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877 F.3d 562

Docket No. 16-11601

United States v. Cain

Fifth Circuit Court of Appeals

Filed November 10, 2017

Fifth Circuit Court of Appeals · decided 2017-11-10

Cited by 2 later decisions — most recently September 2023

2 counsel of record

Applies 18 U.S.C. § 924

Applies TX HS § 481.112

Relies on Taylor v. United States · 136 S. Ct. 1619 - Luna Torres v. Lynch · 135 S. Ct. 2239 - Walker v. Texas Div., Sons of Confederate Veterans, Inc.

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 2017-11-10

View the full empirical analysis of this case →

¶1Brian W. McKay, Esq., James Wesley Hendrix', Assistant- U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

¶2Kevin Joel Page, Douglas Anthony Morris, Esq., Federal Public Defender’s Office, •Northern District of Texas, Dallas, TX, for Defendant-Appellant

¶3Before JONES, SMITH, and PRADO, Circuit Judges.

¶4PER CURIAM:

¶5Fredrick 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.

¶6I.

¶7Cain 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 presentehce report (“PSR”) identified three1 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.

¶8II.

¶9The 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).2 Cain acknowledges that binding circuit precedent forecloses his position but' contends that United States v. Johnson, 135 S.Ct. 2251 (2015), *563and Torres v. Lynch, — U.S. ——, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016),. undermine that precedent. We disagree.

¶10Johnson addressed the residual clause under the violent-felonies portion of the ACCA, which •Wiribnsh 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 Win-bush’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.3

¶11Because no Supreme Court decisions “expressly or implicitly”4 overrule Win-bush or Vickers, we AFFIRM.

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