     Case: 16-10438   Document: 00514013690    Page: 1   Date Filed: 05/31/2017




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

                                No. 16-10438                       FILED
                                                               May 31, 2017
                                                               Lyle W. Cayce
                                                                    Clerk
UNITED STATES OF AMERICA,

      Plaintiff - Appellee

v.

BRENTON THOMAS MASSEY,

      Defendant - Appellant




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


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Brenton Thomas Massey pleaded guilty to knowingly possessing a
firearm after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g)(1). Massey’s presentence report (PSR) determined that he had three
prior convictions for violent felonies or serious drug offenses. The Government
sought an enhanced penalty under the Armed Career Criminal Act (ACCA),
which provides that a person who violates § 922(g)(1) and who “has three
previous convictions” for “a violent felony or a serious drug offense . . .
committed on occasions different from one another” shall be imprisoned for a
minimum of fifteen years. § 924(e)(1). At the sentencing hearing, Massey did
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                                       No. 16-10438
not dispute that his two drug convictions were “serious drug offenses” under
the ACCA, but he objected to counting his Texas felony conviction as a “violent
felony.” He therefore argued that the normal ten-year maximum sentence for
a violation of § 922(g)(1) applied to his conviction. See § 924(a)(2).
       Massey’s felony conviction was for violation of section 38.14 of the Texas
Penal Code, which, in pertinent part, provides:
       A person commits an offense if the person intentionally or
       knowingly and with force takes or attempts to take from a peace
       officer, federal special investigator, employee or official of a
       correctional facility, parole officer, community supervision and
       corrections department officer, or commissioned security officer
       the officer’s, investigator’s, employee’s, or official’s firearm,
       nightstick, stun gun, or personal protection chemical dispensing
       device with the intention of harming the officer, investigator,
       employee, or official or a third person.
Under the ACCA, “violent felony” is defined in relevant part as “any crime
punishable by imprisonment for a term exceeding one year” that “has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i). The district court concluded that section
38.14 contained such an element, and accordingly sentenced Massey under the
ACCA to a prison term of fifteen years and eight months. Massey appealed.
       In Johnson v. United States, 559 U.S. 133, 140 (2014), the Supreme
Court held that “physical force” in the statutory definition of “violent felony”
means “violent force—that is, force capable of causing physical pain or injury
to another person.” On appeal, Massey argues that a violation of section 38.14
of the Texas Penal Code is not a “violent felony” under the ACCA because, he
asserts, under Texas law the “force” required for its commission is less than
that required by Johnson. 1 We review the district court’s determination that



       1The Government contends that our decision in United States v. Avalos-Martinez, 700
F.3d 148 (5th Cir. 2012), is dispositive. In that case, the defendant argued that section 38.14
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                                      No. 16-10438
a prior offense constitutes a violent felony under the ACCA de novo. United
States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). 2
       In support of his position, Massey points to Dobbs v. State, 434 S.W.3d
166 (Tex. Crim. App. 2014), in which the Texas Court of Criminal Appeals
(TCCA) held that the defendant, who threatened to shoot himself as officers
approached him, could not reasonably be said to have used “force against a
peace officer or another” within the meaning of the resisting arrest statute,
section 38.03 of the Texas Penal Code. In so holding, the TCCA considered a
dictionary definition of “force”: “‘violence, compulsion, or constraint exerted
upon or against a person or thing.’” Id. at 171 (quoting MERRIAM–WEBSTER’S
COLLEGIATE DICTIONARY 455 (10th ed. 1996)); see also Finley v. State, 484
S.W.3d 926, 927–28 (Tex. Crim. App. 2016) (citing and applying the Dobbs
definition of “force” to affirm a defendant’s conviction of resisting arrest under
section 38.03). Relying on this definition, Massey argues that “‘[f]orce’ under
the Texas Penal Code encompasses any amount of force . . . not just force
capable of causing physical pain or injury.”
       Massey’s argument is not persuasive for several reasons. First, the
TCCA’s decisions in Dobbs and in Finley did not definitively calibrate the



is not a “crime of violence” for purposes of enhancement of sentence under section
2L1.2(b)(1)(A)(ii) of the sentencing guidelines because the element of force in the Texas
statute encompasses not only force directed against a person, but also force directed against
property. Id. at 151. We rejected this argument, holding that section 38.14 does not
criminalize the use of force against property. Id. at 152. However, Massey’s argument that
a defendant may attempt to take an officer’s weapon under the Texas Penal Code without
using “physical force” as defined by Johnson was not presented or resolved by Avalos-
Martinez. Massey’s argument thus is not foreclosed by Avalos-Martinez.
        2 The Government argues that review should be for plain error because Massey’s

argument on appeal differs from the argument he raised below. However, we find that
Massey’s argument on appeal is a refinement of his district court argument rather than a
new argument. Consequently, Massey has preserved the argument for appeal, and our
review is de novo. See, e.g., United States v. Garcia-Perez, 779 F.3d 278, 281–82 (5th Cir.
2015) (de novo review applied because defendant merely refined on appeal his argument that
prior conviction did not qualify as crime of violence).
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                                     No. 16-10438
amount of force required for a violation of resisting arrest under section 38.03. 3
The decisions in Dobbs and Finley turned on whether the defendant’s actions
were “against” a police officer, rather than on whether his actions were
sufficiently forceful.    434 S.W.3d at 173; 484 S.W.3d at 928. It is not clear
from either decision that “force” defined as “violence, compulsion, or constraint
exerted upon or against a person or thing” is less than physical force as defined
by Johnson. And, significantly, there is no indication in either decision that
the definition of force was intended to apply outside of section 38.03.
      Furthermore, even if, as Massey argues, section 38.14 could be violated
with the use of less than “physical force,” that would not rule out the possibility
that the offense “has as an element the . . . threatened use of physical force
against the person of another.” See § 924(e)(2)(B)(i) (emphasis added). The
Government argues that it does. In United States v. Garcia-Figueroa, 753 F.3d
179, 186 (5th Cir. 2014), we held that the Florida offense of “without
authorization, tak[ing] a firearm from a law enforcement officer lawfully
engaged in law enforcement duties”—even if it does not necessarily involve the
use of “physical force”—“create[s] a sufficient ‘threatened use of [physical]
force’ to qualify” as a crime that has as an element the use, attempted use, or
threatened use of physical force” against the person of another.                     The
Government asserts that the same logic should apply in the present case.
Massey does not respond to the Government’s contention and fails to argue
that section 38.14 is distinguishable from the Florida statute at issue in
Garcia-Figueroa. We therefore conclude that section 38.14 has as an element
the “threatened use of force” and qualifies as a violent felony under the ACCA. 4



      3 The TCCA did suggest that section 38.03 requires only “some kind of force,” Dobbs,
434 S.W.3d at 171, or “some sort of force,” Finley, 484 S.W.3d at 928.
      4 However, as we noted in Avalos-Martinez, “our interpretation of this Texas statute

would be trumped by a contrary interpretation by Texas courts.” 700 F.3d at 152.
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                          No. 16-10438
  The district court’s judgment is AFFIRMED.




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