Appeal from the United States District Court for the Eastern District of Texas.
For United States of America, Plaintiff - Appellee: Randall Al Blake, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Texas, Sherman, TX.
For Bennie D. Emeary, Jr., Defendant - Appellant: Brittany Carroll Lacayo, Houston, TX.
JAMES L. DENNIS, Circuit Judge.
" The Supreme Court has recognized that courts of appeals have an inherent power to recall their mandates." Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 549, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)). " Our authority to
recall our mandate is clear." United States v. Tolliver, 116 F.3d 120, 123 (5th Cir. 1997). " Nonetheless, the Supreme Court has instructed that we may exercise that power only upon a showing of 'extraordinary circumstances.'" United States v. Fraser, 407 F.3d 9, 10 (1st Cir. 2005) (citing Calderon, 523 U.S. at 550). In this circuit, the court's mandate " will not be recalled except to prevent injustice." 5th Cir. R. 41.2. Under these standards, I conclude that the mandate in this criminal appeal of Bennie D. Emeary, Jr. shall be recalled. As I will explain, Emeary's appointed attorney and this court both committed plain error in reviewing Emeary's sentence and failing to notice that he was condemned to five more years of incarceration than the law allows. In my view, this plain error can and should be corrected.
On February 9, 2005, Emeary was indicted for illegally possessing firearms after having been convicted of a felony, which is generally punishable by a maximum term of ten years of imprisonment. 18 U.S.C. § 924(a)(2). However, if the defendant has previously been convicted of three " violent felonies" within the meaning of the Armed Career Criminal Act (" ACCA" ), then the minimum term of imprisonment is fifteen years. § 924(e)(1). Under the ACCA, the definition of " violent felony" includes, in pertinent part, crimes that " [are] burglary, arson, or extortion, involve use of explosives, or otherwise involve conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). Emeary's indictment alleged that he had been convicted of three prior " violent felonies," including, pertinent here, a 1998 conviction in Texas for " burglary of a building." The bill of information for the 1998 conviction reveals that it was under § 30.02(a)(3) of the Texas Penal Code, for " enter[ing] a building" " without the effective consent of the owner" and " commit[ing] or attempt[ing] to commit a felony or theft." 
On May 25, 2005, pursuant to a plea agreement with the government, Emeary pleaded guilty to the illegal-possession-of-firearms charge. The district court sentenced Emeary on December 7, 2005. The court classified Emeary as subject to the ACCA's fifteen-year minimum sentence because, including the 1998 conviction under Texas Penal Code § 30.02(a)(3), he had been convicted of three " violent felonies." The court sentenced Emeary to fifteen years of incarceration.
Emeary filed a notice of appeal on May 13, 2009. On September 14, 2009, Emeary's appointed attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), representing that he had reviewed the case and concluded that there were no nonfrivolous arguments to present on Emeary's behalf. (In fact, he went further and represented that there was " no reversible error in this case." Anders Br., at 24.) He therefore requested the court's leave to withdraw as Emeary's attorney. Under Anders, 386 U.S. at 744, that
triggered this court's obligation to conduct " a full examination of all the proceedings [and] to decide whether the case is wholly frivolous." On February 12, 2010, we concluded that there were no nonfrivolous issues presented and dismissed the appeal. United States v. Emeary, 365 F.Appx. 552, 553 (5th Cir. 2010) (unpublished). The court's mandate issued on March 8, 2010. Both Emeary's attorney and we made a serious omission, as I will explain.
Neither Emeary's attorney in his Anders brief nor this court in our opinion dismissing Emeary's appeal referenced United States v. Constante, 544 F.3d 584 (5th Cir. 2008), which issued on October 6, 2008 and was thus established circuit precedent at the time of Emeary's appeal. In Constante, 544 F.3d at 587, this court held that convictions under Texas Penal Code § 30.02(a)(3) do not constitute " violent felony" convictions under the ACCA. Emeary, of course, was sentenced to fifteen years of ...