Federal Corner: The State of Borden in the Fifth Circuit

The state of common Texas offenses almost a year after Borden

Last year, federal criminal defendants won a big victory when the Supreme Court held in Borden v. United States, 141 S.Ct. 1817 (2021), that offenses bearing a mens rea of recklessness lack “the use, attempted use, or threatened use of physical force against the person of another” as an element. The controlling opinion in Borden focuses on the restrictive phrase “against the person of another,” which it holds to imply an “intentional targeting” of the victim, and to exclude accidents. Borden arose in the context  of the Armed Career Criminal Act’s (“ACCA”) definition of “violent felony,” but the language it construed (or very similar language) appears (and is cross‑ referenced) throughout the U.S. Code and Sentencing Guidelines. See 18 U.S.C. 16(a), 18 U.S.C. 924(c) (3)(A), 18 U.S.C. 924(e)(2)(B)(i), 18  U.S.C.  3156(a)(4),  18  U.S.C. 3559(c)(2)(F)(i); USSG 2L1.2, comment. (n. (1)(B))(2015), USSG 4B1.2(a)(1). Most importantly, the language appears in ACCA (which elevates the penalty for firearm possession from a 10‑year maximum to a 15‑year minimum), and in Guideline 4B1.2, which can render the defendant eligible for elevated penalties under the firearm Guideline (USSG 2K2.1) or for the cataclysmic penalties of the career offender Guideline (USSG 4B1.1).

Of course, Borden left circuit courts the task of applying its holding to offenses it did not address. Results in the Fifth Circuit have been mixed, and not everything has been settled. Nonetheless, we do know how some of the most common Texas offenses have fared after Borden. It’s worth remembering that while everything below describes current law, this area of law is notoriously prone to change. Zealous practitioners will no doubt find arguments worth preserving, or that have not yet been addressed, even when the law appears to qualify their clients for an enhanced sentence.

Robbery and Aggravated Robbery

Texas robbery may be committed in either of two basic ways: by causing injury during the course of a theft, or by threatening or placing another in fear during the course of a theft. See Texas Penal Code 29.02(a). Because the Texas offense of robbery‑by‑injury may be committed by the reckless infliction of injury, the Fifth Circuit held in United States v. Ybarra, 2021 WL 3276471 (5th Cir. 2021)(unpublished), that it no longer qualifies as an ACCA “violent felony” under Borden. This is so even if the record establishes that the defendant pleaded guilty to causing such injury intentionally or knowingly. See Ybarra, 2021 WL 3276471, n.1. The three different mental states with which a defendant may commit robbery‑ by‑injury (intent, knowledge and recklessness) in Texas do not define separate offenses, so the crime is not “divisible” for the purposes of criminal history enhancements. See id. (For more on the “divisibility” of prior statutes of conviction for the purpose of criminal history enhancements, see the remarkable case of Mathis v. United States, 136 S.Ct. 2243 (2016), an unsurpassed aid to federal criminal defendants facing recidivism enhancements). The Fifth Circuit has not yet decided whether all forms of aggravated robbery‑by‑injury (e.g. infliction of injury during theft with a deadly weapon, infliction of serious bodily injury during theft, or infliction of injury against a disabled or senior victim during theft) constitute “violent felonies” after Borden. But decisions from the aggravated assault context, see below, strongly suggest that the addition of these aggravating factors will not change the basic analysis.

No such luck for those convicted of robbery‑by‑threat. The Fifth Circuit held in United States v. Garrett, 24 F.4th 485 (5th Cir. 2022), that Texas simple robbery‑by‑ threat qualifies as a “violent felony” under ACCA. This is because Texas robbery‑by‑threat, unlike robbery‑ by‑injury, can only be committed intentionally  or knowingly,  not wrecklessly. And unsurprisingly, the Fifth Circuit held in United States v. Jackson,  F.4th , 2022 WL 951232 (5th Cir. 2022), that aggravated robbery‑by‑threat is likewise a “violent felony” under ACCA. Note, however, that if the government does not produce a record of the defendant’s robbery conviction showing that it stemmed from the statute’s threat prong, ACCA will not apply. See United States v. Balderas, 2022 WL 851768 (5th Cir. 2022)(unpublished).

Borden does not appear to help those subjected to USSG 4B1.2 on the basis of Texas robbery convictions. In contrast to ACCA’s definition of “violent felony,” Guideline 4B1.2’s definition of “crime of violence” specifically enumerates “robbery.” That is, a prior conviction can be a “crime of violence” under USSG 4B1.2 if it either has force as an element, or “is… robbery.”¹ And the Fifth Circuit has held that Texas robbery, see United States v. Williams, 2022 WL 71826 (5th Cir. 2022)(unpublished), and aggravated robbery, see United States v. Nava, 2021 WL 5095976 (5th Cir. 2021)(unpublished), are both equivalent to “generic robbery” as the Guideline uses the term. There are good reasons to wonder about this conclusion – Texas, in contrast to most states, does not require that the defendant acquire property as a consequence of his or her act of  violence – but the Fifth Circuit isn’t biting on that distinction yet.

Aggravated Assault

As with the Texas robbery statute, defendants can violate the Texas aggravated assault statute by either inflicting injury or threatening it. See Tex. Penal Code 22.01(a), 22.02(a). The Fifth Circuit found in United States v. Combs, 2022 WL 287556 (5th  Cir. 2021)(unpublished), that aggravated‑ assault‑by‑injury lacks the “use of force against the person of another” as an element and accordingly does not constitute a “violent felony” under ACCA. See also United States v. Gomez-Gomez, 23 F.4th 575 (5th Cir. 2022)(same result under 18 U.S.C. §16(a)). Because the three mental states associated with aggravated‑assault‑by‑injury do not represent distinct offenses, it will not matter if the records of conviction show a conviction for intentional or knowing infliction of injury. See United States v. Lara-Garcia, 2021 WL 5272211 (5th Cir. 2021) (unpublished). The Fifth Circuit has held that aggravated‑assault‑ by‑threat represents a violent felony after Borden, see United States v. Lopez, 2022 WL 576407 (5th Cir. 2022)(unpublished), because it requires intentional or knowing conduct. The Fifth Circuit’s post‑ Borden aggravated assault rulings under ACCA, in other words, track its rulings regarding robbery.

Here too, Borden doesn’t seem to help those subjected to an enhanced Guideline range. Guideline 4B1.2 names “aggravated assault” as a “crime of violence.” USSG 4B1.2(a) (2). And the Fifth Circuit has held that the Texas offense falls within the “generic” definition of “aggravated assault.” See United States v. Guillen-Alvarez, 489 F.3d 197, 200‑201 (5th Cir. 2007). It reaffirmed that conclusion after Borden. See United States v. Blackmon, 844 Fed. Appx. 729 (5th Cir. 2021) (unpublished). But note that there is a long‑standing circuit split as to whether Texas aggravated‑assault‑by‑injury qualifies as “generic aggravated assault,” centering on the significance of its reckless mens rea. See United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016). Because the Supreme Court has said that it will usually not take up circuit splits on Guideline questions, see Buford v. United States, 532 U.S. 59 (2001), the issue must likely be resolved by the Sentencing Commission, should it ever again enjoy a quorum.

Family Violence

Texas has two felony assault offenses that require a family or dating relationship between the defendant and the victim. One of these requires a prior conviction for family violence, see Tex. Penal Code 22.01(b)(2)(A); the other requires the defendant to impede the victim’s breath or circulation, see Tex. Penal Code 22.01(b)(2)(A). Both offenses may be committed recklessly, so the Fifth Circuit held in United States v. Greer, 20 F.3d 1071 (5th Cir. 2021), that neither is a “crime of violence” under USSG 4B1.2. This holding should exclude both offenses as “violent felonies” under ACCA as well. Setting aside the timing requirements under USSG 4B1.2, all offenses that meet the definition of “violent felonies” ACCA qualify as “crimes of violence” under USSG 4B1.2.

Assault on a Public Servant

Because the Texas offense of assault on a public servant may be committed recklessly, the Fifth Circuit held that it does not satisfy the definition of a “crime of violence” under USSG 4B1.2. See United States v. Bates, 24 F.4th 1017 (5th Cir. 2022). (Older Fifth Circuit authority found that it is not equivalent to the enumerated offense of “aggravated assault.” See United States v. Fierro-Reyna, 466 F.3d 324 (5th Cir. 2006)). As with family violence, this holding would also appear to preclude its use as a “violent felony” under ACCA.

Murder

The Fifth Circuit ducked a chance to decide whether murder is a “violent felony” after Borden in United States v. Vickers, 2022 WL 780421 (5th Cir. 2022)(unpublished). There is good reason to think it might not be. Texas murder may be committed by causing death through “an act clearly dangerous to human life” in the course of another felony, a standard that sounds a lot like recklessness. See Texas Penal Code 19.02(b)(3). “Murder” is an enumerated offense under USSG 4B1.2, so disqualifying it as a “crime of violence” under that Guideline may pose more of an uphill battle.

Burglary

Borden does not appear to affect Texas burglary offenses under either ACCA or USSG 4B1.2. Under pre‑ Borden precedent, Texas burglary constitutes a “violent felony” under the ACCA, see United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), but does not represent a “crime of violence” under USSG 4B1.2, see United States v. Reado, 776 F. App’x 261, 262 (5th Cir. 2019)(unpublished).

Drug Trafficking

Likewise, Borden does not seem to affect Texas drug trafficking offenses. Both delivery and possession with intent to deliver qualify as “serious drug offenses” under ACCA, see United States v. Prentice, 956 F.3d 295 (5th Cir. 2020), but do not represent “controlled substance offenses” under USSG 4B1.2, see United States v. Tanksley, 848 F.3d 347 (5th Cir. 2017). There may be some hope for defendants facing ACCA sentences on the basis of drug conviction. Some other circuits have found that state drug laws criminalize a greater range of substances than federal law, rendering some drug convictions from those states overbroad for the purposes of ACCA. See United States v. Ruth, 966 F.3d 642 (7th Cir. 2020); United States v. Hope, 28 F.4th 487 (4th Cir. 2022).

Shut up and give us the chart, Joel:

1. In contrast to the extensive list of enumerated offenses found in USSG 4B1.2, ACCA enumerates only four offenses: arson, burglary, extortion, and offenses involving explosives. The thoroughly baffling nature of this quartet – including seldom prosecuted offenses like arson and extortion, but conspicuously omitting murder, rape, and robbery – contributed to the Supreme Court’s decision to strike down portions of ACCA as unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015).

TCDLA

Joel Page

Joel Page is the Appellate Supervisor for the Federal Public Defender of the Northern District of Texas, where he has worked for 17 years. He secured a favorable opinion from the Supreme Court in Davis v. United States, 140 S.Ct. 1060 (2020), and quite a lot more unfavorable opinions from the Fifth Circuit over the years.