     Case: 16-11601      Document: 00514233128         Page: 1    Date Filed: 11/10/2017




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


                                      No. 16-11601
                                                                                FILED
                                                                        November 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

FREDRICK LYNN CAIN,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 3:16-CR-26-1




Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*

       Fredrick Cain appeals his sentence in regard to the treatment of his
conviction under TEX. HEALTH & SAFETY CODE § 481.112(a) as a “serious drug
offense” for purposes of an enhancement under the Armed Career Criminal Act


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11601
(“ACCA”). Finding his argument foreclosed by circuit precedent, we affirm.

                                             I.
       Cain pleaded guilty of possession of a firearm after a felony conviction
(Count I) and possession of a controlled substance with intent to distribute
(Count II). The presentence report (“PSR”) identified three 1 Texas drug convic-
tions for possession with intent to deliver a controlled substance, TEX. HEALTH
& SAFETY CODE § 481.112(a), triggering enhancements under 18 U.S.C.
§ 924(e)(2)(A)(ii). The district court overruled Cain’s objection and sentenced
him, within the enhanced range, to 192 months for Count I with a concurrent
36 months for Count II.

                                             II.
       The district court did not err in ruling that Cain’s convictions were
serious drug offenses. A conviction under Section 481.112(a) qualifies for the
ACCA enhancement under § 924(e). 2 Cain acknowledges that binding circuit
precedent forecloses his position but contends that United States v. Johnson,
135 S. Ct. 2251 (2015), and Torres v. Lynch, 136 S. Ct. 1619 (2016), undermine
that precedent. We disagree.

       Johnson addressed the residual clause under the violent-felonies portion
of the ACCA, which Winbush and Vickers distinguished from the serious-drug-
offense portion. Torres’s discussion of how to define “described” in the Immi-
gration and Nationality Act does not undermine Winbush’s and Vickers’s dis-
cussions of the word “involving” in the ACCA. Those decisions based the inter-
pretation of § 924(e) on an analysis of Taylor v. United States, 495 U.S. 575


       1The PSR listed four convictions as qualifying under the ACCA, but the government
conceded at sentencing that the fourth did not support an ACCA sentence.
       2See United States v. Vickers, 540 F.3d 356 (5th Cir. 2008); United States v. Winbush,
407 F.3d 703 (5th Cir. 2005).
                                             2
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                                     No. 16-11601
(1990), and the statutory context of the ACCA. 3

      Because no Supreme Court decisions “expressly or implicitly” 4 overrule
Winbush or Vickers, we AFFIRM.




      3 See Vickers, 540 F.3d at 365; Winbush, 407 F.3d at 707–08 (citing United States v.
King, 325 F.3d 110 (2d Cir. 2003)).
      4  United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (internal quotation
omitted).
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