     Case: 18-40334       Document: 00514937178         Page: 1     Date Filed: 04/30/2019




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


                                       No. 18-40334
                                                                                     FILED
                                                                                 April 30, 2019
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk

               Plaintiff - Appellee

v.

ADAM ALFREDO FLORES, also known as Adam Flores,

               Defendant - Appellant




                   Appeals from the United States District Court
                        for the Southern District of Texas


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:
      Defendant        Adam      Alfredo     Flores    appeals     the    district            court’s
determination that he was subject to an enhanced mandatory minimum
sentence of fifteen years under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e). Flores also appeals his base offense level calculation under
U.S.S.G. § 2K2.1.           We VACATE the sentence and REMAND for a
resentencing. 1




      1   Flores does not challenge his conviction, which remains in place.
    Case: 18-40334    Document: 00514937178        Page: 2   Date Filed: 04/30/2019



                                    No. 18-40334
                               I.     Background
      In February 2018, Flores pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The following
criminal history is relevant to calculating his sentencing guideline range. In
1996, at age 15, Flores was adjudicated a juvenile delinquent for aggravated
assault with a firearm and sentenced to incarceration with the Texas Youth
Commission. On February 12, 2003, Flores pleaded guilty in Texas state court
to aggravated robbery and aggravated assault causing bodily injury stemming
from an incident on May 6, 2002 (Cause No. 02-CR-2120-D). That same day,
Flores also pleaded guilty to aggravated assault with a deadly weapon
stemming from an incident that occurred on July 14, 2002 (Cause No. 02-CR-
3450-D).
      Because Flores violated 18 U.S.C. § 922(g)(1) and had at least two prior
felony convictions for a crime of violence, Flores’s base offense level was 24.
See U.S.S.G § 2K2.1. The presentence report (PSR) determined, however, that
Flores’s two adult convictions and juvenile conviction subjected him to a
statutory ACCA enhancement as an armed career criminal because Flores had
three prior convictions for “violent felonies,” raising his base offense level to
33. See U.S.S.G § 4B1.4. Considering his three-level reduction for acceptance
of responsibility and criminal history category V, the total offense level of 30
resulted in a guideline range of 151 to 188 months. Because the mandatory
minimum sentence for an armed career criminal under ACCA is fifteen years
in prison, his guideline range increased to 180–188 months. Flores raised two
objections to the PSR. First, he argued he was not subject to the ACCA
mandatory minimum and an enhanced guideline level. Second, he argued his
unenhanced base offense level under U.S.S.G § 2K2.1 was incorrectly
calculated. The district court overruled Flores’s objections, agreed with the


                                         2
     Case: 18-40334       Document: 00514937178          Page: 3     Date Filed: 04/30/2019



                                       No. 18-40334
PSR, and sentenced Flores to 180 months in prison. Flores filed a timely
appeal and makes the same arguments he made in the district court.
                                     II.   Discussion
       A. ACCA Enhancement
       Flores first argues his juvenile adjudication for Texas aggravated assault
is not a “violent felony” for the purposes of an ACCA sentence enhancement. 2
We review the district court’s determination that a prior conviction qualifies
as a “violent felony” under ACCA de novo. United States v. Massey, 858 F.3d
380, 382 (5th Cir. 2017).
       A defendant convicted of violating 18 U.S.C. § 922(g)(1) is subject to a
maximum of ten years in prison. See 18 U.S.C. § 924(a)(2). Under ACCA,
however, the penalty is increased to a minimum of fifteen years if the
defendant has “three previous convictions . . . for a violent felony.” 18 U.S.C.
§ 924(e)(1). A “violent felony” is defined as
       any crime punishable by imprisonment for a term exceeding one
       year, or any act of juvenile delinquency involving the use or
       carrying of a firearm, knife, or destructive device that would be
       punishable by imprisonment for such term if committed by an
       adult, 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, involves the use of explosives,
       or otherwise involves conduct that presents a serious potential risk
       of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Thus, a juvenile adjudication may
qualify as an ACCA predicate offense only if it meets the requirements of
subsection (i) or (ii) and involves the use or carrying of a knife, firearm, or
destructive device.


       2 Flores also argues his juvenile adjudication suffered from various procedural defects.
This argument is foreclosed as an unauthorized collateral attack of a prior conviction in a
federal sentencing proceeding. See Custis v. United States, 511 U.S. 485, 487 (1994).

                                              3
    Case: 18-40334         Document: 00514937178          Page: 4     Date Filed: 04/30/2019



                                        No. 18-40334
      To determine whether a prior conviction qualifies as a violent felony
under ACCA, we traditionally apply the “categorical approach.” Descamps v.
United States, 570 U.S. 254, 257 (2013).                 This approach “examine[s] the
elements of the offense, rather than the facts underlying the conviction or the
defendant’s actual conduct, to determine whether the enhancement applies.”
United States v. Rodriguez-Negrete, 772 F.3d 221, 225 (5th Cir. 2014) (quoting
United States v. Teran-Salas, 767 F.3d 453, 458 (5th Cir. 2014)).                    If “the
elements of the statute forming the basis of the defendant’s conviction . . . are
the same as, or narrower than, those of the generic offense[,]” then there is a
categorical match and the enhancement is proper. Descamps, 570 U.S. at 257.
Conversely, a state crime cannot qualify as an ACCA predicate if its elements
are broader than those of a listed generic offense. Mathis v. United States, 136
S. Ct. 2243, 2251 (2016).
      We have followed Supreme Court precedent by applying the categorical
approach to determine whether a prior adult conviction qualifies as a predicate
ACCA offense, 3 but neither the Supreme Court nor our court has yet addressed
whether the categorical approach applies to juvenile adjudications “involv[ing]
the use or carrying of a firearm, knife, or destructive device” for ACCA
enhancement purposes.            The Supreme Court has consistently and clearly
applied the categorical (or modified categorical) approach in all manner of
cases where determination of a prior conviction’s status is necessary.                    Its
reasons for applying the categorical approach to adult convictions appear to
apply equally to juvenile adjudications: ACCA’s “text and history”; the “Sixth
Amendment concerns that would arise from sentencing courts making findings
of fact that properly belong to juries”; and “the practical difficulties and


      3   See, e.g., United States v. Espinoza, 733 F.3d 568, 571 (5th Cir. 2013).


                                                4
     Case: 18-40334       Document: 00514937178         Page: 5     Date Filed: 04/30/2019



                                       No. 18-40334
potential unfairness of a factual approach.”              Descamps, 570 U.S. at 267
(quoting, in part, Taylor v. United States, 495 U.S. 575, 600 (1990)). Indeed,
our sister circuits have consistently held the categorical approach applies in
this circumstance, with no circuit holding to the contrary. 4 We can discern no
basis to treat determination of the nature of juvenile adjudications differently
than adult convictions. Thus, we conclude we must apply the categorical
approach here.
       Using that approach, Flores argues that his juvenile adjudication based
on Texas aggravated assault did not categorically involve the use of a knife, a
gun, or a destructive device, and thus cannot be a predicate ACCA offense. The
United States concedes Flores is correct. 5
       Flores was adjudicated as a juvenile delinquent based on aggravated
assault under Texas law, which penalizes a person who commits an assault
that “(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).            For a juvenile adjudication to constitute a
predicate offense for an ACCA enhancement, it must “involv[e] the use or
carrying of a firearm, knife, or destructive device.”                     See 18 U.S.C.
§ 924(e)(2)(B). 6


       4 See United States v. Headbird, 832 F.3d 844, 846 (8th Cir. 2016); United States v.
Bankhead, 746 F.3d 323, 325 (8th Cir. 2014); United States v. Nevels, 490 F.3d 800, 808–09
(10th Cir. 2007); United States v. Rosa, 507 F.3d 142, 157–59 (2d Cir. 2007); United States v.
Wells, 473 F.3d 640, 645–46 (6th Cir. 2007); United States v. Burge, 407 F.3d 1183, 1187 (11th
Cir. 2005); United States v. Richardson, 313 F.3d 121, 126–28 (3d Cir. 2002).

       5We are not bound by the Government’s concessions, of course, but we note that it
would be time-saving and sensible if the Government would examine such concepts before
appearing in the district court so that the district court has the benefit of hearing such
concessions.

       6A “destructive device” is defined as any “explosive, incendiary, or poison gas—bomb,
grenade, rocket having a propellant charge of more than four ounces, missile having an

                                              5
     Case: 18-40334       Document: 00514937178         Page: 6    Date Filed: 04/30/2019



                                      No. 18-40334
       The elements of Flores’s crime, Texas aggravated assault, covers “a
greater swath of conduct than the elements of the relevant ACCA offense.”
Mathis, 136 S. Ct. at 2251. With respect to the first prong of Texas aggravated
assault, causing serious bodily injury does not categorically require the use or
carrying of a knife, firearm, or destructive device. As for the second prong, a
deadly weapon under Texas law is defined as “(A) a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury; or (B) anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” TEX. PENAL CODE
§1.07(a)(17). A deadly weapon under Texas law “could be anything,” including
a hand or foot. See Lane v. State, 151 S.W.3d 188, 191 & n.5 (Tex. Crim. App.
2004). Both prongs of Texas aggravated assault are broader and cover “a
greater swath of conduct” than the relevant ACCA offense for juvenile offenses.
Mathis, 136 S. Ct. at 2251. Thus, aggravated assault under Texas law does
not categorically require the use or carrying of a knife, firearm, or destructive
device, and cannot qualify as a predicate offense under ACCA for juvenile
adjudications. 7 Accordingly, we must vacate the sentence and remand for a
resentencing.
          B. Base Offense Level Calculation
       Flores also claims the district court erred when it determined his base
offense level was 24 under U.S.S.G § 2K2.1. Although we are remanding for a




explosive or incendiary charge of more than one-quarter once, mine[s]” or any combination of
these devices or devices like them. See 18 U.S.C. § 921(a)(4).
       7 This result highlights the difficulties caused by the categorical approach—it is

undisputed that Flores’s juvenile adjudication stems from an aggravated assault where he
caused serious bodily injury by shooting the victim with a firearm. Nonetheless, he will now
be treated differently than other juveniles who acted exactly the same way but were convicted
under a narrower statute. But, as stated before, in light of precedent, we conclude we must
apply the categorical approach, even if it leads to such an unfortunate outcome.

                                             6
    Case: 18-40334    Document: 00514937178     Page: 7   Date Filed: 04/30/2019



                                 No. 18-40334
resentencing, it makes sense to address this issue since it will arise again at
the new hearing. A defendant convicted for being a felon in possession receives
a base offense level of 24 if he committed the offense “subsequent to sustaining
at least two felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 2K2.1(a)(2). Flores argues his prior adult Texas
convictions should not have counted separately. We review the district court’s
application of the Sentencing Guidelines de novo and its factual findings for
clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
      Flores argues his convictions should be consolidated because he was
sentenced on the same day, February 12, 2003, for both aggravated robbery
and aggravated assault causing bodily injury (Cause No. 02-CR-2120-D), and
aggravated assault with a deadly weapon (Cause No. 02-CR-3450-D). The
Sentencing Guidelines, however, state that prior “sentences always are
counted separately if the sentences were imposed for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested for the first
offense prior to committing the second offense).” U.S.S.G. §4A1.2(a)(2). Here,
Flores was arrested on June 17, 2002, in Cause No. 02-CR-2120, for robbing
and assaulting a male victim on May 6, 2002. Flores was then arrested again
on October 2, 2002, in Cause No. 02-CR-3450-D, for the aggravated assault of
his girlfriend on July 14, 2002. Flores did not provide any evidence to rebut
this information, which was provided in the PSR. Therefore, the district court
did not err in counting the convictions separately and calculating Flores’s base
offense level.
      The sentence is VACATED, and the case is REMANDED to the district
court for a resentencing.




                                       7
