UNITED STATES OF AMERICA v. DANTANA TANKSLEY (2017)

ON PETITION FOR REHEARING EN BANC

The government has filed a petition for en banc rehearing. The en banc petition remains pending. This court supplements its opinion entered on petition for panel rehearing to reaffirm that, under Texas law, section 481.112(a) of the Texas Health and Safety Code is indivisible and “establishes alternative means of punishing an offense in the continuum of drug distribution.” Weinn v. State, 326 S.W.3d 189, 194 (Tex. Crim. App. 2010); see United States v. Tanksley, 848 F.3d 347, 352 (5th Cir. 2017). We reached this conclusion based on Lopez v. State, 108 S.W.3d 293 (Tex. Crim. App. 2003). In urging the en banc court to rehear the case, the government argues our holding “is clearly inconsistent with Guerrero v. State, 305 S.W.3d 546 (Tex. Crim. App. 2009), which controls the issue and holds that manufacturing and possessing with intent to deliver a controlled substance are separate offenses.” The government's argument is misguided because it is drawn from a plurality opinion. Weinn makes clear that Guerrero never upset Lopez. Weinn, 326 S.W.3d at 193 (footnotes omitted) (explaining that, in Guerrero, the “majority, comprised of two concurring judges and three dissenting judges, noted that the legislature did not intend multiple punishments for manufacture and simultaneous possession with intent to deliver with respect to a single quantity of controlled substances.”). Without a doubt, Weinn “definitively” establishes that Section 481.112 is an indivisible statute. See Mathis v. United States, 136 S.Ct. 2243, 2256 (2016).¹

FOOTNOTES

1.   We note a typographical error in the original Opinion, which wrongly referenced “Hinkle's holding that Section 481.112 is divisible.” Hinkle, of course, found Section 481.112 to be indivisible. To avoid any future confusion, we also note that our harmless error analysis relied exclusively on the test set forth in United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010), because the district court did not consider the correct guidelines range. See United States v. Richardson, 676 F.3d 491, 511 (5th Cir. 2012) (“[A] guidelines calculation error is harmless where the district court has considered the correct guidelines range and has stated that it would impose the same sentence even if that range applied.”).

REAVLEY, Circuit Judge: