United States v. Fredrick Cain

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals

No. 16-11601 Fifth Circuit

FILED November 10, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA,

Plaintiff–Appellee, versus

FREDRICK LYNN CAIN,

Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Texas No. 3:16-CR-26-1

Before JONES, SMITH, and PRADO, Circuit Judges. PER CURIAM:

Fredrick 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.

No. 16-11601 I. Cain 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 presentence report (“PSR”) identified three 1 Texas drug convic- tions 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.

II. The 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), and Torres v. Lynch, 136 S. Ct. 1619 (2016), undermine that precedent. We disagree.

Johnson addressed the residual clause under the violent-felonies portion of the ACCA, which Winbush and Vickers distinguished from the serious-drug- offense portion. Torres’s discussion of how to define “described” in the Immi- gration and Nationality Act does not undermine Winbush’s and Vickers’s dis- cussions of the word “involving” in the ACCA. Those decisions based the inter- pretation of § 924(e) on an analysis of Taylor v. United States, 495 U.S. 575 (1990), and the statutory context of the ACCA. 3

1The PSR listed four convictions as qualifying under the ACCA, but the government conceded at sentencing that the fourth did not support an ACCA sentence. 2 See United States v. Vickers, 540 F.3d 356 (5th Cir. 2008); United States v. Winbush, 407 F.3d 703 (5th Cir. 2005). 3 See Vickers, 540 F.3d at 365; Winbush, 407 F.3d at 707–08 (citing United States v.

No. 16-11601 Because no Supreme Court decisions “expressly or implicitly” 4 overrule Winbush or Vickers, we AFFIRM.

King, 325 F.3d 110 (2d Cir. 2003)). 4 United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (internal quotation omitted).