       Case: 18-31069        Document: 00515314032         Page: 1     Date Filed: 02/18/2020




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

                                                                                       FILED
                                         No. 18-31069                           February 18, 2020
                                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                                              Clerk


                 Plaintiff – Appellee

v.

KEITH A. JAMES,

                 Defendant – Appellant



                      Appeal from the United States District Court
                         for the Eastern District of Louisiana


Before HAYNES and OLDHAM, Circuit Judges, and HANEN,* District Judge.
HAYNES, Circuit Judge:
         The disputed question in this case is whether the Louisiana offense of
armed robbery is a violent felony under the Armed Career Criminal Act
(“ACCA”). Under the ACCA, the ordinary statutory maximum sentence of ten
years of imprisonment morphs to a statutory minimum of fifteen years of
imprisonment. Compare 18 U.S.C. § 924(a)(2), with § 924(e)(1). We conclude
that Louisiana armed robbery qualifies as a violent felony and AFFIRM the
district court’s judgment.




*   District Judge of the Southern District of Texas, sitting by designation.
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                                    I.     Background
       Keith A. James pleaded guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). In addition to admitting that
he owned a firearm, James admitted that he had three prior convictions of
armed robbery and three prior convictions of purse snatching.
       In James’s presentence investigation report (“PSR”), the probation
officer recommended that James’s convictions for armed robbery, purse
snatching, 1 and second-degree battery be classified as violent felonies.
Because the PSR determined that James was a career offender, it calculated
James’s adjusted base offense level as 33 pursuant to § 4B1.4(b)(3)(B) of the
U.S. Sentencing Guidelines.              After applying a three-level reduction for
acceptance of responsibility, the PSR calculated his total offense level as 30.
Under the usual application of the Guidelines, his range would have been 151
to 188 months. If James was not an armed career criminal, his sentence would
have been capped at 120 months due to the statutory maximum. 2                          See
18 U.S.C. § 924(a)(2).      However, because of the ACCA mandatory minimum
sentence, James’s actual range was 180 to 188 months. James filed a written
objection to the PSR’s classification of armed robbery as a violent felony. The
court overruled his objection and sentenced James to 188 months’
imprisonment and five years of supervised release.




       1  We agree with the Government that any error in finding the purse-snatching
convictions to be violent felonies is harmless because there are three separate armed-robbery
convictions. In light of our holding that the armed-robbery convictions qualify, they are
sufficient in number to meet the ACCA’s threshold.
       2Moreover, if James had not qualified for the U.S. Sentencing Guidelines § 4B1.4
armed-career-criminal enhancement, his Guidelines range would likely have been below the
120-month cap.
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                          II.     Standard of Review
      We review preserved challenges to “legal conclusions underlying a
district court’s application of” the ACCA de novo. United States v. Fuller, 453
F.3d 274, 278 (5th Cir. 2006).
                                 III.   Discussion
      A. Existing Precedent
      The ACCA defines “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile delinquency
involving the use or carrying of a firearm, knife, or destructive device” that:
“has as an element the use, attempted use, or threatened use of physical force
against the person of another” (the “force clause”); “is burglary, arson, or
extortion, [or] involves use of explosives” (the “enumerated crimes”); or
“otherwise involves conduct that presents a serious potential risk of physical
injury to another” (the now-stricken “residual clause”).                18 U.S.C.
§ 924(e)(2)(B).
      In Louisiana, armed robbery is “the taking of anything of value belonging
to another from the person of another or that is in the immediate control of
another, by use of force or intimidation, while armed with a dangerous
weapon.” LA. REV. STAT. ANN. § 14:64(A). The elements of simple robbery are
the same, except that they lack the dangerous-weapon element. Id. § 14:65(A).
      In United States v. Brown, we held that the Louisiana crime of simple
robbery qualifies as a violent felony under the ACCA. 437 F.3d 450, 452 (5th
Cir. 2006). We rejected Brown’s argument that a simple robbery conviction
could be achieved “simply with intimidation and, therefore, without the use or
threatened use of force.” Id. We reasoned that Louisiana law (1) enumerated
simple robbery as a crime of violence and (2) defined a crime of violence as “an
offense that has, as an element, the use, attempted use, or threatened use of
physical force against the person or property of another.”          Id. (emphasis

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removed). Because Louisiana classified simple robbery as a crime of violence,
which “necessarily entails the use or threatened use of force,” simple robbery
was a violent felony under the ACCA. Brown, 437 F.3d at 452–53.
   B. Subsequent Ruling on the ACCA’s Residual Clause
      In Johnson v. United States (Johnson II), 135 S. Ct. 2551 (2015), the
Supreme Court struck down the ACCA’s residual clause, which defined
“violent felony” to include “any crime punishable by imprisonment for a term
exceeding one year . . . [that] involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B); Johnson II, 135 S.
Ct. at 2555–56. The residual clause was held void for vagueness because it
“produce[d] more unpredictability and arbitrariness than the Due Process
Clause tolerates.” Johnson II, 135 S. Ct. at 2558.
      Post-Johnson II, to qualify as a violent felony under the ACCA, an
offense must either satisfy the force clause or be one of the statutorily
enumerated offenses. See 18 U.S.C. § 924(e)(2)(B); see United States v. Burris,
920 F.3d 942, 945–46 (5th Cir. 2019) (holding that the Texas robbery statute,
which included “intentionally or knowingly threaten[ing] or plac[ing] another
in fear of imminent bodily injury or death,” was a violent felony under the
ACCA), petition for cert. filed, No. 19-6186 (U.S. Oct. 3, 2019); see also United
States v. Reyes-Contreras, 910 F.3d 169, 181–82 (5th Cir. 2018) (en banc)
(addressing definition of “physical force” under the Sentencing Guidelines).
Because the record in this case does not identify which of the statutory factors
supported the relevant convictions, we need not determine whether the statute
is divisible. Instead, we analyze whether the least-culpable conduct in the
statute would constitute a violent felony under the ACCA. See Moncrieffe v.
Holder, 569 U.S. 184, 190–91 (2013) (addressing use of the categorical
approach where the court must analyze the state court conviction by



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addressing the least-culpable conduct criminalized by the statute at issue; the
underlying facts do not come into play).
       James contends that the Brown panel must have relied on the residual
clause when it concluded that the use of force needed for robbery was the same
as the use of force contemplated in the ACCA. However, the Brown panel did
not cite or discuss the ACCA’s residual clause. See Brown, 437 F.3d at 451–
53. On its face, the Brown panel relied on and discussed only the ACCA’s force
clause, and it concluded that Louisiana simple robbery satisfied that clause, so
it was not overturned by Johnson II. 3 See id. We are thus bound by that
precedent to reject James’s argument under the rule of orderliness unless the
Supreme Court or our en banc court has changed the relevant law. Jacobs v.
Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (explaining rule
of orderliness).
    C. Analysis of the ACCA’s Force Clause
       James alternatively argues that subsequent case law calls Brown’s
holding into question because of precedent limiting the reach of the force
clause. In Johnson v. United States (Johnson I), the Supreme Court considered
whether the Florida felony offense of battery, defined as “actually and
intentionally touching” another person, had as an element the use of force. 559
U.S. 133, 135 (2010) (brackets omitted). The Florida Supreme Court had held
that “any intentional physical contact, no matter how slight”—including a tap
on the shoulder without consent—could support a battery conviction. Id. at
138 (internal quotation marks omitted). The Supreme Court reasoned that,
when defining what constitutes a violent felony, the phrase “physical force”



3 James points to footnote 2 of Brown, which discussed the definition of “intimidation” and
noted that “by referencing an ‘increased risk of danger to human life,’” Louisiana courts had
“show[n] that intimidation entails the threat of force.” 437 F.3d at 452 n.2. Even if Brown’s
second rationale was intertwined with the residual clause, its holding about the force clause
was not dependent on the residual clause.
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must mean “force capable of causing physical pain or injury to another person.”
Id. at 140. The Court also noted that, at common law, battery historically “was
a misdemeanor, not a felony.” Id. at 141. The Florida offense of battery thus
did not count as a violent felony for ACCA purposes. Id. at 139–140.
      Subsequently, in Stokeling v. United States, the Supreme Court held
that a Florida robbery offense satisfied the ACCA’s force clause when it
required force sufficient to “overcome a victim’s resistance.” 139 S. Ct. 544,
554–55 (2019). The Florida statute at issue defined robbery as “the taking of
money or other property . . . from the person or custody of another, . . . when in
the course of the taking there is the use of force, violence, assault, or putting
in fear,” and the Florida Supreme Court had explained that robbery required
“resistance by the victim that is overcome by the physical force of the offender.”
Id. at 549 (internal quotation marks omitted). The Court explained that the
ACCA should be understood to incorporate the common-law meanings of
“force” and “robbery” and held that the amount of force needed to “overcome
[the victim’s] resistance” would satisfy the force element. Id. at 550–52, 555.
      Here, the Louisiana Supreme Court has similarly stated that
      the crime of robbery contemplates that some energy or physical
      effort will be exerted in the “taking” element of the crime and that
      some additional “use of force” in overcoming the will or resistance
      of the victim is necessary to distinguish the crime of robbery from
      the less serious crime of theft.
State v. Leblanc, 506 So. 2d 1197, 1200 (La. 1987) (emphasis added). Likewise,
it explained that the robbery statute “provide[s] a more severe grade of theft
for those instances in which a thief uses force or intimidation to accomplish his
goals,” and thus “the legislature apparently sought to emphasize the increased
risk of danger to human life posed when a theft is carried out in face of the
victim’s opposition.” State v. Mason, 403 So. 2d 701, 704 (La. 1981).



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      James highlights Louisiana cases in which no direct threat of force was
involved and contends that the amount of force required in Louisiana is less
than that in Florida. See, e.g., State v. Jones, 767 So. 2d 808, 810–11 (La. Ct.
App. 2000); State v. Robinson, 713 So. 2d 828, 829, 832 (La. Ct. App. 1998).
These cases, however, do not demonstrate that Brown has been overruled by
subsequent precedent.
      Brown’s continued validity is demonstrated by our recent analysis of a
similar “robbery by intimidation” in the context of determining whether a
federal bank-robbery conviction qualified as a crime of violence for the
purposes of U.S. Sentencing Guidelines § 4B1.2. United States v. Brewer, 848
F.3d 711, 713, 715 (5th Cir. 2017). We reasoned that “intimidation in the bank-
robbery context is inherently tied to a threatened use of force.” Id. at 715. In
some circumstances, an “implicit threat to use force” can be a threat of physical
force even though “no express threat was made.” Id. at 715–16. For example,
if a bank robber demands that a teller give him money, the demand carries at
least “an implicit threat of direct physical force.” Id. at 716. The circumstances
in the Louisiana state cases of Jones and Robinson were ones where defendants
made demands of cashiers; the demands carried similar implied threats to
those recognized in Brewer. Compare Brewer, 848 F.3d at 715–16, with Jones,
767 So. 2d at 810–11, and Robinson, 713 So. 2d at 829. The intimidation tactics
used, though indirect, were threats of physical force. See generally Reyes-
Contreras, 910 F.3d at 182 (finding “no valid distinction between direct and
indirect force”).
      In sum, we conclude that subsequent precedent buttresses rather than
overrules Brown. Accordingly, Louisiana armed robbery is a violent felony
under the ACCA’s force clause. 4


4 James also argues that the district court erred in adding criminal history points to his
offense level calculation under the Sentencing Guidelines. Because the argument turns on
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                                 IV.     Conclusion
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




the same already-rejected analysis of wording, we reject this argument as well. See United
States v. Shepherd, 848 F.3d 425, 427 (5th Cir. 2017).
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