     Case: 09-40529   Document: 00513128278     Page: 1   Date Filed: 07/24/2015




                         REVISED JULY 24, 2015

          IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT                       United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                              ___________________                     July 23, 2015

                                No. 09-40529                         Lyle W. Cayce
                                                                          Clerk
                             Conference Calendar
                             ___________________

UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

BENNIE D. EMEARY, JR.,

            Defendant - Appellant

                           _______________________

                Appeal from the United States District Court
                     for the Eastern District of Texas
                          _______________________

JAMES L. DENNIS, Circuit Judge, in chambers:
      “The Supreme Court has recognized that courts of appeals have an
inherent power to recall their mandates.” Goodwin v. Johnson, 224 F.3d 450,
459 (5th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 549 (1998)).
“Our authority to recall our mandate is clear.” United States v. Tolliver, 116
F.3d 120, 123 (5th Cir. 1997). “Nonetheless, the Supreme Court has instructed
that we may exercise that power only upon a showing of ‘extraordinary
circumstances.’ ” United States v. Fraser, 407 F.3d 9, 10 (1st Cir. 2005) (citing
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Calderon, 523 U.S. at 550). In this circuit, the court’s mandate “will not be
recalled except to prevent injustice.” 5TH CIR. R. 41.2. Under these standards,
I conclude that the mandate in this criminal appeal of Bennie D. Emeary, Jr.
shall be recalled. As I will explain, Emeary’s appointed attorney and this court
both committed plain error in reviewing Emeary’s sentence and failing to
notice that he was condemned to five more years of incarceration than the law
allows. In my view, this plain error can and should be corrected.
      On February 9, 2005, Emeary was indicted for illegally possessing
firearms after having been convicted of a felony, which is generally punishable
by a maximum term of ten years of imprisonment. 18 U.S.C. § 924(a)(2).
However, if the defendant has previously been convicted of three “violent
felonies” within the meaning of the Armed Career Criminal Act (“ACCA”), then
the minimum term of imprisonment is fifteen years. § 924(e)(1). Under the
ACCA, the definition of “violent felony” includes, in pertinent part, crimes that
“[are] burglary, arson, or extortion, involve[] use of explosives, or otherwise
involve[] conduct that presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B)(ii). Emeary’s indictment alleged that he had been
convicted of three prior “violent felonies,” including, pertinent here, a 1998
conviction in Texas for “burglary of a building.” The bill of information for the
1998 conviction reveals that it was under § 30.02(a)(3) of the Texas Penal Code,
for “enter[ing] a building” “without the effective consent of the owner” and
“commit[ing] or attempt[ing] to commit a felony or theft.” 1
      On May 25, 2005, pursuant to a plea agreement with the government,
Emeary pleaded guilty to the illegal-possession-of-firearms charge.                 The
district court sentenced Emeary on December 7, 2005. The court classified


      1  The Texas statute has been amended since Emeary’s conviction and now prohibits
entering a building or habitation without consent and committing or attempting to commit
“a felony, theft, or an assault.” (Emphasis added.) The amendment is immaterial here.
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Emeary as subject to the ACCA’s fifteen-year minimum sentence because,
including the 1998 conviction under Texas Penal Code § 30.02(a)(3), he had
been convicted of three “violent felonies.” The court sentenced Emeary to
fifteen years of incarceration.
       Emeary filed a notice of appeal on May 13, 2009. 2 On September 14,
2009, Emeary’s appointed attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), representing that he had reviewed the case
and concluded that there were no nonfrivolous arguments to present on
Emeary’s behalf. (In fact, he went further and represented that there was “no
reversible error in this case.” Anders Br., at 24.) He therefore requested the
court’s leave to withdraw as Emeary’s attorney. Under Anders, 386 U.S. at
744, that triggered this court’s obligation to conduct “a full examination of all
the proceedings [and] to decide whether the case is wholly frivolous.” On
February 12, 2010, we concluded that there were no nonfrivolous issues
presented and dismissed the appeal. United States v. Emeary, 365 F. App’x
552, 553 (5th Cir. 2010) (unpublished). The court’s mandate issued on March
8, 2010. Both Emeary’s attorney and we made a serious omission, as I will
explain.
       Neither Emeary’s attorney in his Anders brief nor this court in our
opinion dismissing Emeary’s appeal referenced United States v. Constante, 544
F.3d 584 (5th Cir. 2008), which issued on October 6, 2008 and was thus
established circuit precedent at the time of Emeary’s appeal. In Constante,
544 F.3d at 587, this court held that convictions under Texas Penal Code


       2  The appeal was delayed because Emeary’s appointed attorney failed to timely
initiate it, which the district court held amounted to unconstitutional ineffective assistance
of counsel. To remedy the attorney’s failure and afford Emeary an appeal, the district court
entered a “reinstated” judgment on May 1, 2009. Emeary’s May 13 notice of appeal is from
the May 1 judgment. See United States v. Tapp, 491 F.3d 263 (5th Cir. 2007); United States
v. West, 240 F.3d 456 (5th Cir. 2001).

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§ 30.02(a)(3) do not constitute “violent felony” convictions under the ACCA. 3
Emeary, of course, was sentenced to fifteen years of imprisonment based on his
Texas Penal Code § 302.03(a)(3) conviction’s classification as a “violent felony”
conviction.
       On November 10, 2014, Emeary filed a motion with this court to recall
the mandate in this appeal. He pointed to Constante and claimed that under
it, his sentence was excessive and plainly erroneous. On December 8, 2014, I
denied the motion, United States v. Emeary, 773 F.3d 619 (5th Cir. 2014),
principally because I believed that it was unclear whether Texas Penal Code
§ 30.02(a)(3) offenses may be deemed “violent felonies” by dint of falling under
the so-called “residual clause” of the ACCA’s “violent felony” definition, an
issue upon which Constante was not, in my estimation, crystal clear. (See
supra, note 3 for a full explanation of the issue.) On June 26, 2015, however,



       3 I must note that the precise scope of Constante’s holding is reasonably debatable.
The ACCA’s definition of “violent felony” includes crimes that “[are] burglary, arson, or
extortion, involve[] use of explosives, or otherwise involve[] conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Constante’s express
analysis addresses whether Texas Penal Code § 30.02(a)(3) offenses constitute “burglaries”
under the “violent felony” definition, and Constante clearly answers “no.” But did Constante
also decide whether such offenses constitute ACCA “violent felonies” because they fall under
the so-called “residual clause” of the “violent felony” definition—i.e., because they “otherwise
involve[] conduct that presents a serious potential risk of physical injury to another”?
Theoretically, a state offense may constitute a “violent felony” because it falls under the
residual clause even though it doesn’t constitute a “burglary.” See James v. United States,
550 U.S. 192, 212 (2007) (the residual clause “can cover conduct that is outside the strict
definition of, but nevertheless similar to, generic burglary”). In United States v. Ramirez,
507 F. App’x 353, 354 (5th Cir. 2013) (unpublished), this court read Constante narrowly and
construed it as holding only that the Texas offense does not constitute a “burglary,” thus
leaving as an open question whether it falls under the residual clause. Subsequently, though,
in United States v. St. Clair, No. 14-50287, 2015 WL 1611666, at *3 n.2 (5th Cir. Apr. 13,
2015) (unpublished), this court rejected Ramirez and read Constante more broadly as
“clearly” holding that the Texas offense is neither a “burglary” nor encompassed within the
residual clause. In any event, the scope of Constante is academic now that the Supreme Court
has held that the residual clause is unconstitutional and unenforceable. See Johnson v.
United States, 135 S. Ct. 2551 (2015). Per Constante, the offense is not a “burglary.” Per
Johnson, the residual clause is irrelevant.
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the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551 (2015),
that the residual clause of the “violent felony” definition is vague,
unconstitutional, and unenforceable. Post-Johnson, it is now clear without any
room for doubt that Texas Penal Code § 30.02(a)(3) offenses are not “violent
felonies” under the ACCA, period. (And, there is reason to think that such
conclusion was “plain” before Johnson, too, under Constante alone. See United
States v. St. Clair, No. 14-50287, 2015 WL 1611666, at *3 n.2 (5th Cir. Apr. 13,
2015) (unpublished).) On July 6, 2015, Emeary filed the present renewed
motion to recall the mandate.
      To summarize, Emeary was sentenced to fifteen years of incarceration
because the district court erroneously classified his prior Texas Penal Code
§ 30.02(a)(3) conviction as a “violent felony” conviction under the ACCA.
Emeary should not have been sentenced to more than ten years of
incarceration, the correct statutory maximum.        His attorney should have
appealed the erroneous sentence.
      To be fair and complete, Emeary’s plea agreement did include an appeal
waiver. There are, however, recognized exceptions to appeal waivers. See
United States v. Batamula, 788 F.3d 166, 169 n.5 (5th Cir. 2015) (government
forfeited the right to enforce the appeal waiver); United States v. Powell, 574
F. App’x 390, 394 (5th Cir. 2014) (unpublished) (explaining that other circuits
have created a “miscarriage-of-justice” exception to the enforceability of appeal
waivers but this circuit has not yet decided whether to join them); United
States v. De Cay, 359 F. App’x 514, 516 (5th Cir. 2010) (unpublished) (same).
Emeary’s attorney, under his duty to act “zealous[ly] for the indigent’s
interests,” Smith v. Robbins, 528 U.S. 259, 278 n.10 (2000), should have
pressed to avoid the appeal waiver, but he failed to do so. See also Anders, 386
U.S. at 744 (“[Counsel’s] role as advocate requires that he support his client’s


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appeal to the best of his ability.”). At the very least, the potential for avoiding
the appeal waiver barring Emeary from appealing his plainly erroneous
sentence is a “possibly important issue” that should have been, but was not,
identified in the Anders brief. See United States v. Garland, 632 F.3d 877, 879
(5th Cir. 2011) (quoting United States v. Johnson, 527 F.2d 1328, 1329 (5th
Cir. 1976)). In fact, in Garland, 632 F.3d at 880, we faulted the attorney’s
Anders brief in that case for failing to “provide[] . . . facts about [the
defendant’s] prior convictions [and an] assessment of the validity of [a]
challenge to [how those prior convictions affected the defendant’s sentence].”
Nor did the deficient Anders brief address the defendant’s “characterization as
a career offender.” Id. So too here. By Garland’s standards, the Anders brief
in this case was inadequate. But, we accepted it, erroneously.
      Simply stated, the district court committed plain error by sentencing
Emeary to fifteen years of incarceration when the statutory maximum was ten,
and this court committed plain error when we deemed Emeary’s appeal
frivolous and dismissed it without any notice of the issue. The Supreme Court
has recognized that, while the Anders process is intended “to ensure that rights
are not forgone and that substantial legal and factual arguments are not
inadvertently passed over,” Penson v. Ohio, 488 U.S. 75, 85 (1988), the process
is imperfect and cannot “eliminate all risk of error,” Smith, 528 U.S. at 277 n.8.
That acknowledgment demands a concomitant willingness of courts to correct
plain errors that escaped notice, at least in some circumstances. In my view,
those circumstances are present here. A criminal defendant should not be
unlawfully condemned to five excessive years in prison—a “drastic loss of
liberty,” Penson, 488 U.S. at 85—based on the sort of clear and obvious error
we made in this case.
      The renewed motion to recall the mandate is GRANTED, the court’s


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mandate is RECALLED, the appeal is REINSTATED and EXPEDITED, and
the defendant is APPOINTED counsel. 4
       IT IS SO ORDERED.




       4 In addition to any other issues Emeary’s counsel will deem pertinent, the attorney
should address the following questions. First, does the government intend to enforce the
appeal waiver in Emeary’s plea agreement? See United States v. Acquaye, 452 F.3d 380, 381-
82 (5th Cir. 2006) (defense counsel has the duty to determine such). If so, second, is the
appeal waiver enforceable in the circumstances of this case? See Powell, 574 F. App’x at 394
(discussing “miscarriage-of-justice” exception to the enforceability of appeal waivers); De Cay,
359 F. App’x at 516 (same). Third, does Calderon v. Thompson, 523 U.S. 538, 554 (1998)
(even when the Antiterrorism and Effective Death Penalty Act is inapplicable, “a court of
appeals must exercise its discretion in a manner consistent with the objects of the statute”),
preclude this court from granting relief to Emeary? See Emeary, 773 F.3d at 621-22
(discussing the issue). The government, in its response, should address whether the
arguments it offers were forfeited when it failed to substantively respond to Emeary’s
motions to recall the mandate. See Perez v. Stephens, 784 F.3d 276, 282-83 (5th Cir. 2015)
(forfeiture by failure to timely raise an issue).
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