     Case: 15-10067        Document: 00513633546       Page: 1   Date Filed: 08/11/2016




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

                                        No. 15-10067                       FILED
                                                                     August 11, 2016
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

                Plaintiff–Appellee,

v.

WAYLAND DEMOND HINKLE,

                Defendant–Appellant.




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


Before PRADO, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Wayland Demond Hinkle appeals his sentence, contending that the
district court erred in determining that he was a career offender within the
meaning of § 4B1.1(a) of United States Sentencing Guidelines. 1 Hinkle argues
that neither of his prior Texas convictions, one for burglary and the other for
delivery of a controlled substance, constitutes a predicate offense under the
career-offender guidelines provision. Our decision turns upon whether the
particular Texas statutes at issue are divisible such that a court may use the
modified categorical approach to determine whether a defendant convicted


      1   U.S.S.G. § 4B1.1(a) (2013).
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                                        No. 15-10067
under Texas law of knowingly delivering a controlled substance was convicted
of delivery by one of the particular means proscribed under Texas law. In light
of the Supreme Court’s recent decision in Mathis v. United States, 2 we conclude
that Hinkle’s conviction for delivery of a controlled substance is not a
“controlled substance offense” within the meaning of the Guidelines, and
therefore, the career-offender enhancement did not apply based on the record
presently before us. We vacate Hinkle’s sentence and remand for resentencing.
                                               I
      During a sting operation, Hinkle sold 0.3 grams of crack cocaine to a
confidential informant working for the Fort Worth Police Department. Hinkle
pleaded guilty to possession with intent to distribute cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C).
      Hinkle was over 18 years of age when he committed this offense, and it
was a “controlled substance offense” within the meaning of § 4B1.1(a) of the
federal sentencing guidelines. His sentence was therefore subject to being
enhanced under the “Career Offender” Guidelines provision, § 4B1.1, if he had
“at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” 3 The Presentence Report (PSR) construed § 4B1.2, which
defines “controlled substance offense” 4 and “crime of violence,” 5 as including
Hinkle’s prior conviction for delivery of heroin and his prior conviction for


      2   136 S. Ct. 2243 (2016).
      3   U.S.S.G. § 4B1.1(a):
              A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant offense of
      conviction; (2) the instant offense of conviction is a felony that is either a crime
      of violence or a controlled substance offense; and (3) the defendant has at least
      two prior felony convictions of either a crime of violence or a controlled
      substance offense.
      4   Id. § 4B1.2(b).
      5   Id. § 4B1.2(a)(2).
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                                        No. 15-10067
burglary, an enumerated “crime of violence.” 6                     The PSR applied an
enhancement under § 4B1.1(b) and calculated an advisory sentencing range of
151 to 188 months of imprisonment.                       Without the career offender
enhancement, the advisory sentencing range would have been 33 to 41 months
of imprisonment.
       In a written objection, Hinkle challenged the PSR’s career-offender
determination, asserting that the Texas statute under which he was convicted
for delivery of heroin 7 does not qualify as a “controlled substance offense” under
the Guidelines because it criminalizes conduct that is not included within the
Guidelines’ definition of a “controlled substance offense.” He noted in his
objections, and this court has held, that a conviction can be obtained under this
Texas statute by proving only an offer to sell, and an offer to sell does not
constitute a “controlled substance offense” within the meaning of the
Guidelines. 8       Citing the Supreme Court’s decision in Descamps, 9 Hinkle
asserted that the court could not consider underlying documents in order to
determine whether Hinkle was convicted of offering to sell a controlled
substance or instead was convicted of a form of delivering a controlled
substance that would come within the Guidelines’ definition of a “controlled
substance conviction.”         The district court overruled Hinkle’s objection and
sentenced him to 188 months’ imprisonment. Hinkle has appealed.




       6Id. (“The term ‘crime of violence’ means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that . . . is burglary of a
dwelling. . . .”).
       7   TEX. HEALTH & SAFETY CODE § 481.112(a).
       8See, e.g., United States v. Price, 516 F.3d 285, 287 (5th Cir. 2008); United States v.
Gonzalez, 484 F.3d 712, 714-15 (5th Cir. 2005); United States v. Garza-Lopez, 410 F.3d 268,
274 (5th Cir. 2005).
       9   Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
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                                       No. 15-10067
                                             II
       Before Hinkle was convicted in federal court of the present offense, he
was convicted in a Texas state court of a drug-related offense. The Texas
statute of conviction, Texas Health & Safety Code section 481.112(a), provides
that a person commits an offense if he or she “knowingly manufactures,
delivers, or possesses with intent to deliver a controlled substance.” 10                   A
separate section, 481.002(8), defines “deliver” as
       to transfer, actually or constructively, to another a controlled
       substance, counterfeit substance, or drug paraphernalia,
       regardless of whether there is an agency relationship. The term
       includes offering to sell a controlled substance, counterfeit
       substance, or drug paraphernalia. 11
Section 4B1.2 of the Guidelines defines a controlled substance offense as
       an offense under federal or state law, punishable by imprisonment
       for a term exceeding one year, that prohibits the manufacture,
       import, export, distribution, or dispensing of a controlled
       substance (or a counterfeit substance) or the possession of a
       controlled substance (or a counterfeit substance) with intent to
       manufacture, import, export, distribute, or dispense. 12
       In determining whether a prior conviction is included within an offense
defined or enumerated in the Guidelines, we have generally looked only to the
elements of the prior offense, not to the actual conduct of the defendant in




       10 TEX. HEALTH & SAFETY CODE § 481.112(a). We held post-Descamps that
§ 481.112(a), which criminalizes the “discrete acts” of “manufacturing, delivering, and
possessing with intent to deliver,” is divisible and the parties do not contend otherwise. See
United States v. Teran-Salas, 767 F.3d 453, 459 (5th Cir. 2014).
       11   TEX. HEALTH & SAFETY CODE § 481.002(8).
       12   U.S.S.G. § 4B1.2(b).
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                                          No. 15-10067
committing the offense. 13 We employ the so-called “categorical” approach. 14
The Government concedes that if Hinkle were convicted of delivering a
controlled substance “by offering to sell” that substance, the crime would not
come within the definition of a “controlled substance offense” under § 4B1.2.
However, the Government contends that the Texas indictment pursuant to
which Hinkle was convicted did not charge Hinkle with offering to sell heroin
but instead charged that he “knowingly delivered” a controlled substance “by
actually transferring said controlled substance.”
       The question in this appeal is whether the Texas statutes under which
Hinkle was convicted are “divisible.” 15 A statute is “divisible” when it “sets out
one or more elements of the offense in the alternative—for example, stating
that burglary involves entry into a building or an automobile.” 16                     As the
Supreme Court explained in Descamps,
       [i]f one alternative (say, a building) matches an element in the
       generic offense, but the other (say, an automobile) does not, the
       modified categorical approach permits sentencing courts to consult
       a limited class of documents, such as indictments and jury
       instructions, to determine which alternative formed the basis of
       the defendant’s prior conviction. 17

       We must resolve whether the definition of “deliver” in section 481.002(8)
in conjunction with section 481.112(a) sets forth different offenses, such that



       13 See, e.g., United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014) (“This
court employs a categorical approach in determining whether an offense qualifies as a crime
of violence under § 2L1.2. ‘[W]e examine the elements of the offense, rather than the facts
underlying the conviction or the defendant’s actual conduct, to determine whether an offense
meets the definition of a [crime of violence].’” (quoting United States v. Ortiz-Gomez, 562 F.3d
683, 684 (5th Cir. 2009))).
       14   See id.
       15   See, e.g., Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
       16   Id. (emphasis in original).
       17   Id.
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                                       No. 15-10067
delivering a controlled substance by “offering to sell” it is a separate and
distinct offense from delivering a controlled substance by “transfer[ing],
actually . . . , to another a controlled substance.” 18 Hinkle contends that the
various definitions of “deliver” in section 481.002(8) of the Texas statute are
not elements of separate offenses but are various means of committing the
offense of “deliver[ing] . . . a controlled substance.” The Government contends
that the Texas indictment can be used to “narrow” the offense of which Hinkle
was convicted to the offense of “deliver[ing] . . . a controlled substance” by
“transfer[ing] [it] actually . . . to another.” Both rely on Descamps 19 in support
of their respective positions.
                                           III
      We first consider the Government’s contention that Hinkle’s objection in
the district court differs from the argument that he has pursued in our court
and therefore that the plain error standard of review applies. The Government
acknowledges that in the district court, Hinkle argued “that Descamps changed
this Court’s precedent and rendered delivery under section 481.112(a)
indivisible.” The Government contends that on appeal

      Hinkle does not now dispute that Shepherd documents can be used
      to specify whether he was convicted of manufacturing heroin,
      delivering heroin, or possessing heroin with intent to deliver it.
      But in his view that is all they can do. Once they establish that
      his conviction was predicated on delivering heroin, he argues that
      they cannot then be used to specify whether he “delivered” heroin
      by actually transferring it, constructively transferring it, or
      offering it for sale because those are “means” not “elements.”




      18   TEX. HEALTH & SAFETY CODE § 481.002(8).
      19   Descamps, 133 S.Ct. 2276.
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                                        No. 15-10067
We see little distinction between Hinkle’s contention in the district court that
Descamps “rendered delivery under section 481.112(a) indivisible” and the
Government’s characterization of Hinkle’s argument on appeal.
      In any event, Hinkle’s written objection in the district court made clear
his contention that “it is no longer sufficient for the government to show that
there are ‘multiple ways to violate’ a state statute” and that “[i]n order to
invoke the ‘modified categorical approach’ after Descamps, the government
needs to establish that the state statute has multiple sets of alternative
elements, set out in the disjunctive.” Hinkle contended in the district court
and maintains in this court that the definition of “delivery” sets forth varying
means of committing the crime of knowingly delivering a controlled substance
rather than setting forth elements of separate “delivery” offenses. He argues
that the offense of knowingly delivering a controlled substance is broader than
the Guidelines’ definition of a controlled substance offense because the Texas
offense criminalizes an offer to sell while the federal definition does not include
such an offense. Accordingly, we disagree with the Government that we should
review only for plain error. The arguments that Hinkle pursues in his appeal
were adequately set forth in the district court. “For properly preserved claims,
this court reviews the district court’s interpretation and application of the
Sentencing Guidelines de novo.” 20


                                              IV
      While this appeal was pending, the Supreme Court issued its opinion in
Mathis v. United States. 21 That opinion sets forth how a court determines
whether a statute is divisible and therefore whether, in employing the modified


      20   United States v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th Cir. 2014).
      21   136 S. Ct. 2243 (2016).
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                                       No. 15-10067
categorical approach, documents pertaining to the prior conviction may be used
to ascertain if that conviction comes within a federal definition of an offense or
has the elements of an enumerated offense. The decision in Mathis plainly and
unmistakably leads to the conclusion that the definition of “delivery” in section
481.002(8), as authoritatively interpreted by the Texas Court of Criminal
Appeals, 22 sets forth various means of committing an offense and does not set
forth in the disjunctive separate offenses.
       The Supreme Court’s decision in Mathis dealt with the Armed Career
Criminal Act (ACCA), 23 not the federal sentencing Guidelines. However, the
primary focus of the Court’s decision in Mathis was how to determine whether
a statute is “divisible” and therefore whether the modified categorical approach
can be used to determine, when a statute defines more than one offense, of
which offense a defendant was convicted. 24 The decision in Mathis clarified
when and how the modified categorical approach is applied in the context of
federal sentencing. With exceptions not relevant to this appeal, 25 we have
generally used the categorical and modified categorical approaches in applying




       22 See Lopez v. State, 108 S.W.3d 293, 299 (Tex. Crim. App. 2003) (citing Rodriguez v.
State, 89 S.W.3d 699, 701 (Tex. App.—Houston [1st Dist.] 2002, pet ref’d)).
       23    Mathis, 136 S. Ct. at 2247 (citing the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)).
       24    Id.
       25 See, e.g., United States v. Charles, 301 F.3d 309, 313–14 (5th Cir.2002) (en banc)
(holding that, in applying U.S.S.G. § 4B1.2, the court will consider the elements of the charges
against a defendant, even if they differ from the elements of the statute of conviction, because
the commentary to U.S.S.G. § 4B1.2 “states that [o]ther offenses are included as crimes of
violence if . . . the conduct set forth (i.e., expressly charged) in the count of which the
defendant was convicted . . . by its nature, presented a serious potential risk of physical
injury to another” (internal quotation marks omitted) (citing United States v. Fitzhugh, 954
F.2d 253 (5th Cir. 1992))); United States v. Pascacio-Rodriguez, 749 F.3d 353, 366-67 (5th
Cir. 2014).
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                                          No. 15-10067
the federal sentencing Guidelines. 26               The Mathis decision is controlling
regarding the methodology of the modified categorical approach, and we must
apply its holdings, even if they are contrary to prior precedent of this court.
Though our court had held, prior to Descamps and Mathis, that sentencing
courts could reference record documents to determine the method of delivery
under section 481.002(8) on which a defendant’s conviction was based, 27
Mathis makes clear that sentencing courts may no longer do so.
       The decision in Mathis instructs that there is a difference between
alternative elements of an offense and alternative means of satisfying a single
element. 28 Elements must be agreed upon by a jury. 29 When a jury is not
required to agree on the way that a particular requirement of an offense is met,
the way of satisfying that requirement is a means of committing an offense not
an element of the offense. 30 At issue in Mathis was an Iowa burglary statute
that proscribed entry into or onto locations that included a building, a
structure, land, water or an air vehicle. 31 Because generic burglary does not
proscribe burglary of vehicles, the Iowa offense was overly inclusive; it included
conduct that was not generic burglary. 32 The sentencing court looked to the
documents pertaining to Mathis’s prior convictions, which revealed that
Mathis had burgled structures not vehicles, and the district court concluded




        See, e.g., United States v. Najera–Mendoza, 683 F.3d 627, 629 (5th Cir. 2012) (citing
       26

United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012)).
       27   See United States v. Garcia-Arellano, 522 F.3d 477, 480-81 (5th Cir. 2008).
       28   Mathis, 136 S. Ct. at 2250.
       29   Id. at 2256.
       30   Id.
       31   Id. at 2250; see also IOWA CODE §§ 702.12, 713.1.
       32   Mathis, 136 S. Ct. at 2250.
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                                              No. 15-10067
that the sentencing enhancement under the ACCA applied. 33 The Eighth
Circuit affirmed, holding that whether the itemized list of places “amount[ed]
to alternative elements or merely alternative means to fulfilling an element,
the statute is divisible, and we must apply the modified categorical
approach.” 34 The Supreme Court disagreed and reversed the Eighth Circuit
because the Iowa Supreme Court has held that the Iowa statute sets forth
“alternative method[s] of committing [the] single crime,” and an Iowa “jury
need not agree on which of the locations was actually involved.” 35
          We are instructed by the Supreme Court’s decision in Mathis that our
first task in cases like the one presently before us is to determine whether
“listed items” in a statute “are elements or means.” 36 In Mathis, as in the
present case, “a state court decision definitively answers the question.” 37
Texas state courts construing sections 481.112(a) and 481.002(8) of the Texas
Health and Safety Code have held that the method used to deliver a controlled




          33   Id.
          34   United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015).
          35   Mathis, 136 S. Ct. at 2250 (quoting State v. Duncan, 312 N.W.2d 519, 523 (Iowa
1981)).
          36   Id. at 2256. The Court said:
                 The first task for a sentencing court faced with an alternatively phrased
          statute is thus to determine whether its listed items are elements or means. If
          they are elements, the court should do what we have previously approved:
          review the record materials to discover which of the enumerated alternatives
          played a part in the defendant’s prior conviction, and then compare that
          element (along with all others) to those of the generic crime. But if instead
          they are means, the court has no call to decide which of the statutory
          alternatives was at issue in the earlier prosecution. Given ACCA’s indifference
          to how a defendant actually committed a prior offense, the court may ask only
          whether the elements of the state crime and generic offense make the requisite
          match.
Id. (citations omitted).
          37   Id.
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                                          No. 15-10067
substance is not an element of the crime. In Lopez v. State, 38 the Texas Court
of Criminal Appeals cited approvingly a lower court opinion—Rodriguez v.
State—in which a “jury charge authorized conviction if the jurors found that
Rodriguez delivered marijuana by actually transferring, constructively
transferring, or offering to sell.” 39 The Rodriguez court found no error even
though there was the “potential for a non-unanimous verdict,” concluding that
only one offense was committed. 40 The Lopez court opined that “[t]he result
was a permissible general verdict because the defendant was charged with two
alternative theories of committing the same offense, and not two separate
deliveries.” 41      Texas law is therefore clear, as was the Iowa statute in
Mathis: section 481.002(8)’s listed methods of delivery “are not alternative
elements, going toward the creation of separate crimes. To the contrary, they
lay out alternative ways of satisfying [the] single [delivery] element.” 42 As the
Supreme Court held in Mathis, “[w]hen a ruling of that kind exists, a
sentencing judge need only follow what it says.” 43 We therefore need not utilize
the other means set forth in Mathis for discerning whether alternatives listed
in a statute are elements or means. 44
       The Government cites Texas state court decisions holding that
prosecutors must specify the precise method or methods of delivery under




       38   108 S.W.3d 293 (Tex. Crim. App. 2003).
       39 Id. at 299 (citing Rodriguez v. State, 89 S.W.3d 699, 700-01 (Tex. App.—Houston
[1st Dist.] 2002, pet ref’d)).
       40   Id. (citing Rodriguez, 89 S.W.3d at 701).
       41   Id.
       42   Mathis, 135 S. Ct. at 2250.
       43   Id. at 2256.
       44   See id. at 2256-57.
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                                          No. 15-10067
section 481.002(8) in a charging instrument, 45 and that when a single form of
delivery is alleged, that method of delivery, and no other, must then be proven
beyond a reasonable doubt. 46 The Government’s interpretation of these Texas
decisions confuses evidentiary and notice requirements with the elements of
an offense. One of these cases recognizes that Texas law permits a prosecutor
to charge more than one method of delivery but does not require proof beyond
a reasonable doubt as to each method of delivery charged when more than one
method is charged. 47             The decision in Stephens does not say or hold
otherwise. 48
                                               V
       The “delivery” element of Hinkle’s crime of conviction criminalizes a
“greater swath of conduct than the elements of the relevant [Guidelines]
offense.” 49 This “mismatch of elements” means that Hinkle’s conviction for the
knowing delivery of heroin is not a controlled substance offense under the
Guidelines. 50 That prior conviction cannot serve as a predicate offense under
the Career Offender Guideline provision, which is § 4B1.1.




       45   See Ferguson v. State, 622 S.W.2d 846, 850-51 (Tex. Crim. App. 1981).
       46See Conaway v. State, 738 S.W.2d 692, 694-95 (Tex. Crim. App. 1987); Stephens v.
State, 269 S.W.3d 178, 183 (Tex. App.—Texarkana 2008).
       47  See Conaway, 738 S.W.2d at 694 (“In this instance, the State chose to charge
appellant only with actual [sic] delivering the marihuana to Green, thus satisfying the
specificity requirement that Ferguson[, 622 S.W.2d at 850-51], which held that an indictment
which does not specify which kind of delivery was committed is subject to a motion to quash,
mandated. Thus, notwithstanding that the State could have alleged both actual and
constructive delivery, see Queen v. State, 662 S.W.2d 338, 341 (Tex. Crim. App. 1983), it chose
only to allege that the delivery occurred by ‘actual delivery.’ It was thus bound to prove its
allegation beyond a reasonable doubt.”).
       48   See Stephens, 269 S.W.3d 178.
       49   Mathis, 136 S. Ct. at 2251.
       50   Id.
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                           No. 15-10067
                          *     *        *
  We VACATE Hinkle’s sentence, and REMAND for resentencing.




                                13
