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5TH CIRCUIT UNDOES HERROLD DECISION

A lot of people were jubilant last year when the 5th Circuit reversed its long-standing United States v. Uribe decision, and held that Texas burglary was no longer a generic burglary under the Armed Career Criminal Act. If you were benefitted by the decision, we hope you got your petition in fast, because last week, the Circuit reversed course yet again.

The Herrold case has had a topsy-turvy history. A 5th Circuit panel originally affirmed Mike Herrold’s ACCA sentence on the basis that Texas burglary fit the generic definition. Then the Supreme Court, based on its intervening decision in Mathis v. United States, sent the case back for further consideration. Applying the Uribe decision, the 5th Circuit reimposed the ACCA sentence. But the hearing the case en banc, the Circuit reversed Uribe, holding that to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. The Court said held the Texas statute “contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry,” and thus was nongeneric and could not support an ACCA sentence.

On remand after the en banc decision, the district court sentenced Mike to time served. Meanwhile, the government filed a petition for certiorari. Two intervening Supreme Court decisions, Quarles v. United States and United States v. Stitt, foreclosed the two principal grounds on which Mike had contested his ACCA sentencing enhancement, so the Supreme Court sent the case back to the Circuit again.

Before Quarles and Stitt, the Circuit held the Texas burglary statute is non-generic “because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.” But because of the Supreme Court decisions, the 5th said, Mike’s “old arguments no longer avail and his new ones lack merit. We hold that Section 30.02(a)(3) is generic — and Herrold’s three prior felonies are therefore qualifying predicates for a sentence enhancement under the ACCA.”

United States v. Herrold, 2019 U.S. App. LEXIS 31139 (5th Cir. Oct. 18, 2019)
– Thomas L. Root