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5TH CIRCUIT HOLDS TEXAS SIMPLE ROBBERY IS NOT CRIME OF VIOLENCE

The 5th Circuit last week ruled that a conviction for Texas robbery is not a crime of violence for purposes of the Armed Career Criminal Act.

Latroy Burris, convicted of being a felon-in-possession of a gun, was sentenced under the ACCA for priors of drug distribution, robbery and aggravated robbery. He conceded the drug conviction counted for ACCA purposes, and the 5th Circuit last year said aggravated robbery was a crime of violence. But Latroy argued that Texas robbery under § 29.02(a) of the Texas Penal Code was not a crime of violence.

Texas robbery requires that in the course of committing theft, a person intentionally, knowingly, or recklessly cause bodily injury to another; or intentionally or knowingly threaten or place someone in fear of imminent bodily injury or death.

The Circuit agreed with Latroy, finding that Texas law interprets “bodily injury” expansively, encompassing even “relatively minor physical contacts so long as they constitute more than mere offensive touching.” The Circuit said the Supreme Court decision on “physical force,” Curtis Johnson v. United States, suggests that causing “relatively minor physical contacts” does not entail the “violent force” required to make the state robbery offense a “crime of violence.”

Latroy will be resentenced without the ACCA 15-year mandatory minimum.

United States v. Burris, Case No. 17-10478 (5th Cir. June 18, 2018)

– Thomas L. Root