     Case: 14-11317       Document: 00515165055        Page: 1   Date Filed: 10/18/2019




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

                                        No. 14-11317
                                                                          Fifth Circuit

                                                                        FILED
                                                                 October 18, 2019

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
                Plaintiff - Appellee

v.

MICHAEL HERROLD,

                Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas


     ON REMAND FROM THE UNITED STATES SUPREME COURT

Before OWEN, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH,
STEWART, DENNIS, CLEMENT, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT,
and OLDHAM, Circuit Judges.


PATRICK E. HIGGINBOTHAM, Circuit Judge:
      If the Texas burglary statute 1 is “generic” burglary, as the Armed Career
Criminal Act case law has defined it, Michael Herrold will receive a 15-year
sentence enhancement. When Herrold pled guilty in 2014 to possession of a
firearm by a former felon, he had three prior felony convictions from 1992—for
possession of LSD with intent to deliver, for burglary of a building, and for



      1   TEX. PENAL CODE § 30.02(a).
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                                       No. 14-11317
burglary of a habitation. 2
       Determining whether these burglary convictions count toward Herrold’s
tally of predicate convictions under the ACCA has set this case on a winding
path. Since we last considered the issue, two Supreme Court decisions have
foreclosed Herrold’s prior arguments. We now consider whether his remaining
arguments offer an escape from the sentencing enhancement. They do not.
                                               I.
       A panel originally affirmed the district court’s application of the ACCA
enhancement. 3 Then the Supreme Court—based on its intervening decision in
Mathis v. United States 4— issued an order granting cert, vacating the lower
court, and remanding for further proceedings (collectively known as a GVR
order). 5 Still, bound by our decision in United States v. Uribe, 6 the panel again
affirmed. 7 Hearing the case en banc, however, we vacated that decision 8 and
abrogated the district court. 9
       In our en banc decision, we reversed Uribe in holding that the Texas




       2 The ACCA enhancement is triggered by three previous “violent felony” or “serious
drug offense” convictions. 18 U.S.C. § 924(e)(1). The possession of LSD conviction is a serious
drug offense. Thus, if Herrold’s burglary convictions are violent felonies, the enhancement
applies. The “violent felony” definition enumerates “burglary, arson, [and] extortion,” id.
§ 924(e)(2)(B)(ii), but only “crimes having certain specified elements” count as predicates, not
“crimes that happen[] to be labeled ‘robbery’ and ‘burglary’” by the state in question, Taylor
v. United States, 495 U.S. 575, 588–89 (1990). Burglary under the ACCA requires “unlawful
or unprivileged entry into, or remaining in, a building or other structure, with intent to
commit a crime.” Id. at 598. Burglary statutes no broader than this formulation are deemed
“generic”; those broader “non-generic.” Convictions under non-generic statutes do not count
toward an ACCA sentencing enhancement.
       3 United States v. Herrold, 813 F.3d 595 (5th Cir. 2016).
       4 136 S. Ct. 2243 (2016).
       5 Herrold v. United States, 137 S. Ct. 310 (2016).
       6 838 F.3d 667, 671 (5th Cir. 2016) (holding that Section 30.02(a) is divisible and that

Section 30.02(a)(1) is generic).
       7 United States v. Herrold, 685 F. App’x 302 (5th Cir. 2017).
       8 United States v. Herrold, 693 F. App’x 272 (5th Cir. 2017) (en banc).
       9 United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).

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burglary statute, Section 30.02(a), was indivisible. 10 Next, we concluded that
“to be guilty of generic burglary, a defendant must have the intent to commit
a crime when he enters or remains in the building or structure.” 11 We held that
Section 30.02(a)(3), by contrast, “contains no textual requirement that a
defendant’s intent to commit a crime contemporaneously accompany a
defendant’s unauthorized entry.” 12 Section 30.02(a)(3) was thus non-generic,
which disqualified Herrold’s burglary convictions as ACCA enhancement
predicates, so we vacated his sentence and remanded to the district court for
re-sentencing. 13
       We left another question unresolved: whether burglary of a “habitation”
under Section 30.02(a)(1) is broader than generic burglary, given that
“habitation” is defined to apply to vehicles that are “adapted for overnight
accommodations of persons” as well as conventional buildings. 14 As its
resolution was not required, we detailed the “powerful arguments on both sides
of the question” but did not decide it. 15


       10 Id. at 523. We considered whether Section 30.02(a) sets out alternative means of
committing a single substantive crime—making the statute “indivisible”—or whether it sets
out separate elements—effectively defining distinct offenses, making the statute “divisible.”
Mathis, 138 S. Ct. at 2248–49. For indivisible statutes, we compare the whole statute to the
generic definition. For divisible statutes, we apply the generic definition only to the
alternative under which the defendant was convicted.
       The Texas burglary statute, TEX. PENAL CODE § 30.02(a), reads:
(a) A person commits an offense if, without the effective consent of the
owner, the person:
       (1) enters a habitation, or a building (or any portion of a building)
       not then open to the public, with intent to commit a felony, theft, or an
       assault; or
       (2) remains concealed, with intent to commit a felony, theft, or an
       assault, in a building or habitation; or
       (3) enters a building or habitation and commits or attempts to
       commit a felony, theft, or an assault.
       11 Herrold, 883 F.3d at 531.
       12 Id.
       13 Id. at 541–42.
       14 See TEX. PENAL CODE § 30.01(1).
       15 Herrold, 883 F.3d at 537.

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      On remand after the en banc decision, the district court sentenced
Herrold to time served. 16 Meanwhile, the Government filed a petition for
certiorari. Two intervening Supreme Court decisions, Quarles v. United
States 17 and United States v. Stitt, 18 foreclosed the two principal grounds on
which Herrold contested his ACCA sentencing enhancement, so the Court
issued another GVR order. 19
      First, in Stitt, the Supreme Court answered the “habitation” question we
left unresolved. The Court considered whether burglary of a “nonpermanent or
mobile structure that is adapted or used for overnight accommodation can
qualify as ‘burglary’ under the [ACCA].” 20 It did so in the context of two state
burglary statutes that apply to vehicles or structures “designed or adapted for
the overnight accommodation of persons” (Tennessee) 21 and those “customarily
used for overnight accommodation of a person whether or not a person is
actually present” (Arkansas). 22 For reference, the language in the Texas
statute—defining “habitation” as “a structure or vehicle that is adapted for the
overnight accommodation of persons”—matches that in the Tennessee statute;
if Tennessee’s statute is generic on this ground, so is Texas’s.
      The Stitt Court held that the Tennessee and Arkansas statutes fell
within generic burglary. It reasoned that burglaries of homes and RVs, for
example, pose similar risks of violent confrontation, and that most state
burglary statutes covered vehicles adapted or customarily used for lodging




      16  See Amended Judgment, United States v. Herrold, No. 3:13-CR-225 (N.D. Tex. April
10, 2018).
       17 139 S. Ct. 1872 (2019).
       18 139 S. Ct. 399 (2018).
       19 United States v. Herrold, 139 S. Ct. 2712 (2019) (mem.).
       20 Stitt, 139 S. Ct. at 404.
       21 TENN. CODE ANN. §§ 39–14–401(1)(A), (B).
       22 ARK. CODE ANN. § 5–39–101(8)(A)(ii).

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when Taylor was decided in 1986. 23
      Next, in Quarles, the Supreme Court chose between the broad and
narrow interpretations of the intent required for generic remaining-in
burglary. 24 Our earlier en banc decision in this case considered the same
question: whether generic remaining-in burglary occurs only when the intent
to commit a crime forms at the moment the defendant first unlawfully remains
in a building, or whether it occurs when the defendant forms this intent at any
time while unlawfully present. We chose the narrower view, but the Supreme
Court chose the broader. Quarles considered a Michigan statute, which stated
a person commits home invasion when that person “breaks and enters a
dwelling or enters a dwelling without permission and, at any time while he or
she is entering, present in, or exiting the dwelling, commits a misdemeanor.” 25
Relying on “the common understanding of ‘remaining in’ as a continuous
event,” the Quarles Court held that generic burglary occurs “if the defendant
forms the intent to commit a crime at any time during the continuous event of
unlawfully remaining in a building or structure.” 26
      After Quarles, Texas’s statute is generic even though it lacks the
contemporaneity requirement the en banc court considered necessary. And
after Stitt, the alternative ground we might have otherwise reached—related
to the “habitation” definition—is also foreclosed. Still, Herrold maintains
Section 30.02(a) is non-generic for reasons unaffected by Quarles or Stitt.
      Finally, because neither Quarles nor Stitt calls into question our holding
that the Texas burglary statute is indivisible, we reinstate that section (Part
II) of our en banc decision. 27


      23 Stitt, 139 S. Ct. at 406.
      24 Quarles, 139 S. Ct. at 1877.
      25 MICH. COMP. LAWS ANN. § 750.110a(4)(a).
      26 Id. at 1877.
      27 Herrold, 883 F.3d at 521–29.

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                                              II.
       Herrold’s chief argument has not changed, but now attacks different
aspects of the Section 30.02(a)(3) formulation: its alleged lack of specific-intent
and unlawful-breaking requirements. 28 Alternatively, Herrold argues the term
“burglary”—as        used     in    the    ACCA       and     construed      by    courts—is
unconstitutionally vague and deprives defendants of fair notice as to which
convictions will count toward an ACCA-enhanced sentence. Essentially, the
effort is to clip “burglary” from the statute as Johnson v. United States did with
the residual clause in the same provision. 29
                                              A.
       Herrold first argues that Section 30.02(a)(3) lacks a requirement that an
offender form a specific intent to commit another crime; that generic burglary
requires a plan to commit another crime, while Section 30.02(a)(3) requires
only that one “commit[] or attempt[] to commit a felony, theft, or an assault.” 30
Herrold identifies several felonies that fit in this enumerated list but do not
require “the intent to commit a crime.” For example, assault requires only
recklessness, 31 and endangering a child requires only recklessness or criminal
negligence. 32 He dubs Section 30.02(a)(3) a “trespass-plus-crime” formulation,
at once unusually broad and relatively rare as a theory of burglary, adopted
only by Texas, Minnesota, Montana, and Tennessee.



       28 Despite Herrold’s contention that the Government waived its argument that Section
30.02(a)(3) is generic because it waited until its September 2017 en banc brief to raise it, the
central arguments in the supplemental briefing are all properly before us. The Government’s
statement at the 2014 sentencing hearing merely recognized that we had held Section
30.02(a)(3) was non-generic in United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008).
The Government then, at its first opportunity during the en banc proceeding, asked that this
precedent be reconsidered.
       29 See 135 S.Ct. 2551, 2557 (2015).
       30 TEX. PENAL CODE § 30.02(a)(3).
       31 Id. § 22.01(a)(1).
       32 Id. § 22.041(c).

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       The Seventh Circuit adopted similar reasoning in holding that the
Minnesota trespass-plus-crime statute is non-generic. In Van Cannon v.
United States, it held the statute is non-generic because it does not require
intent at the moment of entry, the same argument adopted by the Herrold en
banc court and rejected by the Quarles Court. 33 It also concluded that the
statute “doesn’t require proof of intent to commit a crime at all—not at any
point during the offense conduct.” 34 The Van Cannon court rejected the
government’s argument that intent to commit a crime is implicit in the
requirement of proof of a completed crime, reasoning that “not all crimes are
intentional; some require only recklessness or criminal negligence.” 35
       Quarles tried to raise this issue, but the Supreme Court considered it
waived. 36 So Quarles did not foreclose this argument, and unlike Quarles,
Herrold did not waive it. Further, in September 2019, after Quarles and after
supplemental briefing was completed in our case, the Seventh Circuit (1)
confirmed that its conclusion that Minnesota burglary requires no “intent to
commit a crime at all” was a holding, not dicta, and (2) confirmed that this
holding was not affected by Quarles. 37
       Herrold urges us not to create a circuit split on this point, but his
argument fails for lack of supportive Texas cases. In United States v. Castillo-
Rivera, we warned that “[a] defendant who argues that a state statute is



       33 Van Cannon v. United States, 890 F.3d 656, 663–64 (7th Cir. 2018) (considering
MINN. STAT. § 609.582(2)(a), which stated one who “enters a building without consent and
commits a crime while in the building” commits burglary).
       34 Id. at 664.
       35 Id.
       36 Quarles, 139 S. Ct. at 1880 n.2.
       37 See Chazen v. Marske, No. 18-3268, 2019 WL 4254295, at *7–8 (7th Cir. Sept. 9,

2019) (“What we can say with confidence is that Quarles did not abrogate Van Cannon's
conclusion that Minnesota burglary is broader than generic burglary because the state
statute does not require proof of any intent at any point. Indeed, the Court expressly declined
to address this issue in Quarles.”).
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                                     No. 14-11317
nongeneric cannot simply rest on plausible interpretations of statutory text
made in a vacuum.” 38 Instead, that defendant must show “a realistic
probability, not a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of the crime.” 39 It is
incumbent on the defendant to point to “cases in which the state courts in fact
did apply the statute in the special (nongeneric) manner for which he argues.” 40
This is so “even where the state statute may be plausibly interpreted as
broader on its face.” 41
      Herrold claims Texas courts could uphold burglary convictions under
Section 30.02(a)(3) that involve crimes with lesser mens rea requirements; he
does not point to any convictions matching this description, nor does he cite a
single Texas case. He rather rests on the definitions of several provisions in
the Texas Penal Code.
      We need look no further, but even if we did, Texas law rejects Herrold’s
no-intent interpretation. The Government relies on DeVaughn v. State, in
which the Texas Court of Criminal Appeals, contrasting Section 30.02(a)(3)
with the first two subsections, concluded that the requirement in (a)(3) of an
“attempted or completed theft or felony . . . merely supplants the specific intent
which accompanies entry” in (a)(1) and (a)(2). 42 Immediately afterward, the
DeVaughn      court    quoted     with     approval     the      Practice      Commentary
accompanying (a)(3) and interpreted (a)(3) burglary as “the conduct of one who
enters without effective consent but, lacking intent to commit any crime upon
his entry, subsequently forms that intent and commits or attempts a felony or




      38 853 F.3d 218, 222 (5th Cir. 2017) (en banc).
      39 Id. (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
      40 Id. (emphasis omitted).
      41 Id. at 224 n.4.
      42 DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).

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                                       No. 14-11317
theft.” 43 Cases from the Texas Court of Appeals mirror this formulation. 44
       The Government’s position is that we should defer—and indeed already
have deferred—to this construction from DeVaughn. In the Government’s
view, whether intent to commit a crime must form at the moment the burglar
remains in or at any time during the improper remaining-in divided the en
banc court—but all judges implicitly agreed that intent was necessary
sometime. The Herrold majority interpreted Section 3.02(a)(3) as criminalizing
“entry and subsequent intent formation.” 45 The dissent, meanwhile, noted
that, before Herrold, the Fourth Circuit held Section 30.02(a)(3) generic in
United States v. Bonilla, 46 as did the Sixth Circuit with the substantially
similar Tennessee statute in United States v. Priddy. 47 As summarized by the
dissent,
       the Fourth Circuit [in Bonilla] reasoned that because (a)(3) only
       applies where a defendant’s presence in a building is unlawful, a
       completed or attempted felony therein necessarily requires intent
       to commit the felony either prior to unlawful entry or while
       unlawfully remaining in the building, which is all Taylor requires.
       [Bonilla, 687 F.3d at 193.] In other words, (a)(3) substantively
       contains the requisite intent element because to attempt or
       complete a crime requires intent to commit the crime. 48

       The dissent reasoned that Section 30.02(a)(3) “requires an unlawful or


       43  Id. (emphasis added) (quoting TEX. PENAL CODE ANN. § 30.02 practice cmt. at 144
(West 1974)).
        44 See Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (citing

the Practice Commentary for the proposition that “[p]rosecution under section 30.02(a)(3) is
appropriate when the accused enters without effective consent and, lacking intent to commit
any crime upon his entry, subsequently forms that intent and commits or attempts to commit
a felony or theft”); see also Leaks v. State, 2005 WL 704409, at *2 (Tex. App.—Corpus Christi
Mar. 24, 2005, pet. ref’d) (noting that under Section 30.02(a)(3), the State must prove “that,
after entry into the habitation, appellant formed an intent to commit, and did commit, a
felony, theft or an assault”) (emphasis added) (citations omitted).
        45 Herrold, 883 F.3d at 545–46.
        46 Id. at 546 (Haynes, J., dissenting) (citing Bonilla, 687 F.3d 188 (4th Cir. 2012)).
        47 Id. (citing Priddy, 808 F.3d 676 (6th Cir. 2015)).
        48 Id.

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                                      No. 14-11317
unprivileged entry AND the actual commission or attempted commission of a
crime; mere intent is not enough.” 49 In the dissent’s view, the statute thus
includes all necessary generic elements—including the intent to commit a
crime, “here as evidenced by the actual commission or attempted commission
of the crime, not mere intent.” 50 For these reasons, mindful of the constraints
of Castillo-Rivera, Van Cannon has little relevance here, despite the
similarities of the Minnesota and Texas statutes.
                                          B.
      Next, Herrold argues generic burglary requires “breaking and entering
or similarly unlawful activity,” while Section 30.02(a)(3) requires none. In
Descamps v. United States, the Supreme Court held that the California
burglary statute was non-generic because it lacked this requirement. 51 Herrold
urges that the same result should follow here.
      The California statute at issue in Descamps states that a “person who
enters” certain locations “with intent to commit grand or petit larceny or any
felony is guilty of burglary.” 52 Nothing in the statute modifies “enters”—it is
not required that the person enter unlawfully, without consent, or by breaking
and entering. Generic burglary, though, “requires an unlawful entry along the
lines of breaking and entering.” 53 Because California burglary “does not, and
indeed covers simple shoplifting,” it was non-generic. 54
      Herrold cannot tie this holding to Section 30.02(a)(3), which labels as
burglary an entrance “without the effective consent of the owner” but does not
require a breaking. Statutes that require proof of unlawful or unconsented



      49 Id.
      50 Id.
      51 570 U.S. 254, 277 (2013).
      52 CAL. PENAL CODE § 459.
      53 Descamps, 570 U.S. at 264.
      54 Id.

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                                       No. 14-11317
entry have not been held non-generic on that basis, unlike statutes like
California’s that require nothing more than entry. 55
       Given that Taylor reads generic burglary to “include not only aggravated
burglaries, but also run-of-the-mill burglaries involving an unarmed offender,
an unoccupied building, and no use or threat of force,” 56 the Seventh Circuit
concluded that unlawful or unauthorized entry is “the practical equivalent of
the older term ‘breaking and entering.’” 57 Thus, entering a building “without
authority” satisfied the Descamps requirement of “an unlawful entry along the
lines of breaking and entering.” 58
       The Sixth Circuit similarly rejected the argument that Descamps
renders the Tennessee burglary statute non-generic, and Tennessee’s and
Texas’s statutes both contain the “without the effective consent of the property
owner” language. 59 On remand after the Supreme Court’s decision in Stitt, the
Sixth Circuit stated Descamps did not “comprehensively define generic
burglary.” 60 Instead, it “merely concluded that California’s burglary statute,
which did not require any unlawful or unprivileged entry (either by affirmative
or passive acts of deception)” was non-generic. 61 The Sixth Circuit in Stitt noted


       55  Compare Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) (rejecting the
argument that Descamps made an entry “without authority” non-generic), and United States
v. Mungro, 754 F.3d 267, 270 (4th Cir. 2014) (concluding that because North Carolina’s
statute prohibited breaking or entering without the consent of the owner, it constituted
generic burglary, even after Descamps), with United States v. Hiser, 532 Fed. App’x 648,
(Mem)–649 (9th Cir. 2013) (concluding a Nevada statute, which allowed for convictions that
did not include unlawful entry, was “quite similar to that of California’s” and non-generic in
light of Descamps).
        56 Taylor, 495 U.S. at 597.
        57 Dawkins, 809 F.3d at 956.
        58 Id.
        59 United States v. Stitt, No. 14-6158, 2019 WL 3074788, at *2 (6th Cir. July 15, 2019)

(unpublished).
        60 Id. at *3.
        61 Id. (“[T]he Supreme Court was not presented with—and therefore did not provide

any holding regarding—the fine distinctions between ‘unlawful entry’ and ‘breaking and
entering or similar conduct’ or between passive and affirmative acts of deception.”).
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other circuits “have generally concluded that when someone enters a building
‘without consent’ and with the intent to commit a burglary, they have
necessarily entered the building ‘unlawfully’ pursuant to generic burglary.” 62
      It follows that Descamps cannot do the work in this case that Herrold
asks. No Texas burglary conviction can stand without proof that the entry or
remaining-in was without the owner’s effective consent. This satisfies the
generic burglary definition of Taylor, including the requirement of unlawful
breaking or similar activity noted in Descamps.
      Herrold raises two additional arguments related to the “entry” element.
One is that the statute contemplates burglary of a facility open to the public,
which Descamps bars. 63 But the requirement that entry be “without the
effective consent of the owner” adequately incorporates this principle. One who
enters a public facility has consent to do so. We are pointed to no case holding
otherwise. Herrold’s last argument as to entry is that the statute allows
conviction where the burglar has legal authority to enter the facility, relying
on Mack v. State, where the defendant’s name was on the apartment lease but
he had moved out and stopped paying rent. 64 But this contention is also
explained by the effective-consent requirement. None of the cases Herrold
relies on go beyond generic burglary’s unlawful-entry requirement. He cannot
satisfy Castillo-Rivera.
                                           C.
      Finally, Herrold argues “burglary,” as used in the ACCA, is
unconstitutionally vague. A violent felony is one that is: “burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that



      62  Id. at *4.
      63  Descamps, 570 U.S. at 275 (“[G]eneric burglary’s unlawful-entry element excludes
any cases in which a person enters premises open to the public, no matter his intent.”).
       64 Mack v. State, 928 S.W.2d 219 (Tex. App.—Austin 1996, pet ref’d)).

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                                         No. 14-11317
presents a serious potential risk of physical injury to another.” 65 The latter
clause was known as the residual clause, and in Johnson the Supreme Court
held it was unconstitutionally vague. 66 The Johnson Court was “convinced that
the indeterminacy of the wide-ranging inquiry required by the residual clause
both denies fair notice to defendants and invites arbitrary enforcement by
judges.” 67 Herrold essentially asks us to extend the Johnson reasoning to
“burglary.” But Johnson stated that it “does not call into question application
of the Act to the four enumerated offenses,” 68 and we take it at its word. The
term “burglary”—despite the difficulties of defining its contours, holding them
in focus, and applying them to varied state statutes—does not bring the
difficulties attending a felony that “involves conduct that presents a serious
potential risk of physical injury to another.”
      Herrold points to the precedential changes over this litigation, but as the
Government notes, the sequence of events undercuts Herrold’s fair-notice
argument. His prior burglary convictions were under Section 30.02(a)(1),
which was and is generic burglary. So when he unlawfully possessed a gun in
2012, he had fair notice that, if caught, his prior burglary convictions would be
ACCA predicates.
                                             III.
      Before Quarles and Stitt, we held that the Texas burglary statute is non-
generic “because it criminalizes entry and subsequent intent formation rather
than entry with intent to commit a crime.” 69 Herrold’s old arguments no longer
avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic—
and Herrold’s three prior felonies are therefore qualifying predicates for a


      65 18 U.S.C. § 924(e)(2)(B)(ii).
      66 135 S. Ct. 2551, 2557 (2015).
      67 Id.
      68 Id. at 2563.
      69 Herrold, 883 F.3d at 541.

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                              No. 14-11317
sentence enhancement under the ACCA. The judgment of conviction and
sentence is AFFIRMED. The mandate shall issue forthwith.




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