     Case: 18-11084   Document: 00515380547        Page: 1   Date Filed: 04/13/2020




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


                                    No. 18-11084                        FILED
                                                                    April 13, 2020
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

            Plaintiff - Appellee

v.

KEVIN RAY PRENTICE,

            Defendant – Appellant

**************************************
Consolidated with 18-11273

UNITED STATES OF AMERICA,

            Plaintiff - Appellant

v.

KEVIN RAY PRENTICE,

            Defendant - Appellee



                Appeals from the United States District Court
                     for the Northern District of Texas
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Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Kevin Ray Prentice and the government both assert error in Prentice’s
sentence for possession of a firearm as a felon, in violation of 18 U.S.C.
§ 922(g)(1). The government faults Prentice’s present term of imprisonment
as less than one-third of what the law requires because, the government
contends, Prentice has “three previous convictions . . . for a violent felony or a
serious drug offense” under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e) (2018). Prentice argues to the contrary and also contests, for the first
time on appeal, the constitutionality and reasonableness of one of the
conditions of his supervised release. We hold that, in the wake of Shular v.
United States, 140 S. Ct. 779 (2020), the ACCA applies, that Prentice’s prison
sentence must accordingly be enhanced, and that Prentice has not shown plain
error regarding his supervised release.       We VACATE and REMAND for
reinstatement of Prentice’s original sentence.
                                BACKGROUND
      At a gun show in June 2016, Fort Worth police officers noticed apparent
prison tattoos on Prentice’s forearms and observed him parting ways from his
girlfriend as she went to buy two firearms. Afterward, she reconvened with
Prentice and gave him a box with one of the purchases, a semi-automatic rifle.
Prentice was incredulous at how much his girlfriend had spent but proceeded
to purchase some ammunition and a light/laser himself. Prentice and his
girlfriend then left the gun show, and soon thereafter, the police pulled them
over in Prentice’s car. The officers discovered the rifle and arrested him for
possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Prentice
subsequently pled guilty without a plea agreement.




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      Previously, Prentice had been convicted of six crimes, including two
convictions for burglary of a habitation and one conviction for possession of a
controlled substance with intent to deliver.                 Based on these latter three
convictions, Prentice’s presentence report applied the ACCA, which states:
      In the case of a person who violates section 922(g) of this title and
      has three previous convictions . . . for a violent felony or a serious
      drug offense, or both, committed on occasions different from one
      another, such person shall be fined under this title and imprisoned
      not less than fifteen years . . . .
18 U.S.C. § 924(e)(1).
      Over Prentice’s objection that his burglary convictions were not “violent
felon[ies],” the court adopted the presentence report, noted a Sentencing
Guidelines range of 180 to 188 months’ imprisonment, and sentenced Prentice
to 188 months. The court also imposed four years of supervised release under
the standard conditions.            Among the standard conditions is a visitation
condition:
      The defendant shall permit a probation officer to visit him at any
      time at home or elsewhere and shall permit confiscation of any
      contraband observed in plain view by the U.S. Probation Officer.


      Prentice appealed. He argued that the district court erred in treating
his two Texas habitation-burglary offenses as “violent felon[ies]” and in
treating his Texas possession-with-intent offense as “a serious drug offense,”
although he acknowledged that Fifth Circuit precedent foreclosed the latter
challenge. 1 In light of United States v. Herrold (Herrold I), 883 F.3d 517 (5th
Cir. 2018) (en banc), this court agreed that a burglary offense under Texas law
was not a “violent felony” under the ACCA. United States v. Prentice, 721 F.



      1   Prentice did not object to the visitation condition at this time.

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App’x 393, 393–94 (5th Cir. 2018). Citing United States v. Vickers, 540 F.3d
356 (5th Cir. 2008), the panel deemed Prentice’s possession-with-intent offense
to be “a serious drug offense,” but because Prentice lacked three relevant
convictions, it remanded for resentencing. See id.
      On remand, Prentice’s new guideline range was 30 to 37 months’
imprisonment, but the district court imposed 55 months. The district court
also reimposed the standard conditions of supervised release both orally and
in its written judgment.         As Prentice concedes, he did not object to the
visitation condition at this point, but he timely appealed, contending that the
district court plainly erred in imposing the visitation condition.
      Subsequently, the government also appealed, noting a pending petition
for a writ of certiorari in Herrold I. 2         Since the filing of that appeal, the
Supreme Court has vacated Herrold I in United States v. Herrold, 139 S. Ct.
271 (2019), and on remand this court held that Texas habitation-burglary
convictions qualify as convictions for a “violent felony” under the ACCA.
United States v. Herrold (Herrold II), 941 F.3d 173, 182 (5th Cir. 2019). On
this ground, the government asserted in its initial appellate brief in this case
that Prentice has three convictions under the ACCA and should be resentenced
accordingly.
      In between the filing of the government’s and Prentice’s briefs, the
Supreme Court handed down another relevant decision. In Shular v. United
States, the Court interpreted “serious drug offense” under the ACCA, which
defines that term to mean:
      an offense under State law, involving manufacturing, distributing,
      or possessing with intent to manufacture or distribute, a controlled




      2   The government had objected at sentencing to non-application of the ACCA.

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       substance . . . for which a maximum term of imprisonment of ten
       years or more is prescribed by law.
18 U.S.C. § 924(e)(2)(A)(ii).
       Prentice now contends that Shular implicitly establishes that his
possession-with-intent offense under Texas law is not a “serious drug offense”
under the ACCA. On this alternative ground, he argues, his shortened prison
sentence should be affirmed. 3
                              STANDARD OF REVIEW
       This court reviews whether a prior conviction qualifies as an ACCA
predicate de novo. See United States v. Massey, 858 F.3d 380, 382 (5th Cir.
2017). We consider previously unraised challenges to conditions of supervised
release under plain-error review. United States v. Ellis, 720 F.3d 220, 225 (5th
Cir. 2013).
                                     DISCUSSION
       We consider first the implications of Herrold II and Shular, then
Prentice’s challenge to the condition of supervised release. The government’s
position prevails.
                                              I.
       Under Herrold II, it is settled that Prentice’s convictions for burglary of
a habitation under Texas law are “convictions . . . for a violent felony” under
the ACCA. 941 F.3d at 182. However, Prentice reiterates his contention that
his conviction for possession with intent to deliver under Texas law is not a
“conviction[] . . . for . . . a serious drug offense” under the ACCA, a result that




       3 Prentice has also moved to stay this court’s decision until the Supreme Court decides
whether to review Herrold II. In the circumstances of this case, a pending petition for a writ
of certiorari is not an adequate reason to delay deciding a legal question, considering that
otherwise, Prentice is subject to immediate, albeit erroneous, release from prison.

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would undercut the applicability of the ACCA enhancement and preserve his
current prison sentence.
       Prentice acknowledges that his argument would fail under Vickers,
which upheld an ACCA enhancement for a “serious drug offense” because,
under Texas law, “possess[ing] with intent to deliver a controlled substance”
includes possessing with intent to offer to sell a controlled substance. 540 F.3d
at 363–64 (quoting Tex. Health & Safety Code Ann. §§ 481.112, 481.002(8)
(2003)). Although the panel noted that an offer to sell could not be considered
“distribution” or “dispensing” under the Sentencing Guidelines, id. at 364
(citing United States v. Gonzales, 484 F.3d 712, 716 (5th Cir. 2007)), the panel
focused on the language of ACCA, which prescribes the enhancement for prior
convictions “involving” the distribution of controlled substances. Critically, the
panel interpreted “involving” to plainly mean “related to or connected with.”
Id. at 365 (quoting United States v. Winbush, 407 F.3d 707 (5th Cir. 2005). On
the ground that possessing a drug with intent to offer to sell is related to the
distribution of drugs, the Vickers court held that “possess[ing] with intent to
deliver a controlled substance” under Texas law is “an offense under State law,
involving . . . possessing with intent to . . . distribute, a controlled substance”
under the ACCA. Id. at 365–66.
       Vickers thus concluded that a Texas possession-with-intent conviction is
a “serious drug offense,” and if Vickers remains good law, Prentice was
convicted for a “serious drug offense.” 4 According to Prentice, though, Vickers
was overruled by the Supreme Court in Shular. We disagree. Shular altered
the rationale underlying Vickers, but not its result.




       4 The Texas statute considered in Vickers was also in force at the time of Prentice’s
conviction for possession with intent to deliver.

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      At issue in Shular was whether selling a controlled substance under
Florida law is “a serious drug offense” under the ACCA. See 140 S. Ct. at 784.
The Court had to determine whether the Florida offense was one “involving
manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance.” See id. The Shular Court seemed to define
“involving” in terms of the parties’ agreement that the word means “necessarily
requir[ing].” See id. at 785; see also id. at 784. Nevertheless, holding that the
ACCA refers, not to a generic offense, but to “the conduct of ‘manufacturing,
distributing, or possessing with intent to manufacture or distribute, a
controlled substance,’” id. at 787, the Shular court affirmed the defendant’s
enhancement. Id.
      Prentice’s argument that Shular overruled Vickers focuses on Shular’s
apparent definition of “involving” as “necessarily requiring.” That definition,
Prentice notes, is different from the definition in Vickers: “related to or
connected with.” Prentice reasons that, after Shular, only an offense that
necessarily requires “possessing with intent to . . . distribute” may be “a serious
drug offense” under the ACCA. Thus, Prentice reads Shular to establish that
the Texas possession-with-intent offense is not “a serious drug offense.”
      This is a misreading. We may assume that Shular defined “involving”
in the ACCA to mean “necessarily requiring.” Nevertheless, its central holding
was that this provision of ACCA is interpreted categorically not according to
the generic definition of specific crimes identified by Congress, 5 but according
to whether the elements of the state law offense involve the generic conduct
specified in the federal statute. Id. at 782 (“The ‘serious drug offense’ definition
requires only that the state offense involve the conduct specified in the federal



      5   Cf. Mathis v. United States, 136 S. Ct. 2243, 2247–49 (2016).

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statute; it does not require that the state offense match certain generic
offenses.”). The Court elaborates on this understanding by citing Kawashima
v. Holder, which held that an immigration provision depended on conduct
involving fraud or deceit even though a particular underlying offense did not
use those precise terms. Id. at 783–84, 786 (citing 565 U.S. 478, 483–85,
132 S. Ct. 1166, 1172–73 (2012)). Consequently, the proper question in this
case is whether Prentice’s state conviction involved conduct amounting to
distribution of illegal drugs.
       Prentice’s suggestion that a state offense necessarily requires intent to
“distribute” drugs only if one could not commit the offense without intent to
actually hand over drugs, in a sale or exchange, is incompatible with Shular.
Granted, a person who sells drugs might yet have no intention of actually
handing over the drugs. 6 Nevertheless, Shular implicitly includes “sell” in the
meaning of “distribute.” See 140 S. Ct. at 785. Thus, the Shular Court did not
interpret “distribute” as Prentice interprets it. Instead, the Shular Court
focuses on conduct involving “intent to . . . distribute” as necessarily
encompassing conduct that is a part of a process of distribution.
       Moreover, it follows that one cannot intend to offer to sell (one of the
actions defined within the Texas offense) without intending that offer to be
taken by the buyer to be part of a process that concludes with the buyer’s
actually receiving what is offered. The precise reasoning of Vickers, i.e., its
interpretation of “involving,” differs from that of Shular and seems at odds
with Shular’s focus on the underlying conduct charged in state offenses. But
there is no doubt that the ACCA sentence upheld in Vickers would also be
affirmed under Shular.


       6 In Vickers’s terms, this person might “not have any drugs to sell or even intend ever
to obtain the drugs he is purporting to sell,” 540 F.3d at 365.

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      In sum, contrary to Prentice’s approach, Shular broadens the
understanding of “a serious drug offense” by focusing on the underlying
conduct. Shular dictates that the Texas offense of possessing with intent to
deliver is conduct involving “distribution” of controlled substances under the
ACCA, 18 U.S.C. § 924(e)(2)(A)(ii). Prentice’s conviction for that “serious drug
offense,” plus his two convictions for the “violent felony” of burglary of a
habitation, trigger the ACCA, id. § 924(e)(1), as the district court presciently
decided. Ultimately, because the sentence became erroneously controlled by
the now vacated Herrold I, the court did not apply the ACCA, and the case
must be remanded to restore the original sentence.
                                          II.
      According to Prentice, the court erred also by imposing the visitation
condition. For the first time on appeal, he asserts that the visitation condition
violates the Fourth Amendment, is not reasonably related to statutorily
enumerated sentencing factors, and involves greater deprivation of liberty
than is reasonably necessary to serve the purposes of supervised release. He
also claims the district court erred in failing to give reasons for imposing the
visitation condition.
      Because Prentice did not object to the visitation condition in the district
court, we review for plain error. United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007). To establish plain error, Prentice must demonstrate (1) an
unwaived “error or defect” that (2) is “clear or obvious” and (3) affected his
“substantial rights.” Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct.
1423, 1429 (2009). If Prentice satisfies these three criteria, the panel may
“remedy the error . . . only if the error “‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.’” Id. (quoting United States v.
Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779 (1993)). “Meeting all four


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prongs is difficult, ‘as it should be.’” Id. (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83 n.9, 124 S. Ct. 2333, 2340 n.9 (2004)).
      During the pendency of this appeal, after both briefs on this issue were
filed, another panel of this court published an opinion affirming imposition of
the visitation condition. United States v. Cabello, 916 F.3d 543, 544 (5th Cir.
2019) (per curiam). Reasoning that the Fifth Circuit has not addressed the
visitation condition’s constitutionality or statutory reasonableness or whether
a district court must give reasons for imposing it, the Cabello court found no
plain error and rejected challenges identical to Prentice’s. Id. Cabello has
already been cited repeatedly for its holding that defendant-appellants cannot
show plain error. See, e.g., United States v. Kwan, 772 F. App’x 148, 149 (5th
Cir. 2019); United States v. Dominguez-Villalobos,774 F. App’x 226, 227 (5th
Cir. 2019); United States v. Ortiz-Najera, 772 F. App’x 207, 208 (5th Cir. 2019).
      This panel does the same. Following Cabello, Prentice cannot satisfy the
second prong of plain error because any error was not “clear or obvious” and
was instead “subject to reasonable dispute.” See Puckett, 556 U.S. at 135. In
imposing the visitation condition, the district court did not reversibly err.
                                CONCLUSION
      The Appellee’s motion for stay is DENIED. The sentence of the district
court is VACATED, and we REMAND for reinstatement of Prentice’s original
sentence.




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