Case: 22-10253     Document: 00516907312         Page: 1     Date Filed: 09/25/2023




           United States Court of Appeals
                for the Fifth Circuit
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                  ____________                                 FILED
                                                                       September 25, 2023
                                    No. 22-10253                          Lyle W. Cayce
                                  ____________                                 Clerk

   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Dylan Gregory Kerstetter,

                                           Defendant—Appellant.
                  ______________________________

                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:20-CR-35-1
                  ______________________________

   Before Smith, Southwick, and Higginson, Circuit Judges.
   Per Curiam:
          Dylan Gregory Kerstetter pled guilty to possession of a firearm by a
   felon, in violation of 

(g)(1). On appeal, he argues that a
   sentencing enhancement that requires certain prior convictions be for
   offenses committed on different occasions could not be applied unless the
   facts supporting it were charged in the indictment and admitted by the
   accused or proved to a jury. He also argues that his prior convictions did not
   qualify for the enhancement.
          We AFFIRM.
Case: 22-10253      Document: 00516907312           Page: 2     Date Filed: 09/25/2023




                                     No. 22-10253


                 Factual and Procedural Background
          In 2019, Dylan Kerstetter was stopped by police in Dallas, Texas,
   because his vehicle allegedly had false license plates. One thing led to
   another. First, an officer saw a bag of suspected methamphetamine on the
   floorboard of the car. A later search discovered more illegal drugs. Finally,
   officers found two firearms, one in the car’s console and the other in a
   backpack sitting on the back seat.
          In January 2020, a federal grand jury indicted Kerstetter for being a
   felon in possession of a firearm, violating 

(g)(1) and
   924(a)(2). Later that year, Kerstetter stipulated that he was guilty of being a
   felon in possession. In a footnote in the stipulation, he acknowledged that
   current law would allow his sentence to be enhanced due to prior felonies,
   but he argued that this law denied him due process because the facts relevant
   to the enhancement needed to be in the indictment and then proven beyond
   a reasonable doubt.
          In February 2021, Kerstetter pled guilty. His counsel challenged some
   of the presentence report’s recommendations. The parties dispute here
   whether he sufficiently presented his due process argument in district court
   by referring to it in a footnote in the just-mentioned stipulation, a dispute that
   affects the standard of review. We will discuss that later.
          The district court imposed a sentence of 190 months of imprisonment.
   This sentence reflected the court’s application of the sentencing
   enhancement under the Armed Career Criminal Act (“ACCA”), which
   applies when a Section 922(g) offender has three prior convictions for
   “violent felon[ies]” or “serious drug offense[s]” that were “committed on
   occasions different from one another.” 

(e)(1).
          Kerstetter timely appealed.




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Case: 22-10253      Document: 00516907312           Page: 3     Date Filed: 09/25/2023




                                     No. 22-10253


                                  DISCUSSION
          Each of Kerstetter’s arguments challenges the district court’s
   decision to sentence him as an armed career criminal under Section 924(e).
   The district court had to find that Kerstetter had the proper number of prior
   convictions for the proper category of crimes and find that they were
   committed separately from each other. § 924(e).
          Kerstetter does not dispute the existence of the following convictions,
   all of which were identified in his presentence report: (1) 1993 guilty-plea
   conviction for unlawful delivery of less than 28 grams of cocaine; (2) June
   2008 guilty-plea conviction for burglary of a building; (3) August 2008 guilty-
   plea conviction for burglary of a building; and (4) 2013 guilty-plea conviction
   for delivery of less than one gram of methamphetamine.
          This court reviews a preserved legal challenge to an ACCA-enhanced
   sentence de novo. United States v. White, 

 (5th Cir. 2006).
   However, unpreserved challenges to the application of the ACCA are
   reviewed only for plain error. United States v. Davis, 

 (5th
   Cir. 2007).
          1. Need for prior offenses to be charged in indictment and proven to jury
          Kerstetter argues that the ACCA enhancement violated his
   constitutional rights because the facts establishing that he committed his
   previous qualifying offenses on different occasions were not charged in the
   indictment nor were they admitted by him or proved to a jury. We have
   mentioned already that the Government argues that this issue should be
   reviewed only for plain error, as Kerstetter presented the issue in district
   court only by discussing it in a footnote in his factual resume. We need not
   address the sufficiency of that presentation, as this court has recently and
   definitively resolved the issue being raised.




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Case: 22-10253        Document: 00516907312           Page: 4    Date Filed: 09/25/2023




                                       No. 22-10253


          The argument that the indictment must allege, and evidence at trial
   must prove, the facts of the commission of qualifying offenses on different
   occasions has long been rejected by this court. See Davis, 487 F.3d at 287–
   88; see also White, 

. What is new, according to Kerstetter, was
   the Supreme Court’s decision in Wooden v. United States, 

   (2022). There, the Court specifically declined to address whether “a jury,
   rather than a judge, [must] resolve whether prior crimes occurred on a single
   occasion.” 

 at 1068 n.3.
          To end the argument for now in this court, a recent decision held that
   Wooden is “not directly on point” to this issue and does not “alter the binding
   nature” of Davis and White. United States v. Valencia, 

   (5th Cir. 2023) (quoting United States v. Traxler, 

 (5th Cir.
   2014)). Our prior caselaw continues in full force, and we reject Kerstetter’s
   argument.
          2. Need for prior convictions to be violent felonies
          In his other two issues, Kerstetter argues that the district court erred
   in applying the ACCA enhancement because his prior convictions were not
   violent felonies or serious drug offenses for purposes of Section 924(e). We
   review these issues de novo. See United States v. Prentice, 

   (5th Cir. 2020).
          Two of Kerstetter’s prior convictions were for the Texas offense of
   burglary of a building. It has been settled that convictions for Texas burglary
   qualify as violent felonies under the ACCA. 

; United States v.
   Herrold, 

 (5th Cir. 2019) (en banc). The test we have applied
   is that a defendant needs to show “a realistic probability, not a theoretical
   possibility, that the State would apply its statute to conduct that falls outside
   the generic definition of the crime.” Herrold, 

 (quoting
   Gonzales v. Duenas-Alvarez, 

 (2007)).




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Case: 22-10253     Document: 00516907312           Page: 5    Date Filed: 09/25/2023




                                    No. 22-10253


          Yet again, though, Kerstetter argues that a recent Supreme Court
   decision has abrogated our existing law. See United States v. Taylor, 

 (2022). Yet again, another precedential opinion of this court has
   applied our prior caselaw after the relevant Supreme Court decision was
   issued. See Ponce v. Garland, 

 (5th Cir. 2023).
          It is true that the Ponce court did not discuss Taylor. That makes sense
   because in Taylor, the Court compared two federal statutes and analyzed
   whether the elements of one aligned with the elements of the other. Taylor,
   142 S. Ct. at 2018–19. The Court distinguished Duenas-Alvarez, first by
   saying that the federalism concerns involved when comparing state offenses
   with federal sentencing enhancements made it reasonable “to consult how a
   state court would interpret its own State’s law.” Id. at 2025. “Second, in
   Duenas-Alvarez the elements of the relevant state and federal offenses clearly
   overlapped and the only question the Court faced was whether state courts
   also ‘appl[ied] the statute in [a] special (nongeneric) manner.’” Id. (quoting
   Duenas-Alvarez, 

) (emphasis omitted). The Court closed with
   stating that “nothing in Duenas-Alvarez suggests otherwise,” i.e., suggests
   that an opinion discussing how to compare state and federal statutes affects
   how to compare two federal statutes. 

 We reverse the point being made
   and hold that nothing in Taylor affects how to compare a state statute of
   conviction with a federal enhancement.
          We turn now to Kerstetter’s two prior convictions for delivery of a
   controlled substance under Texas Health and Safety Code § 481.112(a).
   Though we have long held that a Texas conviction for delivery of a controlled
   substance is a serious drug offense for purposes of an ACCA enhancement,
   United States v. Cain, 

, 562–63 (5th Cir. 2017); United States v.
   Vickers, 

 (5th Cir. 2008), Kerstetter nevertheless argues
   that, in two respects, Section 481.112(a) sweeps too broadly to be a serious
   drug offense as defined at 

(e)(2)(A)(ii).



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Case: 22-10253      Document: 00516907312           Page: 6     Date Filed: 09/25/2023




                                     No. 22-10253


           First, Kerstetter contends that Section 481.112(a) is overbroad
   because the delivery of a controlled substance includes an offer to sell,
   meaning a person can be convicted for a fraudulent offer to sell. He maintains
   that the Supreme Court in Shular v. United States, 

 (2020),
   recently interpreted the reach of Section 924(e)(2)(A)(ii) much more
   narrowly than this court did in Vickers. However, in United States v. Clark,
   

, 893 (5th Cir. 2022), we rejected the argument Kerstetter makes
   here.
           Second, Kerstetter maintains that Section 481.112(a) is overbroad
   because the list of substances it covers includes at least one that is not covered
   by the Controlled Substances Act. See TEX. HEALTH & SAFETY CODE
   § 481.102. We have recognized in the immigration context that Section
   481.102 sweeps more broadly than its federal counterpart by defining the
   term cocaine to include the position isomers of cocaine. Alexis v. Barr, 

, 726–27 (5th Cir. 2020). Even so, to avoid the ACCA enhancement,
   Kerstetter had to show “a realistic probability . . . that the State would apply
   its statute to conduct that falls outside the generic definition of a crime.”
   Duenas-Alvarez, 

; Herrold, 

. Kerstetter did not
   meet that test because he did not identify any actual cases where Texas
   brought charges against someone under Section 481.112(a) for delivery of
   position isomers of cocaine.
           AFFIRMED.




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