     Case: 15-10892      Document: 00513913135         Page: 1    Date Filed: 03/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 15-10892                               FILED
                                  Summary Calendar                       March 15, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

TEVIN RASHAD WRIGHT,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-116-1


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       The Supreme Court granted Tevin Wright’s petition for certiorari,
vacated this Court’s judgment in United States v. Wright, 642 F. App’x 486 (5th
Cir. 2016), and remanded to this Court for our further consideration in the
light of Mathis v. United States, 136 S. Ct. 2243 (2016). Wright v. United


       * 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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10892
States, 137 S. Ct. 192 (2016).        We now VACATE Wright’s sentence and
REMAND for resentencing.
                                          I.
      Under a plea agreement in which he waived his right to appeal, Wright
pleaded guilty to violating 18 U.S.C. §§ 922(g)(1) and 924(a)(2) by possessing a
firearm as a convicted felon. When the district court calculated his Guideline
offense level under U.S.S.G. § 2K2.1, it increased his base offense level from
twenty to twenty-two because, the court concluded, Wright’s Texas conviction
for “delivery” of a controlled substance was a “controlled substance offense”
within the meaning of U.S.S.G. § 4B1.2. The court then calculated Wright’s
Guidelines range as 100–120 months 1 of imprisonment and sentenced him to
96 months in prison.
      Wright appealed to us, notwithstanding his waiver of his right to appeal.
He contended that the factual basis for his guilty plea was legally insufficient
because it did not establish that he knew that the firearm in question had
traveled in interstate commerce. Wright, 642 F. App’x at 486. Wright conceded
that this issue was foreclosed by binding precedent, and, on plain error review,
this Court affirmed the district court’s judgment. Id.
      Two months later, the Supreme Court issued Mathis v. United States. In
Mathis, the Court held that, when determining whether an offense qualifies as
an Armed Career Criminal Act predicate, a sentencing court may subdivide a
defendant’s prior statute of conviction, and thus apply the modified categorical
approach, only if that statute contains multiple “elements” constituting
separate crimes—not simply multiple “means” of committing the same offense.
Mathis, 136 S. Ct. at 2251–56.



      1 Wright’s Guidelines range would have been 84–105 months of imprisonment without
the two-level base offense level increase.
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                                 No. 15-10892
      Wright subsequently filed a petition for writ of certiorari with the
Supreme Court, challenging our dismissal of his claims. Wright argued to the
Supreme Court that the district court had erred by applying the modified
categorical approach in classifying his prior drug offense as a “controlled
substance offense” because the statute under which he was convicted does not
set forth alternative elements for committing the statutory offense of
conviction and thus is not divisible into separate offenses.      Moreover, he
asserted, because this Court has held that an offer to sell a controlled
substance is not a “controlled substance offense” within the meaning of the
Guidelines, United States v. Price, 516 F.3d 285, 288–89 (5th Cir. 2008), the
indivisibility of the statute demonstrated his entitlement to relief. Wright also
noted to the Supreme Court that he had waived any appeal from his guilty plea
and that he was raising these arguments for the first time before the Supreme
Court.
      In response, the Government conceded to the Supreme Court that “the
appropriate disposition is to grant certiorari, vacate the judgment of the court
of appeals, and remand the case for further consideration in the light of
Mathis.” It is important that the Government never raised the matter that
Wright had waived appeal.
      While Wright’s certiorari petition was pending before the Supreme
Court, we held in United States v. Hinkle, 832 F.3d 569, 570 (5th Cir. 2016),
that, in the light of Mathis, a defendant’s Texas “conviction for delivery of a
controlled substance is not a ‘controlled substance offense’ within the meaning
of the Guidelines.” It was shortly thereafter that the Supreme Court granted
Wright’s petition, vacated our judgment, and remanded the case to this Court
for further consideration in the light of Mathis. Wright, 137 S. Ct. at 192.
      Wright now asks this Court to vacate his sentence and remand for
resentencing, arguing that: (1) the waiver in his plea agreement is not
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                                 No. 15-10892
enforceable as to his Mathis-based argument; (2) his failure to raise the issue
until the petition for certiorari is not an insurmountable barrier to relief; and
(3) his sentence is reversible on plain error review.
                                       II.
                                       A.
      We first consider whether the appellate-rights waiver in Wright’s plea
agreement is enforceable as to his Mathis-based claim. Wright contends that
his waiver is unenforceable because a defendant can only waive “known” rights
and he could not have intentionally relinquished a claim based on Mathis and
Hinkle because those cases were decided after he was sentenced. Moreover,
Wright argues, this Court should not find waiver here because the Government
did not raise his waiver in its response to his petition for certiorari, did not
seek to enforce it, and affirmatively conceded that this Court’s judgment should
be vacated and that his case should be remanded.
      The Government counters that Wright’s argument is precluded by the
mere existence of the waiver.
      We hold that Wright has not waived his Mathis-based argument and,
even if he had, the Government has waived the right to assert waiver. “Waiver
occurs when a party intentionally abandons a right that is known.” United
States v. Troxler, 390 F. App’x 363, 367 (5th Cir. 2010) (citing United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006)). Where, as here, a right is
established by precedent that does not exist at the time of purported waiver, a
party cannot intentionally relinquish that right because it is unknown at that
time. Id.; see also, e.g., Smith v. Blackburn, 632 F.2d 1194, 1195 (5th Cir.
1980). Additionally, the Government has waived the right to assert waiver by
failing to object to Wright’s appeal based on the waiver clause in his plea
agreement. E.g., United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).


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                                   No. 15-10892
                                         B.
      Wright also argues that his failure to raise the Mathis-based issue until
his petition for certiorari is not an insurmountable barrier to relief. Although
he admits that we have long required “extraordinary circumstances” to
consider arguments raised for the first time in a petition for certiorari, Wright
argues that we need not find extraordinary circumstances to vacate his
sentence because his claim is based on precedent not available when he drafted
his initial brief. Alternatively, Wright contends, where, as here, an intervening
Supreme Court opinion clearly shows a serious error, the extraordinary
circumstances test is satisfied.
      The Government counters that Wright has not demonstrated, as he
must, extraordinary circumstances to justify this Court’s consideration of an
issue that was raised for the first time in his certiorari petition, especially
because his Mathis-based argument cannot survive plain error review given
that it is precluded by his appellate-rights waiver.
      The Government’s argument overlooks that it urged the Supreme Court
to remand this case to us for consideration on the merits, stating that it was
“appropriate” for us “to further consider[] [the case] in the light of Mathis.” We
hold the Government to this concession and therefore consider the merits of
Wright’s claim.
                                         C.
      The question now is whether Wright’s sentence is reversible on plain
error review. To establish reversible plain error, Wright must show: “(1) an
error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”     United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014)
(citations omitted).


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                                  No. 15-10892
      Wright contends that the district court committed reversible plain error
in classifying his Texas conviction for delivery of a controlled substance as a
“controlled substance offense” within the meaning of U.S.S.G. § 4B1.2. The
court erred, Wright argues, because the sentence enhancement under U.S.S.G.
§ 2K2.1(a) requires a “a felony conviction of . . . a controlled substance offense”
and, under Mathis, a Texas conviction for delivery of a controlled substance
does not constitute a conviction for a “controlled substance offense.”        Our
holding in Hinkle, Wright asserts, made this error plain.         Wright further
contends that the court’s error affected his substantial rights because it
significantly changed his Guidelines range—increasing his maximum sentence
of imprisonment by fifteen months and his minimum sentence by sixteen
months—and, he further argues, there is a reasonable probability that this
affected his sentence because the court imposed a sentence below the
Guidelines range.    Finally, Wright claims, this error merits discretionary
remand because it has a clear and substantial impact on his sentence; it
resulted from an unforeseen change in the law, not dereliction by the defense;
and there are mitigating circumstances in this case.
      We hold that Wright has satisfied the requirements for plain error
review. The error of law lies in classifying Wright’s conviction as a “controlled
substance offense” because, as we explained in Hinkle, in the wake of Mathis,
a conviction under the Texas statute in question “is not a controlled substance
offense under the Guidelines.” Hinkle, 832 F.3d at 574–77 (citations omitted).
Even though the error was not plain at the time the district court sentenced
Wright, it is classified as “plain” because Mathis and Hinkle were decided prior
to the conclusion of Wright’s direct appeal. See Henderson v. United States,
133 S. Ct. 1121, 1124–25 (2013). This error affected Wright’s substantial rights
because there is a reasonable probability that it impacted his sentence. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). Finally, this
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                                  No. 15-10892
sentencing error, if allowed to go uncorrected, “seriously affects the fairness,
integrity, or public reputation of judicial proceedings” because, as Wright
notes, it resulted from an unforeseen shift in the law, not defense counsel’s
error, and, in a substantial way, it “clearly affected [Wright]’s sentence.” See,
e.g., Price, 516 F.3d at 290 (citations omitted).
                                       III.
      For the foregoing reasons, we VACATE Wright’s sentence and REMAND
for resentencing.




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