     Case: 17-40007    Document: 00515478417     Page: 1   Date Filed: 07/06/2020




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

                                                                        FILED
                                  No. 17-40007                       July 6, 2020
                                                                   Lyle W. Cayce
                                                                        Clerk
UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

v.

JOSHUA WALLACE,

             Defendant – Appellant.


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


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Joshua Wallace appeals the denial of his 28 U.S.C. § 2255 motion for
post-conviction relief, arguing that the district court erred in its determination
that three of his prior Texas burglary convictions qualified him for an enhanced
sentence under the Armed Career Criminal Act (ACCA). Because our binding
precedent holds that convictions under the Texas burglary statute do qualify
for the enhancement, we affirm.
                                        I.
      In 2014, Wallace pleaded guilty to possession of a firearm, having
previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and
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                                       No. 17-40007
924(a)(2). 1 The district court determined that Wallace had three qualifying
prior “violent felony” convictions and applied the ACCA enhancement to his
sentence. 2 We affirmed. See United States v. Wallace, 584 F. App’x 263, 265
(5th Cir. 2014), cert. denied, 135 S. Ct. 1512 (2015).
       Wallace then filed the instant § 2255 motion, contesting his sentencing
enhancement. The district court denied his motion, reiterating that Wallace
had three prior convictions qualifying as violent felonies for purposes of the
ACCA enhancement. It also denied Wallace a Certificate of Appealability
(COA).
       Wallace then asked this court for a COA. Application for Certificate of
Appealability, United States v. Wallace, No. 17-40007 (5th Cir. May 1, 2017).
We deferred action on his request pending our en banc opinion in Herrold,
which also involved the application of the ACCA enhancement to convictions
under the Texas burglary statute. See United States v. Herrold (Herrold I), 883
F.3d 517 (5th Cir. 2018) (en banc). Following our decision in that case, we
granted Wallace’s COA. Order, United States v. Wallace, No. 17-40007 (5th Cir.
Apr. 4, 2018). Before we could issue a ruling, however, the Supreme Court
vacated and remanded our Herrold decision. United States v. Herrold, 139 S.
Ct. 2712 (2019). We subsequently placed the instant case in abeyance pending
the issuance of a new en banc opinion. After our second Herrold opinion was


       1Wallace had earlier pleaded guilty to, and was sentenced for, this same offense. We
subsequently vacated that judgment and sentence on grounds not relevant to the instant
appeal. See United States v. Wallace, 551 F. App’x 193, 194 (5th Cir. 2014).

       2 The probation office initially noted two other “violent felony” convictions—one for a
fourth burglary and another for escape from custody. The fourth burglary conviction did not
seem to factor into the district court’s determination, and the escape-from-custody conviction,
although initially counting as one of the three convictions relied upon by the district court,
subsequently fell out of the case after the parties agreed that it could no longer serve as a
predicate following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015).

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published, United States v. Herrold (Herrold II), 941 F.3d 173 (5th Cir. 2019)
(en banc), we removed this case from abeyance and directed the parties to file
supplemental briefing addressing Herrold II’s effect, if any.
                                       II.
      The ACCA provides for an enhanced fifteen-year mandatory minimum
sentence if a defendant has three or more prior “violent felony” convictions. 18
U.S.C. § 924(e)(1). The Act specifically enumerates burglary as a “violent
felony,” id. § 924(e)(2)(B)(ii), which the Supreme Court has defined to require
“unlawful or unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime,” Taylor v. United States, 495 U.S.
575, 598 (1990).
      State burglary statutes no broader than this formulation are deemed
“generic”; those broader are considered “non-generic.” Mathis v. United States,
136 S. Ct. 2243, 2247 (2016). Only convictions under generic statutes count
toward the ACCA sentencing enhancement. Id. The Texas statute under which
Wallace was convicted defines burglary as:
      (a) A person commits an offense if, without the effective consent of
      the owner, the person:

      (1) enters a habitation, or a building (or any portion of a building)
      not then open to the public, with intent to commit a felony, theft,
      or an assault; or

      (2) remains concealed, with intent to commit a felony, theft, or an
      assault, in a building or habitation; or

      (3) enters a building or habitation and commits or attempts to
      commit a felony, theft, or an assault.
Tex. Pen. Code § 30.02(a).




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                                       No. 17-40007
       The question in this case, then, is whether section 30.02(a) is generic.
Herrold II concluded that it is. 941 F.3d at 182. As such, Wallace’s prior
burglary convictions qualify as predicates for the ACCA enhancement.
                                             III.
       Wallace, however, disputes that Herrold II answers the question. In his
supplemental brief, he argues that the Texas burglary statute is actually non-
generic because section 30.02(a)(3) does not require intent at any time during
commission of the offense. In other words, because the Supreme Court has
defined burglary as the “unlawful or unprivileged entry into, or remaining in,
a building or other structure, with intent to commit a crime,” Taylor, 495 U.S.
at 598 (emphasis added), and because section 30.02(a)(3), unlike the statute’s
other two subsections, does not specifically require intent, Wallace contends
that the statute is non-generic. 3
       Herrold made the very same argument—that section 30.02(a)(3) permits
conviction if, after unlawfully entering a habitation, the intruder commits a
reckless offense, i.e., a mens rea less than intent. See Herrold II, 941 F.3d at
178–79. The statute, he claimed, is therefore broader than the generic
definition such that convictions under it cannot qualify as predicates for the
ACCA enhancement. For support, he pointed to the Seventh Circuit’s decision
in Van Cannon v. United States, 890 F.3d 656, 663–64 (7th Cir. 2018). The
court there, confronting a similarly phrased state burglary statute, held that
the statute was broader than generic burglary because the crime never
required proof of intent. Id.



       3 In Herrold II, we confirmed that the Texas burglary statute is indivisible, 941 F.3d
at 177, meaning the whole statute is compared to the generic definition, not just the specific
provision under which the defendant was convicted, id. at 176 n.10. That means that even if
Wallace was convicted under sections 30.02(a)(1) or (2)—clearly requiring intent—those
convictions would not count toward the ACCA enhancement if we determined that section
30.02(a)(3) made the entire statute non-generic.
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                                 No. 17-40007
      We rejected Herrold’s argument, in part, because he failed to support his
analysis with applicable Texas case law. Herrold II, 941 F.3d at 178–79 (citing
United States v. Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc)).
Where Herrold failed, Wallace believes he can succeed. He cites to a handful of
Texas cases that he says have upheld convictions under section 33.02(a)(3) on
the basis of post-entry offenses requiring only recklessness. Because of that, he
claims that Herrold II does not resolve his case.
      But we did not end our analysis simply after observing that Herrold
neglected to cite any applicable Texas cases. Instead, we specifically stated
that “[w]e need look no further, but even if we did, Texas law rejects Herrold’s
no-intent interpretation.” Id. at 179 (emphasis added). We proceeded to cite
DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988), in which the
Texas Court of Criminal Appeals, contrasting section 30.02(a)(3) with the first
two subsections, concluded that the requirement in (a)(3) of an “attempted or
completed theft or felony . . . merely supplants the specific intent which
accompanies entry” in (a)(1) and (a)(2). Herrold II, 941 F.3d at 179 (quoting
DeVaughn, 749 S.W.2d at 65). We then explained how, immediately afterward,
the DeVaughn court quoted with approval the Practice Commentary
accompanying (a)(3), which interpreted (a)(3) burglary as “the conduct of one
who enters without effective consent but, lacking intent to commit any crime
upon his entry, subsequently forms that intent and commits or attempts a
felony or theft.” Id. (quoting DeVaughn, 749 S.W.2d at 65 (quoting Tex. Pen.
Code § 30.02 cmt. (West 1974))). Finally, we noted that Texas Court of Appeals
cases mirrored this formulation. Id. (citing Flores v. State, 902 S.W.2d 618, 620
(Tex. App.—Austin 1995, pet. ref’d) and Leaks v. State, 2005 WL 704409, at *2
(Tex. App.—Corpus Christi Mar. 24, 2005, pet. ref’d)).
      We did not stop there, though. We also cited with approval the dissenting
opinion in Herrold I, which itself agreed with the Fourth Circuit’s view that
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“(a)(3) substantively contains the requisite intent element because to attempt
or complete a crime requires intent to commit the crime.” 883 F.3d at 546
(Haynes, J., dissenting); see United States v. Bonilla, 687 F.3d 188, 193 (4th
Cir. 2012). That is, because (a)(3) “requires an unlawful or unprivileged entry
AND the actual commission or attempted commission of a crime,” the statute
necessarily includes all the generic elements—the intent is inherent in the
crime’s commission or attempt. Herrold I, 883 F.3d at 546 (Haynes, J.,
dissenting).
      Still, Wallace does not think this extended discussion spells doom for his
case. He claims that everything coming after the “but even if”—DeVaughn,
section 30.02(a)(3)’s Practice Commentary, the dissent in Herrold I—is merely
dicta. We are thus not bound to follow it. He argues that Herrold II’s holding
that section 30.02(a) is generic begins and ends with its discussion of Herrold’s
failure to supply relevant Texas case law.
      For support, Wallace points to two of our recent cases in which we made
a point to clarify when a discussion constitutes an alternative holding and not
dicta. See, e.g., Ramos-Portillo v. Barr, 919 F.3d 955, 962 n.5 (5th Cir. 2019)
(“This alternative holding is not dicta.”); United States v. Reyes-Contreras, 910
F.3d 169, 179 & n.19 (5th Cir. 2018) (en banc) (stating the same). That
clarification, he says, is missing in Herrold II. Moreover, the Herrold II court,
in concluding its discussion of this issue, stated that it was “mindful of the
constraints of Castillo-Rivera.” 941 F.3d at 180. To Wallace, the quoted
language indicates that Herrold’s failure to provide any supporting case law,
and that alone, served as the basis for this court’s holding. Having established
the discussion as dicta, and therefore not binding, Wallace sets out to prove
the dicta is wrong.
      We need not address that latter argument, though, because we disagree
with Wallace’s assertion that our holding in Herrold II is confined to Herrold’s
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                                  No. 17-40007
failure to provide supportive Texas cases. Even before we discussed that
failure, we confirmed that “[a]fter Quarles [v. United States, 139 S. Ct. 1872
(2019)], Texas’s statute is generic.” 941 F.3d at 177. And again, at the end of
the opinion, we unequivocally stated, without any modifiers or prefacing, that
“[w]e hold that Section 30.02(a)(3) is generic.” Id. at 182.
      As to Wallace’s point about dicta, although we did not explicitly say in
Herrold II that “this is an alternative holding,” we have in past cases signaled
an alternative holding simply by using a formulation similar to Herrold II’s
“even if.” See, e.g., United States v. Bueno, 585 F.3d 847, 850 n.3 (5th Cir. 2009)
(“[T]he court at most offered an alternative holding, a conclusion compelled by
its decision to start the substantial rights analysis with ‘Even were there error
that was plain . . . .’” (quoting United States v. Fernandez, 559 F.3d 303, 316
(5th Cir. 2009))); Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991)
(noting an alternative holding where the court “reiterated that even if the
employee had produced evidence of an oral contract, the contract would have
been barred by the statute of frauds” (internal quotation marks omitted)).
Because alternative holdings in this circuit “are binding precedent and not
obiter dictum,” Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015)
(quoting United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011)), we are
bound to follow them.
                                       IV.
      If the Texas burglary statute is generic, Wallace’s prior burglary
convictions qualify him for the ACCA enhancement. Our en banc court says
that it is. We must adhere to that. We therefore AFFIRM the district court’s
denial of Wallace’s § 2255 motion.




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