     Case: 14-11317   Document: 00513379239       Page: 1   Date Filed: 02/12/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 14-11317
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
UNITED STATES OF AMERICA,                                     February 12, 2016
                                                                Lyle W. Cayce
             Plaintiff–Appellee,                                     Clerk

v.

MICHAEL HERROLD

             Defendant - Appellant



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


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      On November 5, 2012, Dallas law enforcement pulled over Michael
Herrold as part of a routine traffic stop. During the encounter, the officers
observed a handgun in plain view. Because he was a convicted felon, Herrold’s
possession of the firearm was illegal under 18 U.S.C. § 922(g)(1), a charge to
which he subsequently pled guilty without a plea agreement. Under the
enhanced penalty provisions of the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), Herrold faced a statutory minimum of fifteen years
imprisonment.
      Herrold’s previous felony offenses included: (1) possession of lysergic acid
diethylamide (“LSD”) with intent to deliver, (2) burglary of a building, and (3)
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                                       No. 14-11317

burglary of a habitation. In the court below, Herrold argued that none of his
prior convictions qualify as predicate offenses under the ACCA. The district
judge disagreed, and sentenced Herrold to 211 months in prison. Without the
enhancement, Herrold would have faced a maximum penalty of ten years. 1 He
timely appealed his sentence.
       This Court reviews the application of an ACCA sentencing enhancement
de novo. 2 Because we hold that each of Herrold’s prior offenses qualify as
predicate offenses under ACCA, we affirm.
                                              I.
       First, Herrold argues that his conviction for burglary of a building 3
should not qualify as generic burglary, one of the enumerated predicate offenses
in ACCA. 4 But his argument is foreclosed by our holding in Conde-Castenada,
in which we held that burglary of a building under Texas Penal Code
§ 30.02(a)(1) qualifies as generic burglary. 5 “It is a firm rule of this circuit that
in the absence of an intervening contrary or superseding decision by this court
sitting en banc or by the United States Supreme Court, a panel cannot overrule
a prior panel’s decision.” 6 Herrold has cited no intervening authority under




       1  18 U.S.C. § 924 (a)(2).
       2  United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008); see also United States
v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006); United States v. Munoz, 150 F.3d 401, 419 (5th
Cir. 1998).
        3 In 1992, he confessed to “knowingly and intentionally enter[ing] a building. . . with

intent to commit theft” under Texas Penal Code § 30.02(a)(1). R. 263. The statute reads: “(a)
A person commits an offense if, without the effective consent of the owner, the person: (1)
enters a habitation, or a building (or any portion of a building) not then open to the public,
with intent to commit a felony, theft, or an assault[…]”
        4 See 18 U.S.C. 924 § (e)(2)(B)(ii).
        5 United States v. Conde-Castaneda, 753 F.3d 172, 174 (5th Cir. 2014); see also United

States v. Fearance, 582 F. App’x 416, 416-17 (5th Cir. 2014) (applying this holding to an ACCA
case), cert. denied 135 S.Ct. 311 (2015).
        6 See United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th Cir. 2002) (quoting Burge

v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)).


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which to reconsider Conde-Castenada. His conviction for burglary of a building
qualifies as a predicate offense for ACCA sentence enhancement.
                                            II.
       Herrold next argues that his conviction for burglary of a habitation
cannot qualify as a predicate offense under ACCA because Texas law defines
“habitation” to include “vehicles adapted for overnight use.” 7 This definition,
Herrold claims, covers offenses outside the scope of generic burglary, defined by
the Supreme Court in Taylor v. United States as “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit
a crime.” 8 Herrold further contends that this Court’s decision in United States
v. Silva 9 does not foreclose his argument. We disagree.
       In Silva, this Court affirmed the defendant’s enhanced sentence under
ACCA based on three prior convictions under Texas Penal Code § 30.02, two for
burglary of a habitation and one for burglary of a building. 10 We concluded that
burglary as defined by § 30.02 is generic burglary, explaining that
       [t]he Supreme Court in Taylor stated that “if the defendant was
       convicted of burglary in a State where the generic definition has
       been adopted, with minor variations in terminology, then the trial
       court need find only that the state statute corresponds to the
       generic meaning of burglary.” . . . Section 30.02 of the Texas Penal
       Code is a generic burglary statute, punishing nonconsensual entry
       into a building with intent to commit a crime. Under the reasoning
       of Taylor, Silva’s burglary convictions clearly indicate that he was
       found guilty of all the essential elements comprising generic

       7 Tex. Penal Code § 30.01(1). In determining that Herrold’s burglary of a habitation
conviction qualified for enhancement, the district court declined to specify whether it fell
within the ACCA as a generic burglary or as covered by the residual clause. After Johnson v.
United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual
clause is unconstitutionally vague, we can only affirm if Texas burglary of habitation is
generic burglary. Of course, we may affirm on any basis supported by the record. United
States v. McGee, 460 F.3d 667, 669 n.3 (5th Cir. 2006).
       8 495 U.S. 575, 598 (1990).
       9 957 F.2d 157 (1992).
       10 Id. at 161.




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       burglary. Accordingly, Silva’s three Texas burglary convictions
       were sufficient predicate convictions for enhancement of his
       sentence pursuant to 18 U.S.C. § 924(e). 11

       Our reasoning admittedly never explicitly stated which provision of
30.02 we were classifying as generic burglary. 12 Section 30.02(a) describes three
different courses of conduct:
       (a) A person commits an offense if, without the effective consent
       of the owner, the person:
              (1) enters a habitation, or a building (or any portion of a
       building) not then open to the public, with intent to commit a
       felony, theft, or an assault; or
              (2) remains concealed, with intent to commit a felony, theft,
       or an assault, in a building or habitation; or
              (3) enters a building or habitation and commits or attempts
       to commit a felony, theft, or an assault.

Under Taylor, generic burglary requires both entry and specific intent, which
are not present in subsections 2 and 3, respectively. 13 Subsection 1 is the only
provision that includes both. As we later clarified, Silva “could have only been
referring to § 30.02(a)(1)” in holding that Texas burglary qualifies as generic
burglary. 14 This Court has consistently affirmed this interpretation of Silva in
a series of unpublished opinions. 15

       11  Id. at 162 (emphasis added).
       12  Although Silva does not specify any subsection of § 30.02, the italicized language in
the excerpt above most closely tracks (a)(1), providing further support for the argument that
we addressed that provision.
        13 Taylor, 495 U.S. at 598; see also Constante, 544 F.3d at 586 (“Since § 30.02(a)(3)

does not include the element of specific intent, Silva cannot support the district court's
conclusion that a conviction under § 30.02(a)(3) is a violent felony for purposes of 18 U.S.C. §
924(e).”).
        14 Constante, 544 F.3d at 586.
        15 See, e.g., United States v. Wallace, 584 F. App’x 263, 264-65 (5th Cir. 2014), cert.

denied, 135 S. Ct. 1512 (2015) (“We have previously held that a conviction
under § 30.02(a)(1) qualifies as a generic burglary for purposes of the ACCA.”); United States
v. Hageon, 418 F. App’x 295, 298 (5th Cir. 2011) (“The Texas crime of burglary as defined
in § 30.02(a)(1) therefore qualifies as a violent felony under the ACCA.”); United States v.
Cantu, 340 F. App’x 186, 190-91 (5th Cir. 2009) (“[T]he Government has shown that Cantu’s


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       Herrold maintains that the court in Silva never considered the argument
that Texas’s definition of habitation – by including vehicles adapted for the
overnight accommodation of persons – broadens the statute beyond generic
burglary. He reasons that we are not “bound to follow our dicta in a prior case
in which the point now at issue was not fully debated.” 16 But the holding in
Silva, however imprecisely phrased, is not dictum. Our affirmance of Silva’s
sentence necessarily required the determination that Texas burglary of a
habitation qualified as generic burglary for purposes of ACCA. Without those
two convictions, he would have had only a single qualifying previous offense.
That the court in Silva did not consider the argument that Herrold now
advances does not make the holding any less binding. 17 Silva therefore
forecloses Herrold’s argument that his conviction for burglary of a habitation
does not qualify as a predicate offense under ACCA.
                                             III.
       Finally, Herrold argues that his conviction for possession of LSD with
intent to deliver is not “a serious drug offense” under ACCA. We disagree.
       The ACCA definition of a “serious drug offense” includes “an offense
under State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is prescribed by law.” 18
In 1992, Herrold pled guilty to “unlawful possession with intent to deliver a


burglary . . . violated Texas Penal Code § 30.02(a)(1) and was therefore a violent felony.”).
       16 Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (citing Cohens v. Virginia, 19

U.S. (6 Wheat.) 264, 399-400 (1821) (Marshall, C.J.)).
       17 See Sykes v. Tex. Air Corp., 834 F.2d 488, 492 (5th Cir. 1987) (“The fact that in [the

prior decision] no litigant made and no judge considered the fancy argument advanced in this
case does not authorize us to disregard our Court’s strong rule that we cannot overrule the
prior decision.”); see also Crowe v. Smith, 151 F.3d 217, 233 (5th Cir. 1998) (“Whatever we
might think of this reasoning as a de novo matter, we are of course bound by our prior circuit
precedent[…]”).
       18 18 U.S.C. § 924(e)(2)(A)(ii).




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controlled substance” under Texas Health & Safety Code § 481.112(a). Herrold
suggests that the least culpable conduct covered by the statute is the
possession of drugs with intent to offer them for sale without actually offering
them for sale; 19 he argues that such possession does not “involve” the
distribution of drugs, meaning that his conviction under § 481.112(a) is not a
“serious drug offense.”
       Herrold’s argument is unpersuasive. “The word ‘involving’ has expansive
connotations,” 20 and by using it, “Congress intended the category of convictions
considered a ‘serious drug offense’ to be expansive.” 21 For example, in United
States v. Vickers, we held that a conviction for “delivery of a controlled
substance” was a serious drug offense, 22 despite the fact that someone could
have been guilty by “solely. . . offering to sell a controlled substance” without
possessing any drugs. 23 We reasoned that “[b]eing in the drug marketplace as
a seller—even if, hypothetically, the individual did not possess any drugs at
that time” was the kind of criminal history that “Congress was reaching by the
ACCA.” 24
       Like Vickers, Herrold was in the drug market as a seller. The next step
in his conduct, one he intended to take, was the completion of a drug
transaction. The least culpable conduct covered by Herrold’s statute of
conviction is arguably closer to the distribution chain than Vickers’s because



       19  Because ACCA requires a “categorical approach” that evaluates the breadth of the
defendant’s statute of conviction rather than his conduct, see United States v. Allen, 282 F.3d
339, 342 (5th Cir. 2002), we look to the statute’s “least culpable means” of commission to see
if that conduct constitutes a “serious drug offense.” United States v. Houston, 364 F.3d 243,
246 (5th Cir. 2004).
        20 United States v. Winbush, 407 F.3d 703, 707 (5th Cir. 2005) (quoting United States

v. King, 325 F.3d 110, 113-14 (2d Cir. 2003)).
        21 United States v. Vickers, 540 F.3d 356, 365 (5th Cir. 2008).
        22 Id. at 363.
        23 Id. at 364.
        24 Id. at 365-66.




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Herrold necessarily possessed the drugs he intended to distribute. Even if he
never offered the drugs for sale, Herrold’s conduct “involve[d]. . . possessing
with intent to. . . distribute.” 25 His conviction is therefore a serious drug offense
under ACCA.
       AFFIRMED.




      25   18 U.S.C. § 924(e)(2)(A).


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