UNITED STATES v. BURRIS (2021)

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

This case is back before us because the U.S. Supreme Court granted Mr. Burris's petition for certiorari, vacated our earlier decision, and remanded the case for further consideration in light of Borden v. United States, ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021).

Mr. Burris pleaded guilty to a two-count federal indictment charging him with possessing a firearm after a felony conviction and possessing a substance containing heroin. Because Mr. Burris had three prior Texas convictions that the district court considered violent felonies under the Armed Career Criminal Act, it applied the Act's three-strike enhancement, and its corresponding fifteen-year mandatory minimum, to the felon-in-possession count. See 18 U.S.C. § 924(e)(1), (2)(B). We initially affirmed.

But one of Mr. Burris's convictions was for simple robbery under Texas Penal Code § 29.02(a)(1). And Burton now makes it clear that simple robbery is not a violent felony for purposes of applying the ACCA's mandatory fifteen-year minimum enhancement because it could be committed simply by recklessly causing another to suffer injury during a theft. 141 S. Ct. at 1825; United States v. Ybarra, No. 20-10520, ––– Fed.Appx. ––––, ––––, 2021 WL 3276471, at *1 (5th Cir. July 30, 2021).

Accordingly, we GRANT appellant's unopposed motion to vacate the decision of the district court, VACATE the decision, and REMAND for resentencing. All other motions are DENIED as moot.

FOOTNOTES

FOOTNOTE.  

Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.