     Case: 17-40312      Document: 00514731521         Page: 1    Date Filed: 11/20/2018




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

                                                                                 FILED
                                      No. 17-40312                       November 20, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


               Plaintiff - Appellee

v.

ROLAND CASTRO,

               Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:16-CV-192


                         ON PETITION FOR REHEARING


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
      Defendant’s Petition for Panel Rehearing is GRANTED IN PART.
      IT IS ORDERED that our prior panel decision, United States v. Castro
(Aug. 15, 2018), is WITHDRAWN, and the following is SUBSTITUTED in its
place.




         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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      We again must decide the consequences of recent changes in sentencing
law for a defendant sentenced under prior law. Roland Castro was convicted
of being a felon in possession of a firearm. At his sentencing in 2000, the
district court determined that his three Texas convictions for burglary of a
habitation counted as violent felonies for purposes of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e).       As a result of being classified an
armed career criminal, Castro was sentenced to 20 years in prison. Castro
filed a successive motion for postconviction relief because recent decisions from
the Supreme Court and this court mean that his Texas burglary convictions no
longer count as violent felonies under the ACCA.
      A conviction for being a felon in possession of a firearm ordinarily carries
a maximum sentence of 10 years. 18 U.S.C. §§ 922(g)(1); 924(a)(2). But a
defendant guilty of that offense who has three prior convictions that are violent
felonies or serious drug offenses faces a punishment range of 15 years to life.
18 U.S.C. § 924(e)(1). Relevant to Castro’s case is the second definition of a
“violent felony,” which includes any felony that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”             Id. §
924(e)(2)(B)(ii). The list of offenses at the beginning of this definition is called
the enumerated offense clause. The latter portion of the definition that focuses
on the risk of physical injury an offense poses is called the residual clause; it
captures any offense regardless of its label so long as it poses that risk. After
years of struggling to determine which offenses fit within the residual clause,
the Supreme Court concluded the clause was unconstitutional because it was
too vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). A year later
it held that Johnson applied retroactively so it could be invoked by defendants
sentenced before the residual clause was invalidated. Welch v. United States,
136 S. Ct. 1257, 1268 (2016).
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                                  No. 17-40312
      Castro attempts to do so here. The problem for him is that when he was
sentenced the enumerated offense clause supported an ACCA enhancement for
his Texas convictions. In 2000, any conviction under section 30.02(a) of the
Texas Penal Code was considered generic burglary and thus counted as a
violent felony under the ACCA. See United States v. Silva, 957 F.2d 157, 162
(5th Cir. 1992). That is no longer the case because of a decision we reached
earlier this year. United State v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en
banc). But the en banc decision in Herrold does not allow the filing of a
successive motion for postconviction relief because it is not a constitutional
ruling made retroactive by the Supreme Court. 28 U.S.C. § 2255(h)(2); United
States v. Wiese, -- F.3d --, 2018 WL 3540892, at *5 (5th Cir. July 23, 2018)
(citing In re Lott, 838 F.3d 522, 523 (2016)). Castro’s ability to obtain relief
thus depends on showing he was sentenced under the now-unconstitutional
residual clause of section 924(e)(2)(B)(ii) rather than the enumerated offense
clause that precedes it. The complication is that the district court did not state
which part of the “violent felony” definition it was applying when it treated
Castro as an armed career criminal.
      We recently confronted this situation in Wiese. 2018 WL 3540892, at *3.
Wiese noted that some circuits ask if the sentencing court “may have” relied on
the residual clause with others asking whether it “more likely than not” did.
Compare United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018)
(more likely than not), and Potter v. United States, 887 F.3d 785, 788 (6th Cir.
2018) (rejecting “may have” standard), with United States v. Geozos, 870 F.3d
890, 896 (9th Cir. 2017) (using “may have” standard), and United States v.
Winston, 850 F.3d 677, 682 (4th Cir. 2017) (same). As in Wiese, we will assume
that the defendant bears the lesser burden of showing only that the court “may
have” relied on the clause because even that Castro cannot do.


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                                  No. 17-40312
      Not until years after Castro’s sentencing did we conclude that any
provision of the Texas burglary of a habitation statute was broader than
generic burglary. Wiese, 2018 WL 3540892, at *4 (citing United States v.
Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam) (holding that section
30.02(a)(3) is not generic burglary)). That means when Castro was sentenced
any conviction for Texas burglary of a habitation clearly qualified as a violent
felony under the enumerated offense clause. See Silva, 957 F.2d at 162, So
there is no basis for concluding that the district court’s application of the ACCA
depended on the residual clause. A residual clause is just that—something
that is “left over” and considered after the primary question has first been
reviewed.        Oxford     English    Dictionary     (3d    ed.,   Mar.     2010),
http://www.oed.com/view/Entry/163584 (last visited on Aug. 9, 2018). Because
the answer to the first question section 924(e)(2)(B)(ii) asks—whether a Texas
burglary offense is a violent felony because it is an enumerated offense—would
have been “yes” in 2000, there is no reason to believe the district court skipped
that first inquiry and decided the case on the less straightforward residual
clause question.
      In briefing submitted after Wiese issued, Castro tries to distinguish that
decision on two grounds. He first argues that while the Texas conviction would
have qualified in 2000 under the enumerated offense clause, the residual
clause would have also been on the “sentencing court’s radar” because, at that
time, burglary may have also qualified under the residual clause. See United
States v. Guadardo, 40 F.3d 102, 103 (5th Cir. 1994) (holding burglary met the
“crime of violence” definition in the similar residual clause of 18 U.S.C. § 16(b)).
But that was just as true in 2003, when Wiese was sentenced, as it was in 2000
when Castro was. Moreover, it is hard to believe a sentencing court would
have relied on the residual clause that our caselaw had not directly held


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                                       No. 17-40312
applied to Texas burglary, when it could have relied on the primary part of the
definition that we had squarely held did apply. 1
       Castro also points out that Wiese noted the sentencing court had
conviction documents showing he was convicted under subsection (a)(1) of the
Texas burglary offense. 2018 WL 3540892, at *4. But we do not see why that
requires a different result given that in 2000 any conviction for Texas burglary
of a habitation qualified as generic burglary. There was no need to resort to
the modified categorical approach, which is the point of considering state
conviction records, to reach that conclusion.
                                             ***
       Castro has failed to show that the sentencing court either more likely
than not, or even may have, relied on the residual clause of the ACCA to
enhance his sentence. We vacate the judgment of the district court and dismiss
Castro’s successive habeas petition for lack of jurisdiction.




       1 There is also the possibility that the district court believed Texas burglary qualified
both as an enumerated offense and under the residual clause. But that would not help Castro
because he has not shown that any reliance on the residual clause adversely affected his
sentence by affecting a determination under the enumerated offenses clause.
       .
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