not pursuant to the residual clause. Rather, it argued that Villarreal's aggravated assault convictions fell under ACCA's "elements" or "force" clause. Villarreal filed his response, arguing that his burglary conviction could not qualify as a predicate offense under the ACCA in light of the Supreme Court's June 23, 2016, decision in Mathis v. United States.⁹ One day before Villarreal filed his response, this Court handed down United States v. Herrold, which itself reviewed Mathis.¹⁰ Herrold held that Texas' burglary of habitation no longer qualifies as a violent felony under § 924(e).¹¹ About two months after his response, Villarreal asked "that Judicial Notice be taken in light of United States v. Herrold." Villarreal also raised for a third time his request to be appointed counsel, which the district court finally granted.

The magistrate judge issued an initial report that recommended granting Villarreal's § 2255 motion in light of Johnson and Herrold.¹² Both parties objected to the magistrate judge's recommendations. The magistrate judge then asked for additional briefing in light of United States v. Clay, which held that "a prisoner bringing a successive § 2255 petition must show that it is 'more likely than not' that the sentencing court relied on the residual clause to prove that his claim 'relies on' Johnson."¹³ After briefing, the magistrate judge recommended dismissing Villarreal's petition for untimeliness. Villarreal objected and the district court adopted the magistrate's recommendation. Villarreal appealed.

This Court denied Villarreal's motion for a certificate of appealability ("COA"), finding Villarreal had failed to show that "jurists of reason would find it debatable whether the petition states a valid claim of a denial of a constitutional right."¹⁴ Villarreal petitioned for certiorari, with the following questions presented:

I. Whether a statute has as an element the use of force against the person of another when a conviction under that statute can be based on a reckless mental state.

II. Whether reasonable jurists could debate the district court's decision to dismiss Mr. Villarreal's motion to vacate.¹⁵

The Supreme Court granted Villarreal's petition and vacated the judgment, remanding the case to our Court in light of Borden v. United States.¹⁶ In Borden, the Supreme Court held that a criminal offense that requires only a mens rea of recklessness cannot count as a "violent felony" under the elements clause of the ACCA.¹⁷

Our Court then issued a remand to the district court in which "[w]e express[ed] no opinion on whether Villarreal should be allowed to amend his petition . . . which [is a] matter[ ] left to the sound discretion of the district court." After this Court remanded, the United States filed a motion to reconsider the remand order. It argued that because Villarreal did not have a COA, the court lacked jurisdiction to remand the case as it did. We subsequently withdrew the remand order and remanded for consideration of whether Villarreal was entitled to a COA. Villarreal moved for a COA, and the government agreed a COA should issue. After a proposed COA, and Villarreal's objection to that proposal, the district court adopted the magistrate judge's originally proposed COA. Villarreal appealed, and this court eventually amended the COA. The amended COA reads: "[d]oes Movant's petition assert a claim that Movant's sentence was improperly enhanced under the 'elements' or 'force' clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on the predicate offense that allowed conviction for reckless conduct?"

II.

"In challenges to district court decisions under 28 U.S.C. § 2255, we measure findings of fact against the clearly erroneous standard and questions of law de novo."¹⁸ The dispositive question in this appeal is whether Villarreal's § 2255 motion asserted a Borden claim. If so, then we must reach the merits of the case and address whether Villarreal is entitled to the requested relief as a matter of law.

III.

First, we find that Villarreal did assert a Borden claim in his § 2255 motion. Villarreal has consistently asserted the claim that his ACCA sentence could not be justified by his prior Texas aggravated...