United States v. Noel Lerma , 877 F.3d 628 ( 2017 )


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  •      Case: 16-41467   Document: 00514274190     Page: 1   Date Filed: 12/14/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-41467                           FILED
    December 14, 2017
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                               Clerk
    Plaintiff – Appellee,
    v.
    NOEL LERMA,
    Defendant – Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    Before DAVIS, GRAVES, and COSTA, Circuit Judges.
    W. EUGENE DAVIS, Circuit Judge:
    The question presented in this case is whether a conviction under the
    Texas aggravated robbery statute, Texas Penal Code § 29.03, qualifies as a
    “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
    § 924(e). Concluding that the statute is divisible, and that the crime for which
    appellant, Noel Lerma, was convicted previously at least three times is a
    “violent felony” under the ACCA, we AFFIRM.
    I.
    The ACCA provides for a 15-year mandatory minimum term of
    imprisonment and a five-year maximum term of supervised release for those
    defendants convicted of being a felon in possession of a firearm following three
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    prior convictions for a “violent felony.” § 924(e)(1). Absent that sentence
    enhancement, the felon-in-possession statute sets a 10-year maximum prison
    sentence and a three-year maximum supervised release term. See § 924(a)(2);
    18 U.S.C. § 3583(b)(2).
    In 1998, Lerma entered into a plea agreement with the United States
    wherein he admitted to being a felon in possession of a firearm in violation of
    18 U.S.C. § 922(g)(1). In a subsequent modified plea agreement, Lerma agreed
    to be sentenced to 15 years in prison “as an Armed Career Offender pursuant
    to 18 U.S.C. § 924(e).” Lerma did not appeal his sentence, and, in fact, he
    completed his 15-year prison term in 2013. However, Lerma has not begun to
    serve his five years of supervised release because he remains in federal prison,
    serving a 20-year consecutive sentence for unrelated drug charges.
    Lerma now seeks to vacate, set aside, or correct his ACCA sentence
    pursuant to 28 U.S.C. § 2255 based upon the following. In 2015, the Supreme
    Court struck down the ACCA’s “residual clause” as void for vagueness in
    Johnson v. United States, --- U.S. ---, 
    135 S. Ct. 2551
    (2015). Pre-Johnson, the
    ACCA defined the term “violent felony” as any crime punishable by a term of
    imprisonment exceeding one year that also:
    (i)    has as an element the use, attempted use, or threatened use
    of physical force against the person of another; or
    (ii)   is burglary, arson, or extortion, involves use of explosives, or
    otherwise involves conduct that presents a serious potential
    risk of physical injury to another.
    § 924(e)(2)(B). The “residual clause” is the last phrase of § 924(e)(2)(B)(ii):
    “otherwise involves conduct that presents a serious potential risk of physical
    injury to another.”
    Johnson did “not call into question application of the Act to the four
    enumerated offenses” listed in § 924(e)(2)(B)(ii), nor did it call into question
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    any aspect of § 924(e)(2)(B)(i), also known as the “force 
    clause.” 135 S. Ct. at 2563
    . Thus, post-Johnson, the ACCA defines the term “violent felony” as any
    crime punishable by a term of imprisonment exceeding one year 1 that also:
    (i)    has as an element the use, attempted use, or threatened use
    of physical force against the person of another; or
    (ii)   is burglary, arson, extortion, or involves the use of
    explosives.
    In 2016, the Supreme Court held that its decision in Johnson announced
    a substantive rule that applies retroactively on collateral review. Welch v.
    United States, --- U.S. ---, 
    136 S. Ct. 1257
    , 1265 (2016). Lerma, therefore,
    argues that his sentence imposed under the ACCA cannot stand. 2                           His
    argument is three-fold. First, he asserts that his sentence could not have
    constitutionally rested upon the residual clause in light of Johnson and Welch.
    Second, he contends that his prior convictions were not for burglary, arson, or
    extortion, nor did they involve the use of explosives, as required by
    § 924(e)(2)(B)(ii). Third, he argues that the Texas aggravated robbery statute,
    Texas Penal Code § 29.03, does not satisfy the force clause because it does not
    have “as an element the use, attempted use, or threatened use of physical force
    against the person of another.” See § 924(e)(2)(B)(i).
    The Government concedes that Lerma’s sentence could not have
    constitutionally rested upon the residual clause in light of Johnson and Welch.
    The Government also concedes that Lerma’s prior convictions were not for any
    1 There is no dispute that Lerma’s prior convictions for aggravated robbery under
    Texas Penal Code § 29.03 carried prison terms exceeding one year. See TEX. PENAL CODE
    § 29.03(b) (noting that aggravated robbery “is a felony of the first degree”); TEX. PENAL CODE
    § 12.32(a) (“An individual adjudged guilty of a felony of the first degree shall be punished by
    imprisonment in the Texas Department of Criminal Justice for life or for any term of not
    more than 99 years or less than 5 years.”).
    2 Lerma is potentially entitled to § 2255 relief with respect to the supervised release
    portion of his sentence, as well as the date for his ultimate release from prison.
    3
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    of the four enumerated offenses listed in § 924(e)(2)(B)(ii). The only question
    then is whether Lerma’s sentence can be sustained pursuant to the ACCA’s
    force clause. That is, does the crime under the Texas aggravated robbery
    statute for which Lerma was previously convicted at least three times “ha[ve]
    as an element the use, attempted use, or threatened use of physical force
    against the person of another”?
    The district court answered that question in the affirmative and denied
    Lerma’s § 2255 motion. From that denial, and the district court’s subsequent
    issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253, Lerma
    now appeals. 3 As set forth below, we also conclude that the crime under Texas
    Penal Code § 29.03 for which Lerma was previously convicted at least three
    times qualifies as a violent felony under the force clause of the ACCA because
    it has as an element the use, attempted use, or threatened use of physical force
    against the person of another.
    II.
    A.
    The issue presented by this case requires us first to determine the
    elements of aggravated robbery under Texas Penal Code § 29.03. The Supreme
    Court instructs that “[e]lements are the constituent parts of a crime’s legal
    definition—the things the prosecution must prove to sustain a conviction.”
    Mathis v. United States, --- U.S. --- , 
    136 S. Ct. 2243
    , 2248 (2016) (internal
    quotation marks and citation omitted). “At a trial, they are what the jury must
    3 Although Lerma has completed the 15 years of imprisonment imposed as part of his
    sentence under the ACCA, he remains in prison serving the 20 years of imprisonment
    imposed as part of his sentence for federal drug-related crimes. Upon his release, Lerma
    must complete five years of supervised release as part of his sentence under the ACCA.
    Under these circumstances, Lerma is considered “in custody” for his ACCA conviction, and
    this Court, thus, has jurisdiction under § 2255 to consider on collateral review Lerma’s
    challenge to his ACCA sentence.
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    find beyond a reasonable doubt to convict the defendant.” 
    Id. at 2248
    (citations
    omitted). “[A]t a plea hearing, they are what the defendant necessarily admits
    when he pleads guilty.” 
    Id. (citation omitted).
          An element of a crime must be distinguished from the means of
    satisfying a single element. See 
    id. at 2249-51.
    For example, a statute may
    require the use of a “deadly weapon” as an element of a crime. The statute
    may then further list as potential deadly weapons a knife, gun, bat, or similar
    weapon.    That “list merely specifies diverse means of satisfying a single
    element of a single crime.” 
    Id. at 2249.
    A jury need not find any particular
    weapon in the list was used in order to convict, so long as all of the jurors
    agreed that the defendant used a deadly weapon. See 
    id. B. Criminal
    statutes are indivisible or divisible. An indivisible statute sets
    out a single set of elements to define a single crime. In contrast, a divisible
    statute “list[s] elements in the alternative, and thereby define[s] multiple
    crimes.” 
    Id. at 2249.
    If a statute is indivisible, the sentencing court must apply
    the “categorical approach.”    See 
    id. at 2248.
        This approach requires the
    sentencing court, when determining whether a crime qualifies as a violent
    felony under the force clause, to focus solely on whether the elements of the
    crime of conviction include the use, attempted use, or threatened use of
    physical force against the person of another. See 
    id. The sentencing
    court is
    not permitted to review the particular facts of the case. 
    Id. When a
    statute is divisible, however, the sentencing court may use the
    “modified categorical approach” to determine which elements played a part in
    the defendant’s conviction. 
    Id. at 2253.
    The modified approach serves “as a
    tool to identify the elements of the crime of conviction when a statute’s
    disjunctive phrasing renders one (or more) of them opaque.” 
    Id. (citation omitted).
    Under that approach, the sentencing court is allowed to look “to a
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    limited class of documents (for example, the indictment, jury instructions, or
    plea agreement and colloquy) to determine what crime, with what elements, a
    defendant was convicted of.” 
    Id. at 2249
    (citations omitted). The court can
    then determine, in deciding whether the crime satisfies the force clause, if one
    of those elements included the use, attempted use, or threatened use of
    physical force against the person of another.
    In this case, the district court began its analysis by noting that the
    parties had “agreed that the Texas aggravated robbery statute was a divisible
    statute for which the modified categorical approach was appropriate.” The
    district court then went on to analyze the statute as a divisible statute,
    implicitly determining that the statute was divisible.
    C.
    Review of the district court’s divisibility determination would generally
    represent a question of law that we would review de novo. See United States
    v. Olvera, 
    775 F.3d 726
    , 729 (5th Cir. 2015). The Government, however, asserts
    that “Lerma invited any error” as to the district court’s divisibility analysis and
    that, consequently, we should review the district court’s determination for only
    manifest injustice.
    The invited error doctrine stands for the basic proposition that “[a]
    defendant may not complain on appeal of errors that he himself invited or
    provoked the district court to commit.” See United States v. Salazar, 
    751 F.3d 326
    , 332 (5th Cir. 2014). “Statements amounting to invited error are a species
    of waiver” and generally evince an “intent” by the speaker to convince “the
    district court to do [something that] it would not otherwise have done.” See
    United States v. Rodebaugh, 
    798 F.3d 1281
    , 1304 (10th Cir. 2015) (internal
    quotation marks and citations omitted). Compare United States v. Morales-
    Rodriguez, 
    788 F.3d 441
    , 443 n.3 (5th Cir. 2015) (holding that a defendant did
    not invite error as to his sentence even though he failed to object to it in the
    6
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    district court and even though he stated that his PSR was correct), with United
    States v. Roussel, 
    705 F.3d 184
    , 193 (5th Cir. 2013) (holding that a defendant
    invited error regarding the issuance of a Rule 404(b) jury instruction because
    he requested the introduction of the prior acts evidence necessitating issuance
    of the instruction). “Invited error imposes an even higher standard than does
    plain-error review: We will not reverse on the basis of invited error, absent
    manifest injustice.” 
    Salazar, 751 F.3d at 332
    .
    As stated above, the district court began its opinion by noting that the
    parties had agreed at the § 2255 hearing that the Texas aggravated robbery
    statute was divisible and that, thus, the modified categorical approach could
    be applied. A transcript of the hearing reads as follows:
    THE COURT: Now the parties agreed that the statute is divisible?
    THE GOVERNMENT: Yes, Your Honor.
    THE COURT [referring to defense counsel]: Do you agree with
    that?
    DEFENSE COUNSEL: The robbery – or the aggravated robbery
    statute?
    THE COURT: Both of them. Robbery and aggravated robbery.
    DEFENSE COUNSEL: Your honor, I looked through that last
    night and I was looking at the Mathis case. I think [the Texas
    aggravated robbery statute, by virtue of its incorporation of the
    Texas robbery statute,] would probably be divisible under Mathis.
    ...
    THE COURT: Okay. Government agree?
    THE GOVERNMENT: Yes, Your Honor.
    We do not construe defense counsel’s equivocal concession as inviting
    error. See United States v. Franklin, 
    838 F.3d 564
    , 567 n.1 (5th Cir. 2016) (“We
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    narrowly construe counsel’s statements in applying the invited error
    doctrine.”). Indeed,
    A defendant’s failure to object to a district court’s proposed jury
    instruction, or even the affirmative statement, “No, Your Honor,”
    in response to the court’s query “Any objection?”, is not the same
    as a defendant who proffers his or her own instruction, persuades
    the court to adopt it, and then later seeks to attack the sufficiency
    of that instruction [on appeal].
    United States v. Harris, 
    695 F.3d 1125
    , 1130 n.4 (10th Cir. 2012). Because
    Lerma did not invite any alleged divisibility error, we review the district court’s
    divisibility analysis de novo. See 
    Olvera, 775 F.3d at 729
    .
    III.
    A.
    The Texas aggravated robbery statute provides, in pertinent part:
    (a) A person commits [aggravated robbery in Texas] if he commits
    robbery as defined in [Texas Penal Code] Section 29.02, and
    he:
    (1) causes serious bodily injury to another;
    (2) uses or exhibits a deadly weapon; or
    (3) causes bodily injury to another person or threatens or
    places another person in fear of imminent bodily injury or
    death, if the other person is:
    (A) 65 years of age or older; or
    (B) a disabled person.
    (b) An offense under this section is a felony of the first degree.
    TEX. PENAL CODE § 29.03 (emphases added).
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    The Texas robbery statute, which is incorporated into the first paragraph
    of the aggravated robbery statute, provides the following:
    (a) A person commits [robbery in Texas] if, in the course of
    committing theft . . . and with intent to obtain or maintain
    control of the property, he:
    (1) Intentionally, knowingly, or recklessly causes bodily injury
    to another, or
    (2) Intentionally or knowingly threatens or places another in
    fear of imminent bodily injury or death.
    (b) An offense under this section is a felony of the second degree.
    TEX. PENAL CODE § 29.02(a).
    On its face, the Texas aggravated robbery statute requires that a
    defendant commit robbery and meet one of several other requirements to be
    convicted of aggravated robbery. The first paragraph of the statute is not
    alternatively phrased, but rather requires robbery plus something else to
    commit aggravated robbery. Specifically, a defendant may be convicted of
    aggravated robbery under § 29.03(a)(1) if he commits robbery and causes
    serious bodily injury to another. Both robbery and serious bodily injury are
    elements because both are required to obtain a conviction for aggravated
    robbery under § 29.03(a)(1). Thus, the aggravated robbery statute sets forth
    one crime under § 29.03(a)(1), requiring robbery and serious bodily injury. See
    Appendix, “Crime No. 1” under § 29.03(a)(1).
    Under § 29.03(a)(2), robbery is again an element as set forth in the first
    paragraph. The additional requirement is that the defendant “uses or exhibits
    a deadly weapon.”      § 29.03(a)(2) (emphasis added).       This provision is
    alternatively phrased, so the issue becomes whether the alternatives are
    elements of a crime under § 29.03(a)(2) or the means of satisfying a single
    element. See 
    Mathis, 136 S. Ct. at 2249
    , 2256. On the face of the statute, the
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    alternatives of “using” a deadly weapon or “exhibiting” a deadly weapon cannot
    be means because they are not listed as ways of satisfying a single element.
    Rather, they each are alternative elements under § 29.03(a)(2).            Thus,
    § 29.03(a)(2) sets forth two crimes: aggravated robbery in which the defendant
    commits robbery and uses a deadly weapon, and aggravated robbery in which
    the defendant commits robbery and exhibits a deadly weapon. See Appendix,
    “Crime No. 2” and “Crime No. 3” under § 29.03(a)(2).
    Finally, under § 29.03(a)(3), robbery is again an element as set forth in
    the first paragraph. The additional requirement in order to commit aggravated
    robbery under § 29.03(a)(3) is the status of the victim (“the other person”).
    Specifically, the victim of the robbery must be “65 years of age or older; or a
    disabled person.”    § 29.03(a)(3)(A) & (B).   This provision is alternatively
    phrased, so the issue again becomes whether the alternatives are elements or
    means of satisfying a single element.       On the face of the statute, the
    alternatives are listed as the means of satisfying the single element of the
    status of the victim under § 29.03(a)(3). Thus, § 29.03(a)(3) of the aggravated
    robbery statute sets forth one crime requiring robbery and the status of the
    victim. See Appendix, “Crime No. 4” under § 29.03(a)(3).
    Based on the language of the statute, and applying the definitions of
    “elements of a crime” and “means of an element” as set forth by the Supreme
    Court in Mathis, we conclude that the Texas aggravated robbery statute is
    divisible.
    Lerma submits, however, that Texas law provides otherwise. He asserts
    that Cooper v. State, 
    430 S.W.3d 426
    (Tex. Crim. App. 2014), establishes that
    the Texas aggravated robbery statute is indivisible. In Cooper, the Texas Court
    of Criminal Appeals held that two of the defendant’s five aggravated robbery
    convictions violated the double jeopardy clause of the Fifth Amendment. 
    See 430 S.W.3d at 427
    . However, Cooper did not interpret the Texas aggravated
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    robbery statute. Cooper simply held that a defendant cannot be convicted of
    robbing the same person twice at the same time – once by threat and once by
    force. Cooper did not address the question that we now face: whether the Texas
    aggravated robbery statute is a divisible statute, setting forth alternative
    elements and thereby defining multiple crimes. 4
    Because the Texas aggravated robbery statute is divisible, we proceed
    to apply the modified categorical approach.
    B.
    The modified categorical approach “permits a court to determine which
    statutory phrase was the basis for the conviction by consulting the trial record.”
    Johnson v. United States, 
    559 U.S. 133
    , 144 (2010) (Johnson II). The court
    may refer to the “charging documents, plea agreements, transcripts of plea
    colloquies, findings of fact and conclusions of law from a bench trial, and jury
    instructions and verdict forms.” 
    Id. (citations omitted).
    In this case, the record
    contains Lerma’s juvenile order of commitment wherein Lerma was “found to
    have engaged in delinquent conduct.” Specifically, Lerma was found to have:
    while in the course of committing theft of beer and money,
    hereinafter called “the property,” from [victim], with intent to
    obtain and maintain control of the property, using and exhibiting
    4   Contrary to Lerma’s assertions, the decisions from the Texas Court of Appeals in
    Woodard v. State, 
    294 S.W.3d 605
    (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d), and
    Burton v. State, 
    510 S.W.3d 232
    (Tex. App.—Fort Worth 2017, no pet.), are not helpful in the
    divisibility determination. The court in Woodard used the term “means” in a different way
    than the Mathis court. Specifically, the court concluded that the “aggravating factors [of
    § 29.03] are simply descriptions or means by which the underlying offense of robbery by
    causing bodily injury can be committed.” See 
    Woodard, 94 S.W.3d at 609
    . When the court
    used the word “means,” it did not do so in relation to satisfying a single element of a crime,
    as Mathis requires. Rather, the Woodard court appears to have used the word “means” to
    describe the various crimes set forth in the aggravated robbery statute. See, e.g., Appendix
    (setting forth various crimes constituting aggravated robbery under § 29.03). In Burton, the
    court held that “causing bodily injury or threatening the victim are different methods of
    committing the same 
    offense.” 510 S.W.3d at 232
    . It is unclear whether the court was
    referring to the elements of a crime, the means of satisfying a single element, or the crimes
    set forth by a statute under a Mathis analysis.
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    a deadly weapon, namely, a gun, knowingly and intentionally
    threaten and place [victim] in fear of imminent bodily injury or
    death . . . on or about February 11, 1979.
    The Order of Commitment further provides that Lerma was found to have:
    On or about February 17, 1979, while in the course of
    committing theft of beer and money, hereinafter called “the
    property,” from [victim], with intent to obtain and maintain
    control of the property, using and exhibiting a deadly weapon,
    namely, a gun, knowingly and intentionally threaten and place
    [victim] in fear of imminent bodily [injury] or death.
    The indictment charging Lerma with his first aggravated robbery as an
    adult alleged the following:
    On or about July 10, 1990, . . . [Lerma] did then and there
    while in the course of committing theft of property and with the
    intent to obtain and maintain control over the property,
    intentionally and knowingly threaten [victim] with and place her
    in fear of imminent bodily injury and death by using and exhibiting
    a deadly weapon, namely a firearm.
    Lerma’s subsequent judicial confession and stipulation tracked the exact
    language of the indictment.
    The indictment charging Lerma with his second aggravated robbery as
    an adult alleged the following:
    On or about March 4, 1991, . . . [Lerma] did then and there
    while in the course of committing theft of property and with the
    intent to obtain and maintain control over the property,
    intentionally and knowingly threaten [victim] with and place him
    in fear of imminent bodily injury and death by using and exhibiting
    a deadly weapon, namely a knife, which in the manner of its use
    and intended use was capable of causing death and serious bodily
    injury.
    Lerma’s subsequent judicial confession and stipulation tracked the exact
    language of the indictment.
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    Each of Lerma’s prior convictions involved his commission of a robbery
    (intentionally and knowingly threatening the victim with and placing the
    victim in fear of imminent bodily injury and death), and his using and
    exhibiting a deadly weapon.      These elements are the same elements of
    aggravated robbery under § 29.03(a)(2). See Appendix, “Crime No. 2” and
    “Crime No. 3” under § 29.03(a)(2).      Thus, under the modified categorical
    approach, we determine that Lerma’s prior convictions were based on
    § 29.03(a)(2) of the Texas aggravated robbery statute.       The only question
    remaining is whether aggravated robbery under § 29.03(a)(2) “has as an
    element the use, attempted use, or threatened use of physical force against the
    person of another” such that it qualifies as a “violent felony” under the force
    clause of the ACCA. See § 924(e)(2)(B)(i).
    The Supreme Court has instructed that the meaning of “physical force”
    in the ACCA’s force clause “is a question of federal law, not state law.”
    Johnson 
    II, 559 U.S. at 138
    . In Johnson II, the Court provided the meaning of
    “physical force” under the force clause of the ACCA. Specifically, the Court
    held that “’physical force’ means violent force—that is, force capable of causing
    physical pain or injury to another person.” 
    Id. at 140
    (citation omitted).
    There can be no question that a crime under Texas Penal Code
    § 29.03(a)(2), that is, threatening someone with imminent bodily injury or
    death, or placing someone in fear of such, while using or exhibiting a deadly
    weapon in the course of committing theft with intent to obtain or maintain
    control of the property, has as an element the threatened use of physical force
    against the person of another. See United States v. Ovalle-Chun, 
    815 F.3d 222
    ,
    227 (5th Cir. 2016) (holding that “a person who intends to, and does, place
    another in fear of imminent physical injury by displaying what appears to be
    a deadly weapon has communicated an intent to inflict physical harm and,
    thus, threatened the use of force”). Therefore, Lerma’s prior convictions for
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    aggravated robbery under Texas Penal Code § 29.03(a)(2) qualify as “violent
    felonies” under the force clause of the ACCA.
    Lerma argues, however, that under Texas law, the defendant’s use or
    exhibition of the deadly weapon need not play any part in accomplishing the
    threat or placing the victim in fear, as shown by the court’s decision in Boston
    v. State, 
    410 S.W.3d 321
    , 326-27 (Tex. Crim. App. 2013). In Boston, the victim
    of the aggravated robbery testified that “she never saw the firearm” used by
    the offender. However, a video of the crime showed that the offender “briefly
    pointed [the firearm] at the [victim], and set it on the counter pointed at the
    [victim].” 
    Boston, 410 S.W.3d at 323
    . Under such circumstances, the crime of
    aggravated robbery under § 29.03(a)(2) would still qualify as a violent felony
    under the force clause, for there can be no question that pointing a gun at
    someone is an attempt to use physical force against the person of another.
    Thus, even under the scenario presented in Boston, the crime of aggravated
    robbery under § 29.03(a)(2) “has as an element the use, attempted use, or
    threatened use of physical force against the person of another.”             See
    § 924(e)(2)(B)(i).
    Based on the foregoing, Lerma’s prior convictions for aggravated robbery
    under Texas Penal Code § 29.03(a)(2) qualify as violent felonies under the force
    clause of the ACCA. Consequently, Lerma is not entitled to any relief under
    28 U.S.C. § 2255. The district court’s judgment is AFFIRMED.
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    APPENDIX
    Aggravated      Crime No. 1          Robbery
    Robbery,        § 29.03(a)(1)
    Texas Penal
    Serious Bodily
    Code § 29.03                         Injury
    Crime No. 2          Robbery
    § 29.03(a)(2)
    Uses a Deadly
    Weapon
    Crime No. 3          Robbery
    § 29.03(a)(2)
    Exhibits a
    Deadly Weapon
    Crime No. 4          Robbery
    §29.03(a)(3)
    Status of the     65 or Older OR
    Victim            Disabled
    15