Description: Houston, Texas criminal defense lawyer represented the Defendant charged with felony possession of a firearm.

olando Villarreal pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court enhanced Villarreal’s sentence under the Armed Career Criminal Act,
18 U.S.C. § 924(e), finding that the ACCA’s sentencing enhancement was
applicable because of a prior burglary and two prior aggravated assaults. Villarreal filed a motion under 28 U.S.C. § 2255 challenging the enhancement.
In light of Borden v. United States, we VACATE the sentence and REMAND the case to the district court with instructions to resentence Villarreal without the ACCA enhancement.
United States Court of Appeals
Fifth Circuit
FILED
December 5, 2023
Lyle W. Cayce
Clerk
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No. 19-40811
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I.
This case has an extensive procedural history, as it traversed decisions
by the Supreme Court and this Court in defining the limits of the ACCA.
1
Villarreal’s appeal bounced between the district court, this Court, and the
Supreme Court over the span of six years from the filing of his motion under
28 U.S.C. § 2255. The district court wrestled with at least three intervening
Supreme Court cases and other decisions from this Court.
On September 8, 2011, Rolando Villarreal was chargedwith one count
under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) for being a felon in possession of
a firearm and on February 6, 2012, pleaded guilty. At rearraignment, the
judge told Villarreal that his sentence “[could] be up to ten years’
imprisonment.” The government objected to Villarreal’s initial presentence
report on the grounds that Villarreal was an armed career criminal under the
ACCA, codified as 18 U.S.C. § 924(e). The ACCA provides for a sentencing
enhancement for persons convicted of violating 18 U.S.C. § 922(g) (felon-inpossession) after three prior convictions “for a violent felony or serious drug
offense.”2
It defines “violent felony” as a “crime punishable by
imprisonment for a term exceeding one year” which:
(1) “has as an element the use, attempted use, or threatened
use of physical force against the person of another; or”
(2) “is burglary, arson, or extortion, [or] involves use of
explosives, or”
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1 See, e.g., Johnson v. United States, 576 U.S. 591 (2015); Borden v. United States,
141 S. Ct. 1817 (2021); United States v. Clay, 921 F.3d 550 (5th Cir. 2019).
2
18 U.S.C. § 924(e)(1).
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(3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”3
The first clause (1) is referred to as the “elements” or “force” clause,
and the third clause (3) is the “residual” clause. A Borden claim speaks to the
elements clause, and a Johnson claim challenges the district court’s use of the
residual clause when sentencing.4
Following the government’s objection, the revised PSR found that the
ACCA’s sentencing enhancement was applicable because Villarreal had been
convicted for a prior burglary of habitation and two prior aggravated assaults,
and he was subject to a mandatory minimum of 15 years’ imprisonment. The
district court overruled Villarreal’s objections to the use of the burglary
conviction and sentenced him to 188 months. Villarreal appealed his
sentence arguing, inter alia, that “the district court erred by imposing the
enhanced penalties [of the ACCA] . . . based on his prior Texas burglary
conviction.”5 His appeal did not challenge the use of the aggravated assault
convictions as a basis for his enhancement. This Court rejected Villarreal’s
challenge to the use of the burglary conviction and affirmed the district
court’s judgment on April 17, 2013.
6
In June 2015, the Supreme Court issued its opinion in Johnson v.
United States, holding that the ACCA’s residual clause was
unconstitutionally vague.7 The Supreme Court held that Johnson applied
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3
18 U.S.C. §924(e)(2)(B).
4 See generally Johnson, 576 U.S. at 593–97; Borden, 141 S. Ct. at 1822–25.
5 United States v. Villarreal, 519 F. App’x 236 (5th Cir. 2013) (unpublished).
6
Id. at 237.
7 Johnson, 576 U.S. at 593–95.
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retroactively to cases on collateral review.8
In light of these developments at
the Supreme Court, Villarreal promptly filed his motion to vacate his
sentence under 28 U.S.C. § 2255 on June 6, 2016. His pro se motion asserted
that the ACCA enhancement was in error in light of Johnson, specifically
citing to the ACCA’s residual clause. The district court found that, in light
of Johnson, Villarreal’s motion may have been timely and ordered the
government to respond. Unsure whether the motion was timely, the district
court allowed Villarreal to file a supplemental memorandum to provide “any
other information or legal authority regarding the timeliness of his § 2255
motion (apart from what is set out in his initial briefing).”
Prior to the government’s response, Villarreal filed a supplemental
memorandum in which he moved to amend his petition under Fed. R. Civ. P.
15(a) & (d). The supplemental memorandum stated, in part:
As Villarreal could be convicted under the Texas statute for
causing serious bodily injury or assaulting a peace officer absent
proof he used physical force, his prior offenses are not crimes
of violence based on the residual clause (or force clause) of the
ACCA . . . Fifth Circuit decisions recognize that to qualify as a
crime of violence under the residual clause, or force clause for
that matter, a statute must focus on the means used to commit
the crime, not its result. Using force is a crime of violence,
causing injury is not.
In response, the government did not contend that Villarreal’s
sentence enhancement was not pursuant to the residual clause. Rather, it
argued that Villarreal’s aggravated assault convictions fell under ACCA’s
“elements” or “force” clause. Villarreal filed his response, arguing that his
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8 Welsh v. United States, 578 U.S. 120, 135 (2016).
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burglary conviction could not qualify as a predicate offense under the ACCA
in light of the Supreme Court’s June 23, 2016, decision in Mathis v. United
States.
9 One day before Villarreal filed his response, this Court handed down
United States v. Herrold, which itself reviewed Mathis.
10 Herrold held that
Texas’ burglary of habitation no longer qualifies as a violent felony under
§ 924(e).
11 About two months after his response, Villarreal asked “that
Judicial Notice be taken in light of United States v. Herrold.” Villarreal also
raised for a third time his request to be appointed counsel, which the district
court finally granted.
The magistrate judge issued an initial report that recommended
granting Villarreal’s § 2255 motion in light of Johnson and Herrold.
12 Both
parties objected to the magistrate judge’s recommendations. The magistrate
judge then asked for additional briefing in light of United States v. Clay, which
held that “a prisoner bringing a successive § 2255 petition must show that it
is ‘more likely than not’ that the sentencing court relied on the residual
clause to prove that his claim ‘relies on’ Johnson.”13 After briefing, the
magistrate judge recommended dismissing Villarreal’s petition for
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9
579 U.S. 500 (2016). In Mathis, the Supreme Court held that a prior conviction
does not qualify as the generic form of a predicate violent felony offense listed in the ACCA
if an element of the crime of conviction is broader than an element of the generic offense
because the crime of conviction enumerates various alternative factual means of satisfying
a single element. Id.
10 883 F.3d 517, 520 (5th Cir. 2018) (en banc), cert. granted, judgment vacated, 139 S.
Ct. 2712 (2019).
11 Id.
12 Villarreal objected to the magistrate judge’s conclusions with respect to his
aggravated assault convictions. The government objected that Villarreal’s petition was
untimely.
13 Clay, 921 F.3d at 553.
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untimeliness. Villarreal objected and the district court adopted the
magistrate’s recommendation. Villarreal appealed.
This Court denied Villarreal’s motion for a certificate of appealability
(“COA”), finding Villarreal had failed to show that “jurists of reason would
find it debatable whether the petition states a valid claim of a denial of a
constitutional right.”14 Villarreal petitioned for certiorari, with the following
questions presented:
I. Whether a statute has as an element the use of force
against the person of another when a conviction under that
statute can be based on a reckless mental state.
II. Whether reasonable jurists could debate the district
court’s decision to dismiss Mr. Villarreal’s motion to vacate.15
The Supreme Court granted Villarreal’s petition and vacated the
judgment, remanding the case to our Court in light of Borden v. United
States.
16 In Borden, the Supreme Court held that a criminal offense that
requires only a mens rea of recklessness cannot count as a “violent felony”
under the elements clause of the ACCA.
17
Our Court then issued a remand to the district court in which “[w]e
express[ed] no opinion on whether Villarreal should be allowed to amend his
petition . . . which [is a] matter[] left to the sound discretion of the district
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14 United States v. Villarreal, No. 7:16-CV-299, 2020 WL 9255215, at *1 (5th Cir.
Dec. 29, 2020) cert. granted, judgment vacated, 142 S. Ct. 56 (2021) (unpublished) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
15 Petition for Writ of Certiorari, Villarreal v. United States, 142 S.Ct. 56 (2021)
(mem.) (No. 20-7790).
16 Villarreal, 142 S. Ct. at 56–57.
17 Borden, 141 S. Ct. at 1817.
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court.” After this Court remanded, the United States filed a motion to
reconsider the remand order. It argued that because Villarreal did not have a
COA, the court lacked jurisdiction to remand the case as it did. We
subsequently withdrew the remand order and remanded for consideration of
whether Villarreal was entitled to a COA. Villarreal moved for a COA, and
the government agreed a COA should issue. After a proposed COA, and
Villarreal’s objection to that proposal, the district court adopted the
magistrate judge’s originally proposed COA. Villarreal appealed, and this
court eventually amended the COA. The amended COA reads: “[d]oes
Movant’s petition assert a claim that Movant’s sentence was improperly
enhanced under the ‘elements’ or ‘force’ clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on the predicate offense
that allowed conviction for reckless conduct?”
II.
“In challenges to district court decisions under 28 U.S.C. § 2255, we
measure findings of fact against the clearly erroneous standard and questions
of law de novo.”18 The dispositive question in this appeal is whether
Villarreal’s § 2255 motion asserted a Borden claim. If so, then we must reach
the merits of the case and address whether Villarreal is entitled to the
requested relief as a matter of law.
III.
First, we find that Villarreal did assert a Borden claim in his § 2255
motion. Villarreal has consistently asserted the claim that his ACCA
sentence could not be justified by his prior Texas aggravated assault
convictions because the statute of conviction did not meet the requirements
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18 United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
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of the elements or force clause as it allowed for a conviction for reckless
conduct. That is a Borden claim, the issue framed by the COA.
As an initial matter, we note that “[p]ro se habeas corpus petitions
must be construed liberally.”19 That is especially true in this case, as
Villarreal’s motion has bounced between the district court, this Court, and
the Supreme Court over the span of six years, traversed by multiple
intervening cases from the Supreme Court.
In June 2016, Villarreal filed his handwritten pro se petition arguing
that none of his prior convictions could be the basis for an ACCA
enhancement under the now-unconstitutional “residual” clause. In his
September 28, 2016, supplemental memorandum, Villarreal additionally
argued that his prior convictions did not meet the ACCA force or elements
clause because the Texas assault statute “[f]irst off . . . only provides that the
government prove that a defendant created a risk of harm to another.” The
supplemental memorandum spelled out the elements of the Texas
aggravated assault statute, which allows a conviction when a person
“recklessly causes bodily injury.”20 The supplemental memorandum also
stated: “Petitioner contends that both priors of aggravated assault are void of
the use of force and physical force clauses of [the ACCA]. . . . absent proof
he used physical force, [Villarreal’s] prior offenses are not crimes of violence
based on the . . . force clause.” The supplemental memorandum explained
that:
[A]n assault under [the relevant Texas aggravated assault
statutes] could be committed absent the use of destructive or
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19 United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989) (per curiam) (citing
Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir.1988)).
20 TEX. PENAL CODE ANN. §22.01(a)(1)(3) (emphasis added).
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violent force . . . Petitioner Villarreal contends that the Texas
assault statute could be violated not only in a nonviolent
manner, yet by the mere act of some sort of physical contact
like touching . . . Fifth Circuit decisions recognize that to
qualify as a crime of violence under the residual clause, or force
clause for that matter, a statute must focus on the means used
to commit the crime, not its result.
The supplemental memorandum pressed the claim that, under the
relevant case law at the time, his aggravated assault convictions did not meet
the elements or force clause requirement as the Texas aggravated assault
statute allowed convictions for reckless conduct.
It is not true then, as Appellee argues, that construing the above
language to read like a Borden claim “would require this [C]ourt to stretch
the principle of liberal construction of pro se pleadings beyond recognition.”21
Of course, Villarreal is not prescient—he could not have known that the
technical “label” courts would use to describe the kind of claim he advanced
in his supplemental memorandum would be called a “Borden” claim. While
labels are useful analytical tools in distinguishing between different types of
claims, they are not dispositive. Rather, although there is limited case law in
the Fifth Circuit discussing the standard to assess whether something is a
new claim or an argument in furtherance of an existing claim, at minimum
this Court looks to the substance of the claim.22 And in this case, as spelled
out in the supplemental memorandum, the substance of Villarreal’s claim is
that his predicate aggravated assault convictions did not meet the elements
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21 United States v. Martin, 68 F.3d 464, 464 n.1 (5th Cir. 1995) (unpublished).
22 See Russell v. Denmark, 68 F.4th 252, 269 (5th Cir. 2023).
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or force clause requirement of the ACCA as they allowed for convictions for
reckless conduct without the requisite mens rea. That is a Borden claim.
The dissent faults us for attempting to “shoehorn” the Texas aggravated assault statute’s mens rea requirement into Villarreal’s “actual”
argument, “which is about the actus reus.” Sophistry aside, Villarreal pressed
the claim that the Texas assault statute only requires proof that a defendant
created a risk of harm to another, i.e., that his sentence was enhanced under
a statute that allows for convictions for reckless conduct. Villarreal cited to
the relevant statute, which again on its own terms allows for convictions
when a person “recklessly causes bodily injury.”23 The COA, as amended by
this Court, asks whether Villarreal’s petition asserts a claim that his sentence
was improperly enhanced under the ‘elements’ or ‘force’ clause of the
ACCA “based on the predicate offense that allowed conviction for reckless
conduct?” Considering Villarreal’s incarcerated pro se status, his petition
asserted exactly that—Villarreal argued that his sentence was improperly
enhanced under a statute that allows for convictions for reckless conduct
lacking the requisite mens rea.
IV.
As Villarreal’s § 2255 motion, as amended by the supplemental
memorandum, included a Borden claim, this Court will reach the merits of
his claim. We hold that Villarreal’s sentence enhancement under the ACCA
must be vacated.
Villarreal’s sentence is “in excess of the maximum authorized by
law.” 28 U.S.C. § 2255(a). After Borden, convictions under the relevant
aggravated assault statute here, Texas Penal Code §§ 22.02(a)(1) and
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23 TEX. PENAL CODE ANN. §22.01(a)(1)(3).
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22.02(a)(2), cannot constitute predicate offenses under the ACCA because
the offenses do not require the “physical use of force against the person of
another.”24 In this case, because Villarreal’s sentence was enhanced based
on two predicate aggravated assault convictions that do not qualify as violent
felonies, Villarreal’s sentence enhancement under the ACCA must be
vacated. The government, while rightfully duty bound to defend its position
in this years-long litigation, responsibly concedes that should this Court find
Villarreal asserted a Borden claim, he would be entitled to the requested

Outcome: Villarreal’s request for relief has been bouncing among the federal
courts for over six years. But no more. Because we find that Villarreal
asserted a Borden claim in his § 2255 motion, and because his two predicate
aggravated assault convictions are not violent felonies for purposes of the
ACCA, we VACATE Villarreal’s sentence and REMAND the case to the
district court with instructions to resentence Villarreal without consideration
of the ACCA

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