Case: 19-10813 Document: 00516193107 Page: 1 Date Filed: 02/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 7, 2022
No. 19-10813 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Treshun Devonte Bates,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CR-24-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before King, Graves, and Willett, Circuit Judges.
Per Curiam:
Treshun Devonte Bates was convicted of being a felon in possession
of a firearm. He now appeals his 71-month sentence, contending that the
district court improperly applied an enhancement under the Sentencing
Guidelines for defendants with prior felony convictions for “crime[s] of
violence.” U.S.S.G. § 2K2.1(a)(4)(A). Bates’s prior conviction was for
Texas’s version of assault of a public servant, which has a minimum mental-
Case: 19-10813 Document: 00516193107 Page: 2 Date Filed: 02/07/2022
No. 19-10813
state requirement of recklessness. See Tex. Penal Code § 22.01(a)(1),
(b)(1). Recklessness crimes, Bates argues, cannot qualify as crimes of
violence under the Sentencing Guidelines’ version of the “elements clause.”
See U.S.S.G. § 4B1.2(a)(1) (defining crimes of violence as including certain
offenses that “ha[ve] as an element the use, attempted use, or threatened use
of physical force against the person of another”). We agree, and therefore
VACATE and REMAND to the district court for resentencing.
We previously rejected Bates’s argument. Our then-binding circuit
precedent squarely held that Texas assault of a public servant could qualify
as a crime of violence under the elements clause—even if the crime, itself,
can be committed recklessly. See United States v. Bates, 797 F. App’x 888,
888 (5th Cir. 2020) (per curiam). We therefore initially affirmed the district
court.
Id. Bates petitioned the Supreme Court for review. The Supreme
Court then issued its judgment in Borden v. United States,
141 S. Ct. 1817
(2021) (plurality opinion), granted Bates’s petition, vacated our judgment,
and remanded back to us “for further consideration in light of [Borden],”
Bates v. United States,
141 S. Ct. 2782 (2021).
In Borden, four justices opined that crimes that can be committed
recklessly cannot qualify as a “violent felony” under the “elements clause”
of the Armed Career Criminal Act. Id. at 1825. Justice Thomas
concurred, though for a slightly different reason than the four-justice
plurality gave. 1 But this is not an ACCA case. The Sentencing Guidelines do
1
The ACCA’s elements clause defines “violent felony” as an offense requiring
the “use of physical force against the person . . . of another.” 18 U.S.C. § 16(a). Borden’s
four-justice plurality reasoned that recklessness crimes cannot meet that definition since
“[t]he phrase ‘against another,’ when modifying the ‘use of force,’ demands that the
perpetrator direct his action at, or target, another individual,” and “[r]eckless conduct is
not aimed in that prescribed manner.”
141 S. Ct. at 1825 (emphasis added). Justice
Thomas concurred, though he reasoned that “a crime that can be committed through
mere recklessness does not have as an element the ‘use of physical force’ because that phrase
2
Case: 19-10813 Document: 00516193107 Page: 3 Date Filed: 02/07/2022
No. 19-10813
not fall under that statute. Moreover, we do not generally read fragmented
Supreme Court decisions to apply broadly beyond their context. See Marks v.
United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides
a case and no single rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . . ’” (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976)
(plurality opinion)). However, we have since resolved any doubt about
Borden’s applicability to Bates, and so we must apply it now.
Specifically, in United States v. Gomez Gomez we held that Marks does
not limit Borden to the ACCA context. __ F.4th __, No. 17-20526, 2022
WL 152160, at *1 n.1 (5th Cir. Jan. 18, 2022) (per curiam). In United States v.
Greer we held that Borden governs what can (and can’t) qualify as a crime of
violence under the Sentencing Guidelines.
20 F.4th 1071, 1075 (5th Cir.
2021). And in United States v. Anderson we acknowledged that Texas assault
of a public servant can be committed recklessly. See
559 F.3d 348, 355 (5th
Cir. 2009) (“To have violated Tex. Penal Code § 22.01(b)(1) . . .
Anderson must have actually ‘cause[d] bodily injury to another’ with a mens
rea of at least recklessness.”). 2 In the end, then, Bates is right. Under Borden,
because Texas assault of a public servant can be committed recklessly, Bates
‘has a well-understood meaning applying only to intentional acts designed to cause harm.”
Id. at 1835 (Thomas, J., concurring) (emphasis added) (quoting Voisine v. United States,
136
S. Ct. 2272, 2290 (2016) (Thomas, J., dissenting)).
2
We recognize, of course, that Anderson’s specific holding—that Texas assault of
a public servant qualifies as a crime of violence under the former Sentencing Guidelines’
residual clause, 559 F.3d at 356—was abrogated by the Supreme Court in Johnson v. United
States when it held the residual clause was unconstitutionally vague. 576 U.S. 591, 597
(2015). Anderson did not turn on the Sentencing Guidelines’ elements clause, which our
decision today forecloses as an avenue for finding Texas assault on a public servant as a
crime of violence.
3
Case: 19-10813 Document: 00516193107 Page: 4 Date Filed: 02/07/2022
No. 19-10813
has not committed a crime of violence as defined by the Sentencing
Guidelines’ elements clause. Consequently, the district court erroneously
applied the sentencing enhancement under U.S.S.G. § 2K2.1(a)(4)(A).
We, therefore, VACATE Bates’s sentence and REMAND his case
to the district court for resentencing in light of Borden. 3
3
We note that the Sentencing Guidelines have been updated since Johnson. Today,
the Sentencing Guidelines also contemplate certain enumerated offenses, including
“aggravated assault,” can qualify as crimes of violence. U.S.S.G. § 4B1.1(a)(2). We
requested supplemental briefing in this case after Borden issued. Yet the parties have not
addressed whether Texas assault on a public servant qualifies as aggravated assault, and
thus a crime of violence, under the updated Sentencing Guidelines. Nor did the district
court give that as an alternative reason for Bates having committed a crime of violence
under the Sentencing Guidelines. Therefore, we will not address the issue ourselves and
express no opinion on its applicability on remand.
4
