• United States Court of Appeals, Fifth Circuit
  • 16-10438
Appellant pled guilty to knowingly possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. §922(g)(1). Appellant presentence report determined that he had three prior convictions for violent felonies or serious drug offenses enabling appellee to seek an enhanced penalty under the Armed Career Criminal Act. The act provided that a person who violated §922(g)(1) and who had three previous convictions for a violent felony or a serious drug offense committed on occasions different from one another shall be imprisoned for a minimum of fifteen years. At his sentencing hearing, appellant did not dispute that his two drug convictions were serious drug offenses, but objected to counting his Texas conviction as a "violent felony" and therefore argued that the normal ten-year maximum sentence be applied. The district court concluded Tex. Penal Code §38.14 contained such a "violent felony" definition as found under the ACCA and accordingly sentenced appellant to a prison term of fifteen years and eight months. On appeal, appellant argued that the court should apply the dictionary definition of "force": "violence compulsion or constraint exerted upon or again a person or thing." Dobbs v. State, 434 S.W. 3d 166 (Tex. Crim. App. 2014). The court affirmed and distinguished this case from Dobbs holding that §38.14 could be violated with the use of less than "physical force," and that would not rule out the possibility that the offense "has an element the …threatened use of physical force against the person of another." The court therefore concluded that §38.14 had as an element the "threatened use of force" and qualified as a violent felony under the ACCA. U.S. v. Brenton Thomas Massey, Fifth Circuit, Case No.: 16-10438, 05/31/2017

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