     Case: 10-40133 Document: 00511344271 Page: 1 Date Filed: 01/07/2011




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

                                                 FILED
                                                                           January 7, 2011
                                       No. 10-40133
                                                                            Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

CHRISTOPHER HELM,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 2:06-CR-521-1




Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*


       Christopher Helm appeals his sentence. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40133

                                        I.
      Helm pleaded guilty of possession of a firearm by a convicted felon in vio-
lation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The presentence investigation re-
port (“PSR”) showed a base offense level of 33, because Helm was an armed car-
eer criminal under the provisions of § 924(e), the Armed Career Criminal Act
(“ACCA”). The PSR applied an enhancement because Helm had three prior con-
victions under Texas Penal Code § 30.02(a) that, the PSR concluded, qualified
as “violent felonies” for purposes of the ACCA: two for burglary of a building and
one for burglary of a habitation. Had the sentence not been enhanced by the
ACCA, the base offense level would have been 17. After a reduction not at issue
in this appeal, the sentencing range was 180-188 months.
      Helm’s attorney agreed that the ACCA applied, although Helm objected
to the enhancement. The district court sentenced Helm to 180 months. Helm
directly appealed, claiming, inter alia, that the court erred in applying the
ACCA. This court affirmed.
      Helm filed for relief under 28 U.S.C. § 2255. Of the three constitutional
violations he alleged, one was for ineffective assistance of counsel for failing to
argue that his state convictions did not qualify as violent felonies under the
ACCA. Helm asserted that his attorney should have brought United States v.
Herrera-Montes, 490 F.3d 390 (5th Cir. 2007), to the court’s attention in the dir-
ect appeal. Between the time Helm had filed his initial brief and the time when
his reply brief was due, this court issued Herrera-Montes, which held that a prior
conviction under one subsection of a Tennessee statute criminalizing burglary
did not constitute a “generic burglary” for purposes of the ACCA, although con-
victions under the other subsections did. That statute was nearly identical to
§ 30.02(a), and thus, Helm contended, his attorney should have argued that the
reasoning of Herrera-Montes extends to the Texas statute.
      In response, the government conceded that this court ultimately had ex-

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tended Herrera-Montes to § 30.02(a) in United States v. Constante, 544 F.3d 584,
586 (5th Cir. 2008), and thus if Helm were being sentenced at that time, the evi-
dence in the record did not support an enhancement under the ACCA. Because
none of the judgments the government submitted at Helm’s sentencing reflected
under which specific subsection of § 30.02(a) Helm was convicted, the govern-
ment admitted that it was impossible to tell whether the ACCA had been prop-
erly applied.
      But even if Helm’s counsel was deficient in failing to raise Herrera-Montes
on appeal, there was no prejudice, the government argued, because Herrera-
Montes involved a Tennessee statute. Because a finding of error in Helm’s ap-
peal would require extending precedent, the error would not have been clear or
obvious, so the sentence would have been affirmed under plain-error review.
Notably, the government never stated under which subsections of § 30.02(a)
Helm was convicted, nor did it argue that the enhancement would have applied
anyway, thereby obviating any prejudice. And Helm also never argued that the
ACCA did not apply, but only that the government had failed to prove its bur-
den. Helm requested that his sentence “be vacated for further proceedings [for]
. . . a review of all state documents” to determine whether he “was actually con-
victed of a violent felony.”
      The district court determined that Helm did not “need to show with cer-
tainty that the Fifth Circuit would have reversed his sentence on appeal . . . .
He need only [have] show[n] a ‘reasonable probability’ that the result of the ap-
peal would have been different.” Finding that Helm had met that burden, the
court concluded only “that relief [was] warranted as to this single claim and that
Helm should be resentenced.” The government did not appeal that ruling.
      At resentencing, the probation officer informed the court that he had now
obtained the charging instruments for Helm’s prior convictions, which showed
under which subsections § 30.02(a) Helm had been convicted. The probation offi-

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cer and the government argued that the prior convictions were in fact valid pred-
icate offenses under the ACCA. Helm objected to the introduction of the charg-
ing instruments. The district court postponed sentencing and ordered further
briefing to determine whether it could consider the newly submitted evidence.
      At the second resentencing, the district court determined that the ACCA
did in fact apply and imposed the same 180-month sentence. Helm appeals the
sentence, arguing that the government should have been barred from introduc-
ing new evidence to support the ACCA enhancement.


                                                 II.
      Helm has never argued that his conviction does not warrant an enhance-
ment under § 924(e). Instead, he asserts that when a sentence has been vacated
because of a defect, the government may not introduce new evidence at resen-
tencing to cure the defect unless the vacatur was appealed or the case was re-
manded with an order to supplement the record.
      There are three lines of relevant cases. The first are cases in which a sen-
tence was appealed, the circuit court determined that the evidence at sentencing
was insufficient to warrant an enhancement, and the case was remanded for re-
sentencing so the government could supplement the record to cure the defect.
See United States v. Andrade-Aguilar, 570 F.3d 213, 218 (5th Cir. 2009); United
States v. Martinez-Paramo, 380 F.3d 799, 805 (5th Cir. 2004). In Andrade-Agui-
lar, 570 F.3d at 218, we conclusively determined that either party may present
new evidence at resentencing in those instances.
      The second line involves cases in which a sentence was appealed 1 and the
circuit court determined definitively that an enhancement should not apply
based on the evidence presented. That situation arose in Dahler v. United



      1
          Either directly or on habeas review.

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                                        No. 10-40133

States, 143 F.3d 1084 (7th Cir. 1998), in which, for an ineffective-assistance-of-
counsel claim, the defendant argued that one of his convictions was not a predi-
cate felony under the ACCA, so his attorney should have argued that the en-
hancement did not apply. The court agreed but held that the government was
allowed to introduce the defendant’s other convictions at resentencing to argue
that the enhancement was still proper.
      The third line of cases embodies the procedural posture allegedly before
us now: A sentence is appealed,2 the district court definitively holds that an en-
hancement is improper because of a defect, that decision is not appealed, and at
resentencing the government wishes to introduce new evidence to cure that same
defect. See United States v. Daugherty, 438 F.3d 445, 446-47 (5th Cir. 2006).
      In Daugherty, the defendant had four prior convictions, but the govern-
ment presented evidence of only three when arguing that the sentence should
be enhanced under the ACCA. As here, the defendant moved to vacate the sen-
tence under § 2255 for ineffective assistance. The district court held that one of
the three convictions did not qualify as a predicate felony under the ACCA, and
thus the defendant was entitled to resentencing. The government did not argue
that it could have proven up the fourth conviction to show that the enhancement
would have applied anyway (which would have shown that the defendant suf-
fered no prejudice), nor did it appeal the § 2255 relief.
      Had the government properly appealed in Daugherty, we would have been
presented there with the same situation the Seventh Circuit confronted in Dah-
ler. Instead, the government in Daugherty attempted to cure the defect at resen-
tencing. The defendant objected, arguing, as Helm does today, that once the dis-
trict court determined that the sentence was defective, the government could not
introduce new evidence at resentencing to cure the same defect. Because of a



      2
          Again, either directly or on habeas review.

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                                       No. 10-40133

plea agreement, however, this court did not decide the issue.
       We cannot answer that question in Helm’s appeal, either. Helm explicitly
requested that his sentence “be vacated for further proceedings [for] . . . a review
of all state documents” to determine whether he “was actually convicted of a vio-
lent felony.” The government could have either (1) appealed the district court’s
decision and argued that Helm suffered no prejudice because the enhancement
was in fact properly applied, or (2) acquiesced to the relief that Helm requested
and introduced at resentencing the indictments that Helm invited the district
court to review.
       The government took the latter path, which creates a situation similar to
that in Andrade-Aguilar and Martinez-Paramo. Had Helm argued in his § 2255
motion that his prior convictions could not be counted as predicate felonies under
the ACCA, and if the district court had held to that effect, we would be able to
address the merits of his argument. But he did not, and the district court deter-
mined only that the evidence at sentencing was insufficient to show that the
ACCA enhancement applied. We may not review any error Helm invited,3 so his
sentence must be, and is hereby, AFFIRMED.




       3
        See United States v. Sanchez-Lama, 122 F.3d 1067 (5th Cir. 1997) (unpublished) (ex-
tending Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., No. 97-50049, 975 F.2d 1134, 1137 (table),
1997 WL 464616, at *1 (5th Cir. Aug. 1, 1997), to criminal cases).

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