     Case: 16-20081     Document: 00514475719          Page: 1   Date Filed: 05/16/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                  No. 16-20081                          FILED
                                Summary Calendar                    May 16, 2018
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                        Clerk


               Plaintiff - Appellee

v.

JESUS LEONARDO MONTALVO DAVILA, also known as Jesus Montalvo,
also known as Jesus L. Montalvo,

               Defendant - Appellant




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


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Defendant-Appellant Jesus Montalvo Davila moves to recall the
mandate and for leave to file an out-of-time petition for panel rehearing in light
of United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc). In addition,
the Federal Public Defender moves to be reappointed as Montalvo’s counsel on
appeal. We grant the motions.
                                            I
      In 2015, Montalvo pleaded guilty to reentering the United States in
violation of 8 U.S.C. § 1326(a) and (b)(2). The presentence report recommended
applying   a     16-level   “crime    of   violence”    enhancement            pursuant           to
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                                 No. 16-20081
§ 2L1.2(b)(1)(A)(ii) of the 2015 Sentencing Guidelines based on Montalvo’s
prior conviction for burglary of a habitation under Texas Penal Code § 30.02(a).
Montalvo objected, arguing that his prior conviction did not qualify for that
enhancement because Texas Penal Code § 30.02(a) is an “indivisible” statute
and is categorically broader than generic “burglary of a dwelling,” the pertinent
“crime of violence” enumerated in the 2015 Guidelines. See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (2015). The district court overruled the objection. With the
enhancement, Montalvo faced a Guidelines range of 57 to 71 months in prison.
The district court granted Montalvo’s request for a downward variance and
sentenced him to 47 months in prison. Had the enhancement not been applied,
Montalvo maintains he would have faced a Guidelines range of 24 to 30 months
in prison.
      Montalvo appealed, challenging his sentence on the same grounds as in
the district court. He argued that the Supreme Court’s intervening decision in
Mathis v. United States, 136 S. Ct. 2243 (2016), supported finding the Texas
burglary statute to be indivisible, but a panel of this court soon rejected that
contention in United States v. Uribe, 838 F.3d 667, 670–71 (5th Cir. 2016).
Because Uribe foreclosed Montalvo’s indivisibility argument, we affirmed his
sentence. United States v. Montalvo Davila, 688 F. App’x 285 (5th Cir. 2017).
Judgment was entered on May 1, 2017. On May 4, 2017, the court granted the
Federal Public Defender’s motion to withdraw as Montalvo’s counsel. The
mandate issued on May 23, 2017.
      On February 20, 2018, the en banc court issued its decision in Herrold,
holding that the Texas burglary statute is indivisible and overruling Uribe.
Herrold, 883 F.3d at 529 (“In light of Texas case law, we hold that Texas Penal
Code §§ 30.02(a)(1) and (a)(3) are not distinct offenses, but are rather separate
means of committing one burglary offense. To the extent that it is inconsistent


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                                  No. 16-20081
with this holding, we also overrule our earlier decision in United States v.
Uribe.”). The mandate in Herrold issued on February 28, 2018.
      On March 2, 2018, Montalvo filed his motion to recall the mandate and
for leave to file an out-of-time petition for panel rehearing. The Federal Public
Defender thereafter moved to be reappointed as Montalvo’s counsel.
                                        II
      This court has the “inherent power to recall [its] mandates.” Calderon v.
Thompson, 523 U.S. 538, 549 (1998); United States v. Emeary, 794 F.3d 526,
527–28 (5th Cir. 2015) (Dennis, J., in chambers). “Our authority to recall our
own mandate is clear,” United States v. Tolliver, 116 F.3d 120, 123 (5th Cir.
1997), but it is not unbounded. Fifth Circuit Rule 41.2 provides that “[o]nce
issued a mandate will not be recalled except to prevent injustice.” This rule
reflects the general precept that recalling the mandate is appropriate “only in
extraordinary circumstances.” Calderon, 523 U.S. at 550.
      When faced with a motion to recall its mandate, this court must balance
two opposing interests: the interest in “prevent[ing] injustice” in the case at
hand, 5TH CIR. R. 41.2, and the interest in maintaining the finality of the
judgment already rendered in the case. Assessing the relative weights of these
competing considerations and determining whether the overall balance
warrants recalling the mandate lies within the court’s sound discretion. Am.
Iron & Steel Inst. v. EPA, 560 F.2d 589, 594–95 (3d Cir. 1977) (“Above all, . . .
recall of a mandate is a mode of relief that falls within the ambit of a court’s
discretion[,] . . . [a]nd decisions concerning the propriety of such relief must be
rendered on a case-by-case basis.”). Exercise of that discretion is subject to
certain parameters, however. In particular, a proper exercise of discretion
requires that the court give due regard to relevant precedent. In re Volkswagen
of Am., Inc., 545 F.3d 304, 310 & n.4 (5th Cir. 2008) (en banc) (“[A] court must
exercise its discretion within the bounds set by . . . relevant, binding
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precedents.”); see also United States v. Escalante-Reyes, 689 F.3d 415, 425–26
(5th Cir. 2012) (en banc) (explaining that the en banc court’s decision to
exercise its discretion under the fourth prong of plain-error review was
consistent with precedent). Prior caselaw can be relevant to a decision to recall
the mandate in two respects. First, it can assist in identifying appropriate
factors to weigh against the countervailing interest in finality. Second, since
any decision to recall the mandate (or not) reflects a particular instance of a
court having balanced the competing interests, a prior decision may direct the
same court toward a specific result in a later case. How strongly a given
precedent guides a court’s discretion in a later case largely depends on the
factors present in each case and the relative weight assigned to those factors. 1
Within the metes and bounds set by relevant precedent, however, courts retain
ample room to make the case-specific judgment calls that inhere in
discretionary rulings of this sort.
                                              III
       Relying primarily on this court’s precedent in Tolliver, Montalvo argues
that recalling the mandate in this case is appropriate because: (1) Herrold has
rendered our previous decision affirming his sentence “demonstrably wrong,”
and (2) failure to recall the mandate would produce an unwarranted disparity
between him and similarly situated defendants in other cases. We agree that




       1  For example, suppose a court recalled the mandate in Case A based on three factors.
Due regard for precedent would militate in favor of the court exercising its discretion to recall
the mandate in a later case, Case B, provided that: (1) the same three factors are present in
Case B, (2) each of the three factors weighs in favor of recalling the mandate in Case B at
least as strongly as the same factor weighed in favor of doing so in Case A, and (3) the finality
interest in Case B is no stronger than it was in Case A. If additional factors favoring recall
are present in Case B but were absent in Case A, recalling the mandate in Case B becomes
an even more compelling prospect. On the other hand, if condition (1), (2), or (3) is not met,
and if Case A does not provide other guidance, then Case A will exert less of a constraining
force on the outcome in Case B.
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both of these factors favor recall and find that a third consideration—
Montalvo’s demonstrated diligence in asserting his claim—does as well.
                                           A
      Courts exist not merely to decide cases, but to decide them correctly. See
W. Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702, 704
(5th Cir. 1954) (recognizing “two principles of judicial administration founded
on sound public policy, namely, that litigation must finally and definitely
terminate within a reasonable time and that justice must be done unto the
parties”). The public interest in correcting an erroneous conviction or sentence
“may counsel a more generous recall rule in criminal cases” than in other
contexts. 16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 3938, p. 880 (3d ed. 2012)
(hereinafter, “WRIGHT & MILLER”).
      Thus, we have recognized that recalling the mandate is appropriate
when a subsequent decision of the Supreme Court or this court renders a
previous decision “demonstrably wrong.” Tolliver, 116 F.3d at 123; United
States v. Fraga-Araigo, 281 F.3d 1278, 2001 WL 1692406, at *1 (5th Cir. 2001)
(unpublished decision). 2 A previous decision is “demonstrably wrong” if it
“directly conflicts with” the subsequent decision. Tolliver, 116 F.3d at 123; see
also Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 90 (2d Cir. 1996) (“One
circumstance that may justify recall of a mandate is ‘[a] supervening change
in governing law that calls into serious question the correctness of the court’s
judgment.’” (quoting McGeshick v. Choucair, 72 F.3d 62, 63 (7th Cir. 1995))).
      In Tolliver, this court recalled its mandate after the Supreme Court
“clearly overrule[d] [the] precedent upon which [this court] had relied to



      2 For purposes of recalling the mandate, we perceive no basis for distinguishing
between subsequent decisions of the Supreme Court and subsequent decisions of this court.
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affirm” a defendant’s convictions. 116 F.3d at 124. The same circumstance is
present here and favors recalling the mandate at least as strongly as it did in
Tolliver. Herrold is a “subsequent decision” that “directly conflicts with” our
previous decision affirming Montalvo’s sentence. Herrold holds that the Texas
burglary statute is broader than generic burglary, meaning that Montalvo’s
prior conviction under that statute does not qualify for the 16-level “crime of
violence” enhancement he received. See Herrold, 883 F.3d at 529. Had Herrold
been decided at the time we issued our previous decision, we would not have
followed Uribe’s contrary holding and would not have affirmed Montalvo’s
sentence. The interest in correcting our decision, now that Herrold has
rendered it “demonstrably wrong,” weighs heavily in favor of recalling the
mandate in this case. 3
                                             B
       “Recalling the mandate is also appropriate ‘where there is a danger of
incongruent results in cases pending at the same time.’” Tolliver, 116 F.3d at
123 (quoting Am. Iron & Steel Inst., 560 F.2d at 594); accord Greater Boston
Television Corp. v. FCC, 463 F.2d 268, 278–79 (D.C. Cir. 1971); see also 16
WRIGHT & MILLER § 3938, p. 880 (citing “the desire to achieve like treatment
of defendants in like situations” as a factor favoring recalling the mandate in
criminal cases). In Tolliver, the court granted a defendant’s motion to recall
the mandate after the Supreme Court vacated his co-defendants’ convictions



       3  The Government asserts that we should not recall the mandate because Montalvo
could seek relief from his sentence by filing a motion under 28 U.S.C. § 2255. We are not
persuaded, as it is far from clear that § 2255 would offer relief for Montalvo’s claim. See
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). We also reject the Government’s
contention that recalling the mandate would not be “prudent” because the Solicitor General
has petitioned the Supreme Court for a writ of certiorari in Herrold. The en banc court’s
decision in Herrold is, and remains, binding precedent in this circuit “until the Supreme
Court provides contrary guidance.” Neville v. Johnson, 440 F.3d 221, 223 (5th Cir. 2006)
(citation and internal quotation marks omitted).
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                                     No. 16-20081
under the same statute. 116 F.3d at 123–24. Combined with the previous
factor, the court found that the potential incongruity made recall “appropriate
and in the interest of justice.” Id. (relying on Gradsky v. United States, 376
F.2d 993, 995 (5th Cir. 1967)).
      Failure to recall the mandate in the present case would create an
unwarranted sentencing disparity between Montalvo and similarly situated
defendants in cases where the mandate has not yet issued. 4 Although these
individuals are not Montalvo’s co-defendants, the resultant disparity would
undermine a central purpose of the Sentencing Guidelines, see Tapia v. United
States, 564 U.S. 319, 324–25 (2011) (noting that a central concern with the
system that preceded the Sentencing Guidelines was that it produced
significant sentencing disparities among similarly situated defendants);
Mistretta v. United States, 488 U.S. 361, 365, 368 (1989), and the categorical
approach, see Taylor v. United States, 495 U.S. 575, 590, 600–01 (1990). The
interest in avoiding such a discrepancy counsels in favor of recalling the
mandate at least as strongly as the “danger of incongruent results” did in
Tolliver. This factor weighs significantly in favor of granting Montalvo’s
motion.
                                            C
       There are no per se time limits or any precise procedural hurdles that a
movant must satisfy for a court to recall its mandate. See Emeary, 794 F.3d at
529 (recalling mandate more than five years after it issued); Tolliver, 116 F.3d
at 123–24 (recalling mandate even though movant did not petition Supreme
Court for a writ of certiorari). Nonetheless, whether a movant has diligently



      4 By “similarly situated defendants,” we mean defendants in other, unrelated criminal
cases who received sentence enhancements due to the same prior conviction as Montalvo and
whose appeals challenging those sentences were pending in this court during the same
timeframe as Montalvo’s appeal.
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pursued his claim or otherwise demonstrated a “true interest” in obtaining his
desired relief can be a relevant consideration. See Fraga-Araigo, 2001 WL
1692406, at *2 (“[T]he apparent lack of true interest on the part of the movant
would tend to show that injustice has not been done.”).
       The Government faults Montalvo for not filing a petition for rehearing
en banc or a petition for a writ of certiorari. However, Montalvo objected to his
sentence enhancement in the district court, not just on appeal. That shows
sufficient diligence on his part. The court in Tolliver did not rely on this
consideration, but it weighs substantially in favor of recalling the mandate in
this case.
                                             D
       Turning to the overall balance of interests in this matter, we conclude
that the finality interest is readily outweighed by the factors on the other side
of the scale. We recognize that “[f]inality is essential to both the retributive
and the deterrent functions of criminal law.” Calderon, 523 U.S. at 555.
Requiring Montalvo to serve an extended prison term due to an erroneous
sentence, however, does not serve those purposes. See 18 U.S.C. § 3553(a)
(instructing courts to “impose a sentence sufficient, but not greater than
necessary” to accomplish the sentencing purposes set forth in § 3553(a)(2),
which include retribution and deterrence). The finality interest here is
therefore no greater than in other cases, including Tolliver. 5




       5   Concerns based on federalism and the nature of habeas review, both of which
underlay much of the reasoning in Calderon, see 523 U.S. at 555–57, are not present here.
See Conley v. United States, 323 F.3d 7, 14 (1st Cir. 2003) (noting that Calderon “was
explicitly directed at the recall of a mandate in a habeas proceeding in order to revisit the
merits of an earlier decision denying habeas corpus relief to a state prisoner,” and that
considerations are different where a decision involving direct review of “intra-federal
proceedings” is at issue (citations, brackets, and internal quotation marks omitted)).
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       Though we would reach the same result even without the benefit of
precedent, Tolliver is particularly useful in guiding our exercise of discretion.
The same two factors that led this court to recall its mandate in Tolliver are
present in this case and support the same result here at least as much as they
did there. See 116 F.3d at 123–24. Furthermore, the court in Tolliver did not
consider the movant’s diligence; here, that factor favors granting Montalvo’s
motion. In sum, the present case provides even more convincing grounds for
recalling the mandate than Tolliver. In a different case involving different
considerations, a different result could very well obtain. But here, recalling the
mandate is necessary “to prevent injustice.” We exercise our discretion to do
so.
                                       IV
       Accordingly, IT IS ORDERED that the court’s May 4, 2017 order
granting the Federal Public Defender’s motion to withdraw as counsel is
VACATED, and the Federal Public Defender’s motion for reappointment as
counsel is GRANTED.
       IT IS FURTHER ORDERED that Montalvo’s motion to recall the
mandate and for leave to file a petition for panel rehearing out of time is
GRANTED.




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                                  No. 16-20081
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting from granting
the motion to recall the mandate and the two related motions:

      The motion to recall the mandate should be denied because this case falls
far short of presenting the “grave, unforeseen contingenc[y]” required by
precedent.    Calderon v. Thompson, 523 U.S. 538, 550 (1998).               More
particularly, the majority’s interpretation of the “incongruent results” basis for
recall from our court’s Tolliver opinion is overly broad, United States v.
Tolliver, 116 F.3d 120, 123 (5th Cir. 1997); and, that overstatement skews the
controlling discretionary standard, Thompson, 523 U.S. at 549. As discussed
infra, the majority’s interpreting Tolliver’s incongruent-results recall-basis to
benefit a wide range of those sentenced under the same advisory Guideline, see
Order at n.4, opens the door to requiring recall of the mandate any time the
Supreme Court or our en-banc court changes the law.
      In addition, our local rule’s permitting recalling a mandate only “to
prevent injustice” requires our considering other relevant factors, some of
which the majority does not discuss. Those factors include, inter alia: Herrold
overturned established precedent in a narrow 8–7 decision; and, under that
earlier precedent, Davila was correct when decided. 5th Cir. R. 41.2; United
States v. Herrold, 883 F.3d 517, 541–42 (5th Cir. 2018) (en banc).
                                        I.
      An analysis of Tolliver shows the instant case contains no “grave,
unforeseen contingenc[y]”. Thompson, 523 U.S. at 550. The two rationales for
recalling the mandate in Tolliver combined to create the “extraordinary
circumstances” required to do so; they were not alternatives, each sufficient for
that purpose. Id.; see generally Tolliver, 116 F.3d 120.
      As the majority in this instance notes, our court recalled the mandate in
Tolliver because “a subsequent decision of the Supreme Court or this court
render[ed] a previous decision ‘demonstrably wrong’”, and “there [was] a
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danger of incongruent results in cases pending at the same time”. Order at 5–
7 (citing Tolliver, 116 F.3d at 123) (emphasis added). That both of these factual
predicates were present in Tolliver is important for properly applying the
factually-intensive discretionary standard for recall.
      The facts in Tolliver are instructive: Eight defendants were convicted of
drug offenses, with six of those eight also convicted of firearms offenses, all
“arising from a narcotics conspiracy and gang war in New Orleans”. 116 F.3d
at 122. After our court affirmed the firearms convictions for the six defendants
under the “use” prong of 18 U.S.C. § 924(c)(1), United States v. Tolliver, 61 F.3d
1189, 1218 (5th Cir. 1995), two of those six co-conspirators (Sterling and
Moore) sought Supreme Court review. Tolliver, 116 F.3d at 123.
      The Court granted certiorari, vacated, and remanded in the light of its
recent decision in Bailey v. United States, 516 U.S. 137 (1995). Moore v. United
States, 519 U.S. 802 (1996). On remand, this court in Tolliver held Bailey
“render[ed]” our court’s prior decision “demonstrably wrong” because Bailey
held “the mere possession of firearms for the protection of or to embolden an
offender is not enough to constitute ‘use’ under § 924(c)(1)”. Tolliver, 116 F.3d
at 124.
      Prior to that decision on remand, Mets, another of the six co-conspirators
convicted of firearms offenses, moved to recall the mandate, in order to permit
our court’s considering his case with Sterling and Moore’s on remand in the
light of Bailey. Id. at 123. Our court granted Mets recall-relief, in order not to
create an “incongruent result” between Mets and his co-conspirators, Sterling
and Moore, but refused to grant recall-relief to the three other defendants
convicted of the firearms offenses because they did not file a timely certiorari
petition or a motion to recall the mandate. Id. at 124.
      That Tolliver involved co-conspirators and a change in the law is
important because, as stated by the source on which the Court relied in
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Thompson, and the majority relies in its order, “it is difficult to justify recall of
a mandate, destroying finality and repose, simply on the ground that the court
of appeals reached a wrong decision”. 16 Charles Alan Wright et al., Federal
Practice and Procedure § 3938 (3d ed. 2012) (cited by Thompson, 523 U.S. at
550; and Order at 5–6). Similarly, decisions from other circuits reflect that,
under the controlling discretionary standard, a change in the law is generally
insufficient, alone, to justify recalling the mandate. E.g., Marino v. Ortiz, 888
F.2d 12, 14 (2d Cir. 1989) (denying relief where “[t]he motion . . . is nothing but
an attempt to reopen a final judgment because of a subsequent change in the
law”); United States v. Tulare Lake Canal Co., 677 F.2d 713, 715 (9th Cir. 1982)
(“A change in controlling authority or a conviction that the court erred are
ordinarily not alone sufficient grounds for recall of a mandate after final
judgment.”); In re Union Nacional de Trabajadores, 527 F.2d 602, 604 (1st Cir.
1975) (recalling the mandate where “our original decision was demonstrably
wrong and created manifest injustice” (emphasis added)); Powers v. Bethlehem
Steel Corp., 483 F.2d 963, 964 (1st Cir. 1973) (“Alleged erroneous rulings of law
are generally not held to be sufficiently unconscionable to justify reopening a
judgment not void when issued.”) (quoted by Sargent v. Columbia Forest
Prods., Inc., 75 F.3d 86, 90 (2d Cir. 1996) (recalling the mandate based on a
“variety of factors”, not merely because there was a change in the law)); Greater
Boston Television Corp. v. F.C.C., 463 F.2d 268, 277 & n.12 (D.C. Cir. 1971)
(“[T]he power to recall mandates should be exercised sparingly and is not to be
availed of freely as a basis for granting rehearings out of time for the purpose
of changing decisions even assuming the court becomes doubtful of the wisdom
of the decision that has been entered and become final.” (internal quotation
omitted)).
      The wisdom of these decisions is self-evident. Obviously, the mandate
cannot be recalled in every case where there is a change in the law, absent
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                                  No. 16-20081
some other “extraordinary circumstance[]”. Thompson, 523 U.S. at 550. “The
sparing use of the power [to recall the mandate] demonstrates it is one of last
resort, to be held in reserve against grave, unforeseen contingencies.” Id.
      Were our discretionary recall-power to be applied liberally, all losing
parties in any appeal, criminal or civil, would move to recall the mandate every
time the Supreme Court or our court en banc changed the law. In the criminal
context, recalling the mandate any time there is a change in the law would
conflict with criminal law’s “paramount” interest in finality and the general
rule that changes in criminal law do not apply retroactively. Id. at 557; see 28
U.S.C. § 2255; Teague v. Lane, 489 U.S. 288, 307 (1989) (The “general rule [is]
nonretroactivity for [criminal] cases on collateral review”); e.g., In re Jackson,
776 F.3d 292, 294–96 (5th Cir. 2015) (Supreme Court decision on the meaning
of “violent felony” under the Armed Career Criminal Act was not a new rule of
constitutional law, and was, therefore, not retroactively applicable to cases on
post-conviction relief.).
      That a change in the law alone is insufficient to recall the mandate is
important, because the majority’s interpretation of Tolliver’s “danger of
incongruent results” basis for recall is overly broad. The majority purports to
limit that basis to “similarly situated defendants”, defined broadly as
“defendants in other, unrelated criminal cases who received sentence
enhancements due to the same prior conviction as [Davila] and whose appeals
challenging those sentences were pending in this court during the same
timeframe as [Davila’s] appeal”. Order at n.4 (emphasis added). Obviously,
this interpretation is not only unworkable because it applies the basis broadly
to factually unrelated cases, as discussed infra, but it is also unworkable
because the temporal limitation is no limitation at all.
      The limitation, which arbitrarily sets the temporal threshold for recall-
relief at cases that “were pending in this court during the same timeframe as
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                                  No. 16-20081
[Davila’s]”, id., is far too vague for application of this “extraordinary” form of
relief, Thompson, 523 U.S. at 550, as demonstrated by the key dates in Davila’s
case. Davila illegally reentered this country in July 2015, after being deported
following his felony conviction; he pleaded guilty that November; our panel
affirmed his sentence on 1 May 2017; the mandate issued on 23 May; and our
court decided Herrold on 20 February 2018. The “same timeframe”, in this
context, could mean any appeal pending between 2015 (perhaps even 2014)
and February 2018.
       Because the majority applies this recall-basis to all cases “pending” in
the same “timeframe”, in effect, any defendant sentenced under the 2015
version of the Sentencing Guidelines may be granted relief. Accordingly, this
dissent limits discussion of “similarly situated defendants” to mean those in
“unrelated criminal cases” who received a 16-level enhancement following a
Texas-burglary conviction, pursuant to Texas Penal Code § 30.02(a).
       Contrary to the majority’s position, “similarly situated defendants”
cannot be interpreted so broadly as to include “unrelated criminal cases”. See
Order at n.4. A narrower, more appropriate reading makes plain this is not
the “grave, unforeseen contingenc[y]” envisioned by the discretionary
standard. Thompson, 523 U.S. at 550.
       The “incongruent results” basis was narrowly interpreted in Tolliver: As
stated supra, defendants seeking relief in Tolliver were co-conspirators, 116
F.3d at 123; for Sterling and Moore’s convictions, the Court granted certiorari,
vacated, and remanded, id; and our court recalled co-conspirator Mets’
mandate so he would not be treated differently than Sterling and Moore, id. at
124.
       Obviously, Tolliver is distinguishable.    The majority’s order finds a
danger of “incongruent results” even though Davila’s case is not factually
connected to Herrold’s. Their only connection is that they were both convicted
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                                 No. 16-20081
of burglary and our en banc court changed the law.             Any sentencing
discrepancies here are not the type of “incongruent results” with which Tolliver
was concerned.
      Interpreting the incongruent-results recall-basis so broadly as to include
“similarly situated defendants” in “unrelated criminal cases”, as the majority’s
order does, allows this court to recall the mandate every time there is a change
in the law; but, that is contrary to Supreme Court precedent. Under such a
rule, any criminal defendant who is convicted under the same statute or
sentenced under the same advisory Guideline may be granted a new trial or
resentencing. Take Tolliver, for example: Our court granted recall-relief only
to the co-conspirator who had filed a timely motion to recall, requiring a
stronger factual connection than being convicted under the same statute. Id.
      The narrow scope of Tolliver’s incongruent-results basis for recall is
important because, as discussed supra, under the controlling discretionary
standard, that there was a change in the governing law should not be sufficient
in every case to recall the mandate. “[T]he profound interests in repose” cannot
tolerate a recall of the mandate for every “similarly situated defendant” every
time there is a change in the governing law. Thompson, 523 U.S. at 550.
                                      II.
      Again, this court may recall the mandate only “to prevent injustice”. 5th
Cir. R. 41.2. As the majority states correctly at 3–4, in determining whether
failure to recall the mandate would produce “injustice”, the court must consider
all relevant factors. E.g., Sargent, 75 F.3d at 90. “Injustice” is synonymous
with “unfairness”, and we should consider all relevant factors to determine
what is just and fair on the facts of this case. Injustice, Merriam-Webster,
merriam-webster.com/dictionary/injustice (last visited 10 May 2018).
      The majority’s order fails to consider relevant factors weighing against
granting relief. More particularly, the order does not discuss that, inter alia:
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                                 No. 16-20081
Herrold overruled United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), in a
very narrow 8–7 decision, with a lengthy and well-reasoned dissent; Davila
was correct when decided; and, as the dissent in Herrold recognizes, “[t]he
effect of” Herrold’s ruling Texas Penal Code § 30.02(a) convictions do not
constitute generic burglary “is to render all burglary convictions in the second-
most populous state in the country nullities as far as the [Armed Career
Criminal Act] is concerned”. Herrold, 883 F.3d at 542 (Haynes, J., dissenting).
In addition, the interests of finality and the circumstances of Davila’s case
weigh against granting his three motions.
                                       A.
      The first factor weighing against granting Davila recall-relief is that our
panel opinion in Davila does not fit neatly into the definition of “demonstrably
wrong”.     Tolliver, 116 F.3d at 123.          The root of “demonstrably”—
“demonstrate”—means “to show clearly”, or “to prove or make clear by
reasoning   or   evidence”.      Demonstrate,      Merriam-Webster,      merriam-
webster.com/dictionary/demonstrate (last visited 10 May 2018). Although the
majority opinion in Herrold is undoubtedly now the law of this circuit, pending
resolution of the Government’s certiorari petition, the 8–7 decision in Herrold
shows it was anything but “clear” that our court’s prior interpretation was
“wrong”. Tolliver, 116 F.3d at 123. If anything, our prior precedent was
“wrong” simply because eight of 15 judges thought it wrong. See Payne v.
Tennessee, 501 U.S. 808, 845 (1991) (Marshall, J., dissenting) (criticizing the
5–4 majority for “discard[ing]” precedent on the basis that “five or more
Justices now disagree”) (emphasis in original).
      As then-Judge Cardozo recognized in discussing a divided New York
court, “[t]he closeness of the division attests the measure of the doubt”. People
ex rel. Hayes v. McLaughlin, 160 N.E. 357, 358 (N.Y. 1928). In then-Judge
Cardozo’s words, the seven judges’ dissenting in Herrold demonstrates, at the
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                                 No. 16-20081
very least, a high “measure of doubt” regarding the “demonstrabl[e]
wrong[ness]” of this court’s pre-Herrold jurisprudence. Id.; see Tolliver, 116
F.3d at 123. Along that line, the strong dissent in Herrold shows the issue was
subject to reasonable dispute. See Puckett v. United States, 556 U.S. 129, 135
(2009) (for plain-error review, contrasting error that is “clear or obvious” to
error “subject to reasonable dispute”; only the former constitutes plain error).
      That seven of our judges would have upheld Herrold’s sentence
mitigates, to some extent, the requisite “injustice” to Davila based on our
court’s changing the law in favor of criminal defendants after Davila’s right to
have his sentence reviewed was exhausted. Indeed, had the then two new
members of our court participated in the en banc decision, the en-banc court
very well could have reached a different rule. Herrold, 883 F.3d at n.*. And,
the Government has filed a certiorari petition in the Supreme Court. United
States v. Herrold, 17-1445 (filed 19 Apr. 2018).   In short, Davila was not so
objectively, obviously wrong as to obligate our recalling the mandate, even if
that were our only consideration.
                                       B.
      In that regard, another factor weighing against granting recall-relief is
that Davila was correct when decided under this court’s precedent and
mandatory rule of orderliness. United States v. Conde-Castaneda, 753 F.3d
172, 175–77 (5th Cir. 2014) (holding Texas Penal Code § 30.02(a) was divisible
and convictions under § 30.02(a)(1) qualified as generic burglary); Soc’y of
Separationists, Inc. v. Herman, 939 F.2d 1207, 1211 (5th Cir. 1991) (“[O]ne
panel may not overrule the decision, right or wrong, of a prior panel in the
absence of [a change in statutory law or] an intervening contrary or
superseding decision by the court en banc or the Supreme Court.”).
      It is undoubtedly unfair to allow a decision to stand when it was our
court that made a clear or obvious error, such as overlooking precedent. See,
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                                 No. 16-20081
e.g., United States v. Emeary, 794 F.3d 526, 528 (5th Cir. 2015) (Dennis, J., in
chambers) (recalling mandate when defendant’s “appointed attorney and this
court both committed plain error in reviewing [defendant’s] sentence”); United
States v. Fraga-Araigo, 2001 WL 1692406, at *2 (5th Cir. 20 Nov. 2001). Far
less unfair is when, as here, our panel did exactly what it was supposed to do:
apply the rule of orderliness to affirm Davila’s sentence based on established
precedent. Soc’y of Separationists, Inc., 939 F.2d at 1211. That other cases
have not made a distinction between decisions that were correct when decided
and those that were wrong when decided should not distract from this court’s
weighing all relevant factors before employing this “extraordinary”, and,
importantly, discretionary, remedy of recalling the mandate. Thompson, 523
U.S. at 549–50.
                                      C.
      Toward that end, the facts and circumstances surrounding Davila’s
sentencing are significant. He pleaded guilty to burglary of a habitation, a
very serious crime; but, after Herrold, his burglary for the advisory Guidelines
base-offense enhancement purposes essentially does not “count[]”. Herrold,
883 F.3d at 542 (Haynes, J., dissenting).    Again, as the dissent in Herrold
notes: “The effect of the majority opinion . . . is to render all burglary
convictions in the second-most populous state in the country nullities as far as
the [Armed Career Criminal Act] is concerned”. Id. To go one step further, as
stated correctly by the majority’s order at 2, Herrold effectively nullified
burglary convictions for purposes of Guideline 2L1.2(b)(1)(A)(ii) (2015) (then
applying 16-level enhancement for “crime of violence”). Id. at 529 (overruling
Uribe, 838 F.3d at 670–71).
      Although the categorical approach for application of a Guideline at
sentencing does not permit considering the facts of defendants’ case, Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016), the facts of Davila’s burglary
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                                  No. 16-20081
conviction must be considered when determining whether it is “unjust” that
his sentencing decision remain final. See United States v. Matias-Sanchez, 716
F. App’x 306, 308 (5th Cir. 2018) (Under the fourth prong of plain-error
review—whether the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings”—“we take a holistic approach . . . analyzing
the individual facts of the case and whether failure to grant relief would result
in a ‘miscarriage of justice’”.). The facts of Davila’s burglary conviction are
consistent with Texas Penal Code § 30.02(a)(1), the section of the statute that
qualified, pre-Herrold, as generic burglary. Conde-Castaneda, 753 F.3d at 176.
      Witnesses at the scene of the burglary saw Davila and two others exiting
a shattered window in a neighbor’s house, carrying stolen electronics
equipment; and the police apprehended Davila with the stolen goods. The
victim did not know Davila, indicating he had felonious intent when he
unlawfully entered the victim’s home.          See Herrold, 883 F.3d at 531.
Accordingly, Davila was convicted for activity that would have justified the
crime-of-violence enhancement, but for the structure of the Texas statute.
                                        D.
      Finally, the interests of finality and the nature of our sentencing system
counsel our extreme caution in disturbing the finality of a criminal defendant’s
sentence. The interests of finality are absolutely “paramount” in the criminal-
justice system. Thompson, 523 U.S. at 557. The Supreme Court’s directive on
this point bears repeating: “Finality is essential to both the retributive and
the deterrent functions of criminal law.           Neither innocence nor just
punishment can be vindicated until the final judgment is known. Without
finality, the criminal law is deprived of much of its deterrent effect.” Id. at 555
(internal quotations omitted). These considerations, among others, propel the
criminal law’s general rule that new rules of constitutional law are not applied
retroactively to cases on collateral review. Teague, 489 U.S. at 307; Williams
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                                  No. 16-20081
v. Taylor, 529 U.S. 420, 436 (2000) (“AEDPA’s purpose [is] to further the
principles of comity, finality, and federalism.”).
      A liberal application of our inherent, but discretionary, power to recall
the mandate would disrupt our current sentencing system should the case be
remanded for resentencing. (Here, the majority also grants leave to file an out-
of-time petition for panel rehearing; the petition seeks remand for
resentencing.)
      Under that system, the Guidelines are not “mandatory and binding on
all judges”; the Guidelines are only advisory. United States v. Booker, 543 U.S.
220, 233, 260–62 (2005). “[T]he Guidelines [are] the starting point”, but they
“are not the only consideration”: “after giving [the] parties an opportunity to
argue for whatever sentence they deem appropriate, the district judge should
then consider all of the [18 U.S.C.] § 3553(a) [sentencing] factors to determine
whether they support the sentence requested by a party”. Gall v. United
States, 552 U.S. 38, 49–50 (2007). This system requires district courts to
expend substantial time and judicial resources in sentencing.
      To recall the mandate in this case—not to mention all cases with
“similarly situated defendants”, consistent with the majority’s expansive
application of our discretionary standard—sets in motion our possibly
remanding for resentencing. Should remand be ordered, the probation office
and district court must expend significant resources in re-investigating and re-
calculating Davila’s, and perhaps others’, sentences.
      Along that line, the probation officer will probably have to prepare a
supplemental presentence-investigation report (PSR), after a thorough re-
investigation of Davila’s circumstances. Fed. R. Crim. P. 32(c)(1). The court
must then recalculate Davila’s advisory Guidelines-sentencing range, using an
outdated (2015) version of the Guidelines. This task could prove difficult with
Guideline 2L1.2 because a defendant’s prior conviction might, or might not,
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                                  No. 16-20081
count as an “aggravated felony”, or otherwise fit many of the other sentencing
enhancements. U.S.S.G. § 2L1.2(b)(1)(B) (2015).
      But resentencing would not end with calculating the proper, advisory
sentencing range:     The court will have to expend further resources in
resentencing Davila. It cannot merely calculate his sentence without the 16-
level enhancement. It will have to “(1) [re]calculate[] the advisory sentencing
range; (2) [re]consider[] the specific offender characteristics and grounds for
departure enumerated in the Guidelines; and (3) [re]weigh[] the applicable
factors in 18 U.S.C. § 3553(a) as a whole”. United States v. Jacobs, 635 F.3d
778, 782 (5th Cir. 2011). This would deplete the distict court’s precious judicial
resources, especially because of the possible large number of defendants in
Davila’s circumstances. Herrold, 883 F.3d at 542 (Haynes, J., dissenting) (“In
just a single year, Texans reported 152,444 burglaries.”).
      That the Guidelines are discretionary is important in the light of the
factual circumstances surrounding Davila’s criminal history and sentencing,
which also weigh against our granting him recall-relief. The Guidelines being
advisory, the court could find the 18 U.S.C. § 3553(a) sentencing factors
warrant a variance outside the advisory Guidelines-sentencing range. Jacobs,
635 F.3d at 782.
      Not only did Davila plead guilty to burglary of a habitation and illegal
reentry, he also pleaded guilty to three separate instances of assault, all in the
year 2012, the same year he committed burglary. These crimes are significant
because, following his burglary conviction in December 2012, he was
incarcerated in a Texas-state prison for one year (even though he was
sentenced to three years’ imprisonment), and deported in December 2013. He
had been released only for 14 months before he was arrested for illegally
reentering the United States in March 2015, a crime to which he pleaded
guilty.
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                                 No. 16-20081
      Despite Davila’s prior crimes, he was sentenced to ten months below the
minimum for his advisory Guidelines-sentencing range: He was sentenced to
47 months’ imprisonment, even though his advisory range was 57 to 71
months. Although Herrold bars the resentencing court from applying the 16-
level enhancement, Davila’s being convicted of a serious felony could be
considered under the 18 U.S.C. § 3553(a) sentencing factors. Arguably, the
same sentence of 47 months’ imprisonment is not unreasonable in the light of
Davila’s extensive criminal history, need to protect the public, and need to
deter other criminal conduct. 18 U.S.C. § 3553(a).
      Along that line, the resentencing court may consider a departure because
Davila had at least one arrest that did not count towards his criminal-history
calculation.   U.S.S.G. § 4A1.3(a)(1) (permitting departure “[i]f reliable
information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes”). His
PSR states his “criminal history may be under-represented, because [he] has a
prior arrest for manufacturing/delivery of a controlled substance on August 27,
2012, which was dismissed because [he] was convicted on burglary of a
habitation . . . instead”. In reweighing the 18 U.S.C. § 3553(a) sentencing
factors in the light of Davila’s criminal history and his burglary offense’s not
“count[ing]” for sentencing-enhancement purposes, the court might consider
an upward departure or variance.      Herrold, 883 F.3d at 542 (Haynes, J.,
dissenting).
      On remand, Davila’s new advisory Guidelines-sentencing range, with a
possible 8-level increase for “aggravated felony”, would be 24 to 30 months’
imprisonment, 17 months less than his current 47-month sentence. But, as
discussed supra, that advisory calculation is not the end of the analysis. And,
most importantly, Davila’s case may be but one of many. See id. Simply put,
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                               No. 16-20081
our criminal justice system was not designed to incorporate wide-spread
resentencing in response to every change in governing law.
                                    III.
     For the foregoing reasons, I respectfully DISSENT from granting the
motion to recall the mandate and the two related motions.




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