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holding that Samuel Johnson "addressed the residual clause under the violent-felonies portion of the ACCA" and did not "expressly or implicitly overrule" earlier decisions describing word "involving" in "serious-drug-offense portion" of ACCA
Summary of this case from United States v. OjedaOpinion
No. 16-11601
11-10-2017
UNITED STATES of America, Plaintiff–Appellee, v. Fredrick Lynn CAIN, Defendant–Appellant.
Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee. Kevin Joel Page, Douglas Anthony Morris, Esq., Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant
Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.
Kevin Joel Page, Douglas Anthony Morris, Esq., Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant–Appellant
Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:
Fredrick Cain appeals his sentence in regard to the treatment of his conviction under TEX. HEALTH & SAFETY CODE § 481.112(a) as a "serious drug offense" for purposes of an enhancement under the Armed Career Criminal Act ("ACCA"). Finding his argument foreclosed by circuit precedent, we affirm.
I.
Cain pleaded guilty of possession of a firearm after a felony conviction (Count I) and possession of a controlled substance with intent to distribute (Count II). The presentence report ("PSR") identified three Texas drug convictions for possession with intent to deliver a controlled substance, TEX. HEALTH & SAFETY CODE § 481.112(a), triggering enhancements under 18 U.S.C. § 924(e)(2)(A)(ii). The district court overruled Cain's objection and sentenced him, within the enhanced range, to 192 months for Count I with a concurrent 36 months for Count II.
The PSR listed four convictions as qualifying under the ACCA, but the government conceded at sentencing that the fourth did not support an ACCA sentence.
II.
The district court did not err in ruling that Cain's convictions were serious drug offenses. A conviction under Section 481.112(a) qualifies for the ACCA enhancement under § 924(e). Cain acknowledges that binding circuit precedent forecloses his position but contends that United States v. Johnson , 135 S.Ct. 2251 (2015), and Torres v. Lynch , ––– U.S. ––––, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016), undermine that precedent. We disagree.
See United States v. Vickers, 540 F.3d 356 (5th Cir. 2008) ; United States v. Winbush, 407 F.3d 703 (5th Cir. 2005).
Johnson addressed the residual clause under the violent-felonies portion of the ACCA, which Winbush and Vickers distinguished from the serious-drug-offense portion. Torres 's discussion of how to define "described" in the Immigration and Nationality Act does not undermine Winbush 's and Vickers 's discussions of the word "involving" in the ACCA. Those decisions based the interpretation of § 924(e) on an analysis of Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and the statutory context of the ACCA.
See Vickers, 540 F.3d at 365 ; Winbush, 407 F.3d at 707–08 (citing United States v. King, 325 F.3d 110 (2d Cir. 2003) ).
Because no Supreme Court decisions "expressly or implicitly" overrule Winbush or Vickers , we AFFIRM.
United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (internal quotation omitted).
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