     Case: 17-10616      Document: 00515511629         Page: 1    Date Filed: 07/31/2020




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

                                                                              FILED
                                      No. 17-10616                         July 31, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ARTAVIUS DONTRELL SMITH,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-227-1


Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 2016, Appellant Artavius Dontrell Smith pleaded guilty to three
federal offenses: possession of a firearm after felony conviction, possession of
ammunition after felony conviction, and possession with intent to distribute
cocaine. Applying an Armed Career Criminal Act (“ACCA”) sentencing
enhancement,       the   district    court    sentenced     Smith     to    188        months’




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 17-10616       Document: 00515511629         Page: 2    Date Filed: 07/31/2020



                                       No. 17-10616
imprisonment. 1 Smith challenges his sentence on appeal, arguing that none of
his prior convictions qualifies as an ACCA predicate.
       The ACCA “imposes a fifteen-year minimum sentence on a defendant
who is convicted of being a felon in possession of a firearm and has three
previous convictions for ‘violent felonies’ or ‘serious drug offenses.’” 2 Smith’s
ACCA enhancement was based on a series of four offenses he committed in
2008 and 2009 when he was seventeen years old: 3

     Date of         Date of Arrest                Offense                  Statute of
  Commission                                                               Conviction
   09/30/2008           09/30/2008               Burglary of a           Tex. Penal Code
                                                  Habitation                  § 30.02
   09/30/2008           09/30/2008               Burglary of a           Tex. Penal Code
                                                  Habitation                  § 30.02
   02/26/2009           04/11/2009               Burglary of a           Tex. Penal Code
                                                  Habitation                  § 30.02
   04/09/2009           04/11/2009         Aggravated Robbery            Tex. Penal Code
                                                                              § 29.03

       Before the district court and again on appeal, Smith argues that none of
his prior convictions is a “violent felony” within the meaning of the ACCA. In
addition, he contends the Government cannot prove that his two September
30, 2008 burglaries were committed on separate occasions, as required by the
statute. 4


       1 See 18 U.S.C. § 924(e).
       2 United States v. Griffin, 946 F.3d 759, 760 (5th Cir. 2020) (per curiam) (internal
alterations omitted) (quoting 18 U.S.C. § 924(e)(1)).
       3 Although the ACCA requires only three qualifying convictions, the district court did

not specify which of Smith’s four prior offenses it was using to support the ACCA
enhancement. 18 U.S.C. § 924(e)(1).
       4 See id. (providing that qualifying offenses must have been “committed on occasions

different from one another”).
                                             2
     Case: 17-10616        Document: 00515511629           Page: 3     Date Filed: 07/31/2020



                                         No. 17-10616
       Smith’s arguments are foreclosed by this Court’s binding precedent.
First, our recent decision in Herrold II established that Texas’ burglary statute
is generic, and therefore all Texas burglary convictions are categorically
violent felonies for purposes of the ACCA. 5 Thus, even assuming arguendo that
the two September 30, 2008 burglaries were not committed on separate
occasions, Smith has at least two burglary convictions that count as ACCA
predicates: one of the 2008 burglaries, and the burglary committed on
February 26, 2009.
       Next, as Smith concedes, this Court has repeatedly held, both before and
after Herrold II, that Texas aggravated robbery is a violent felony under the
ACCA. 6 Smith contends that “the Supreme Court recently granted certiorari
in a case that could overturn” that holding. 7 However, the Supreme Court
subsequently dismissed the certiorari petition in that case 8 and, regardless, we
remain bound by our precedent until the Supreme Court says otherwise. 9

       5 United States v. Herrold (Herrold II), 941 F.3d 173, 182 (5th Cir. 2019) (en banc); see
TEX. PENAL CODE § 30.02(a). Smith tries to chip a hole in the barrier erected by Herrold II,
arguing that the case did not foreclose the possibility that Texas burglary may be nongeneric,
but rather left the door open to defendants who can support their claim with applicable Texas
case law. Not only did the Court reject this “very same argument” when Herrold made it, but
we have rejected it after Herrold II as well. United States v. Wallace, 964 F.3d 386, 388 (5th
Cir. 2020); see id. at 389 (rejecting the “assertion that our holding in Herrold II is confined to
Herrold’s failure to provide supportive Texas cases”). It is now settled that all “challenges to
the Texas burglary statute as being nongeneric for purposes of the ACCA enhancement are
foreclosed.” United States v. Walton, 804 F. App’x 281, 282 (5th Cir. 2020) (unpublished) (per
curiam).
       6 See United States v. Burris, 920 F.3d 942, 956 (5th Cir. 2019); United States v.

Mitchell, 776 F. App’x 227, 228 (5th Cir. 2019) (unpublished) (per curiam); United States v.
Lewis, 782 F. App’x 358, 359 (5th Cir. 2019) (unpublished) (per curiam); United States v.
Lerma, 877 F.3d 628, 629 (5th Cir. 2017).
       7 See Walker v. United States, 769 F. App’x 195 (6th Cir.), cert. granted, 140 S. Ct. 519

(2019), cert. dismissed, 140 S. Ct. 953 (2020).
       8 140 S. Ct. 953.
       9 See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008) (“Absent

an intervening Supreme Court case overruling prior precedent, we remain bound to follow
our precedent even when the Supreme Court grants certiorari on an issue.”); see also United
States v. Stewart, 732 F. App’x 314, 316 (5th Cir. 2018) (unpublished) (per curiam) (“[W]e
have traditionally held that even when the Supreme Court has granted certiorari in a
relevant case, we will continue to follow binding precedent.”).
                                                3
    Case: 17-10616      Document: 00515511629        Page: 4    Date Filed: 07/31/2020



                                     No. 17-10616
Counting the aggravated robbery conviction in addition to the burglaries,
Smith has at least three, if not four, qualifying convictions.
      For the foregoing reasons, we conclude that the district court properly
enhanced Smith’s sentence under the ACCA. Smith’s conviction and sentence
are therefore affirmed. 10




      10To the extent Smith’s April 2018 motion for summary reversal or for extension of
time remains pending, it is denied.
                                           4
