     Case: 17-10607      Document: 00514581796         Page: 1    Date Filed: 08/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 17-10607                            FILED
                                                                         August 1, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellant

v.

VERNON LEE WHEELER,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-75-1


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Vernon Lee Wheeler pleaded guilty to a charge of felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). During sentencing, the question
arose of whether Wheeler’s four prior convictions under Texas law for
aggravated robbery qualified as “violent felonies” for purposes of the Armed
Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (providing a fifteen-year




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 17-10607
mandatory minimum sentence). The district court ruled in Wheeler’s favor
and sentenced him to thirty-three months. The Government timely appealed.
       To the district court and in its initial briefing before this court, the
Government argued that Wheeler’s prior crimes should be analyzed under a
“simple robbery” analysis and that divisibility was not an issue it was
pursuing: in other words, “simple robbery” under Texas law qualified as the
requisite “violent felony.”
       Many of the original arguments in this case are foreclosed by our recent
decision in United States v. Burris, --- F.3d ----, No. 17-10478, 2018 WL
3430086, at *10 (5th Cir. July 16, 2018), which held that simple robbery is not
a crime of violence for purposes of the ACCA. 1
       Following our decision in United States v. Lerma, 877 F.3d 628, 631 (5th
Cir. 2017), cert. denied, 86 U.S.L.W. 3594 (2018), the Government shifted
course somewhat, arguing that aggravated robbery is divisible and that
Wheeler’s crime fits the provision that the Lerma court deemed a “violent
felony” under the ACCA (i.e., robbery using and exhibiting a deadly weapon).
The Government conceded that this argument should be reviewed under “plain
error,” which has four prongs, the first two of which is that there was an error
that was “clear or obvious.” See Puckett v. United States, 556 U.S. 129, 135
(2009). For his part, Wheeler argues that this argument is waived by the
Government’s express determination in the district court not to argue
divisibility.




       1   Burris cites a line of cases (see, e.g., United States v. Rico-Mejia, 859 F.3d 318, 321
(5th Cir. 2017)) that were relied upon in the now-vacated decision of United States v. Reyes-
Contreras, 882 F.3d 113 (5th Cir.), reh’g granted, 892 F.3d 800, 801 (5th Cir. 2018) (mem.),
which is the subject of a pending en banc rehearing. See Burris, 2018 WL 3430086, at *7
n.51 (discussing en banc grant in Reyes-Contreras). However, Burris expressly held that even
if that line of cases were inaccurate, Texas’s definition of “bodily injury” was itself overbroad
relative to the ACCA “violent felony” definition. See id., 2018 WL 3430086, at *7.
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                                  No. 17-10607
      We agree with Wheeler. Only forfeited errors are subject to plain-error
review; waived errors are entirely unreviewable, and, indeed, are not “errors”
at all. See United States v. Olano, 507 U.S. 725, 732–33 (1993); accord Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). “[W]aiver is the
‘intentional relinquishment or abandonment of a known right.’” Olano, 507
U.S. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It occurs
when a party “consciously decide[s] to forgo [an] objection at sentencing.”
United States v. Rico, 864 F.3d 381, 384 (5th Cir.), cert. denied, 138 S. Ct. 487
(2017); accord, e.g., United States v. Collier, 846 F.3d 813, 814 (5th Cir. 2017);
United States v. Rodriguez-De la Fuente, 842 F.3d 371, 374 (5th Cir. 2016).
      Throughout this litigation, the Government repeatedly made the
intentional decision to forgo any argument based on the divisibility of the
Texas aggravated robbery statute, as well as any argument based on
differences between simple and aggravated robbery. It told the district court
it was not arguing divisibility and was, instead, arguing that categorically the
Texas robbery statute constituted an ACCA violent felony. In light of the
Government’s conscious decision to forgo the divisibility argument and the
“aggravated robbery is different from simple robbery for this purpose”
argument, we agree with Wheeler that the arguments are waived.
      However, even if we decided that the Government’s argument was not
precluded by waiver, it would fail on plain error review because any error is
not plain. Following our decision in Lerma, our court, sitting en banc, decided
United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petitions for
cert. filed, (U.S. Apr. 18, 2018) (No. 17-1445), and (U.S. May 21, 2018) (No. 17-
9127). Herrold cites Lerma and does not expressly overrule it, but Wheeler
argues that the divisibility determination in Herrold cannot be squared with




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                                     No. 17-10607
that of Lerma. 2 Both sides make robust arguments about Herrold’s impact (or
lack thereof) on Lerma. Cf. United States v. Tanksley, 848 F.3d 347, 350–52
(5th Cir.) (finding divisibility precedent abrogated where an intervening
Supreme Court opinion unequivocally “instructed courts on how to identify
truly divisible statutes”), as supplemented, 854 F.3d 284 (5th Cir. 2017). We
do not need to resolve this dispute because we conclude that the issue is
sufficiently unclear that any error is not plain.
      AFFIRMED.




      2  This argument was not raised in Burris. Instead, the defendant there conceded that
Lerma foreclosed any argument about his aggravated robbery conviction. See Burris, 2018
WL 3430086, at *1. Burris had a separate conviction for simple robbery that then formed the
basis for the bulk of the discussion in that opinion. See id. We agree with Wheeler that
Wheeler is not bound by Burris’s concession in a case to which Wheeler was not a party.
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