Texas Robbery is a Violent Felony
David Lee Garrett pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1), and was sentenced under 18 U.S.C. 924(a)(2) to 84 months of imprisonment. The district court had determined two of his prior convictions for burglary of a habitation under Texas Penal Code 30.032(a) qualified as violent felonies under the ACCA, but that a prior robbery conviction under Texas Penal Code 29.02 did not. The Government appealed.
The Government argued Garrett’s sentence should vacated and remanded because now-binding precedent holds that Texas robbery is a violent felony under Section 924(e). Garrett cross-appealed, arguing his conviction should be reversed because Section 922(g)(1) is facially unconstitutional and further that Texas robbery does not qualify as a violent offense under the ACCA. Alternatively, he argued his non-ACCA sentence should be affirmed because Texas burglary is not generic burglary and thus does not qualify as a violent felony. He conceded, however, that his arguments were foreclosed by precedent.
The Fifth Circuit said the sentencing issues were foreclosed by United States v. Herrold and United States v. Burris. In Burris, the court concluded robbery-by-threat and robbery-by-injury under Texas Penal Coee 29.02 were violent felonies under Section 924(e)(2)(B)(i)’s force clause. In Herrold, the court held Texas burglary is generic burglary and is a violent felony under the ACCA. It vacated Garrett’s non-ACCA sentence, and remanded the case for resentencing.