from the United States District Court for the Northern
District of Texas
PETITION FOR PANEL REHEARING
REAVLEY, ELROD, and GRAVES, Circuit Judges.
REAVLEY, Circuit Judge:
light of Mathis v. United States, 136 S.Ct. 2243
(2016), and United States v. Hinkle, 832 F.3d 569
(5th Cir. 2016), we granted defendant Dantana Tanksley's
motion for panel rehearing to decide whether United
States v. Ford, 509 F.3d 714 (5th Cir. 2007), still
represents the law. Ford held that a conviction for
possession with intent to deliver a controlled substance
under section 481.112(a) of the Texas Health and Safety Code
("Section 481.112(a)") qualifies as a
"controlled substance offense" under the United
States Sentencing Commission Guidelines Manual (the
"Guidelines"). On rehearing, our prior panel
opinion is WITHDRAWN, and this opinion is SUBSTITUTED
2015, Tanksley pleaded guilty to violating 18 U.S.C. §
922(g), which prohibits convicted felons from possessing
firearms. At sentencing, the district court found that a
prior conviction under Section 481.112(a) for possession with
intent to deliver a controlled substance constituted a
"controlled substance offense" within the meaning
of the Guidelines, § 4B1.1. Tanksley objected to this
particular enhancement but conceded his objection was
foreclosed by Ford. Tanksley then appealed, again
conceding that Ford foreclosed this argument.
Indeed, both of the arguments Tanksley made on appeal-he also
disputed the constitutionality of 18 U.S.C. §
922(g)-were admittedly foreclosed, and we granted the
government's unopposed motion for summary affirmance.
See United States v. Tanksley, Case No. 15-11078,
2016 WL 4375058 (5th Cir. Aug. 16, 2016). Shortly before we
affirmed Tanksley's conviction and sentence, the Supreme
Court issued Mathis. Based on that decision and this
Court's decision in Hinkle, Tanksley moved for
panel rehearing. We granted the motion.
is relevant to the district court's determination that
the Section 481.112(a) conviction represented a controlled
substance offense under the Guidelines. "In determining
if a prior conviction is for an offense enumerated or defined
in a Guidelines provision, we generally apply the categorical
approach and look to the elements of the offense enumerated
or defined by the Guideline section and compare those
elements to the elements of the prior offense for which the
defendant was convicted." United States v.
Howell, 838 F.3d 489, 494 (5th Cir. 2016). Some criminal
statutes, however, are "divisible, " meaning a
single statute "define[s] multiple crimes."
Mathis, 136 S.Ct. at 2249. The Supreme Court has
"approved the 'modified categorical approach'
for use with statutes having multiple alternative elements,
" permitting courts to examine "a 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. With the precise crime thus identified, the
court can then apply the categorical approach, asking whether
that precise crime matches the Guidelines offense at issue.
criminal statutes appear divisible but are not. These
statutes, rather than providing alternative elements, instead
list "various factual means of committing a single
element." Id. In Mathis, the Supreme
Court held that the modified categorical approach is not
appropriate for this species of criminal statute.
Id. at 2257. More importantly here, it also
"provided helpful guidance for determining whether a
predicate statute of conviction is divisible."
United States v. Uribe, 838 F.3d 667, 670 (5th Cir.
2016). This factual and legal backgrounded concluded, we turn
to our analysis.
been asked to find an otherwise controlling precedent
obsolete. While the defendant argues that, together,
Mathis and Hinkle put Ford into
doubt, it is appropriate to focus our inquiry on
Mathis. This is because, under the rule of
orderliness, "one panel of this Court may not overrule
another." United States v. Segura, 747 F.3d
323, 328 (5th Cir. 2014) (quoting Cent. Pines Land Co. v.
United States, 274 F.3d 881, 893 (5th Cir. 2001)). As a
corollary, "to the extent that a more recent case
contradicts an older case, the newer language has no
effect." Arnold v. U.S. Dep't of Interior,
213 F.3d 193, 196 n.4 (5th Cir. 2000). If, however, a Supreme
Court decision "expressly or implicitly" overrules
one of our precedents, we have the authority and obligation
to declare and implement this change in the law. See
United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir.
1976). "Such an intervening change in the law must be
unequivocal, not a mere 'hint' of how the Court might
rule in the future." United States v. Alcantar,
733 F.3d 143, 146 (5th Cir. 2013). Accordingly, only
Mathis can inter Ford, and we ignore
Hinkle while asking whether the Supreme Court
unequivocally abrogated Ford.
Section 481.112(a), "a person commits an offense if the
person knowingly manufactures, delivers, or possesses with
intent to deliver a controlled substance" as defined
elsewhere in the Code. Ford's feature holding
was that a conviction for "'possession with an
intent to deliver' a controlled substance under section
481.112(a) . . . can be used as a basis for a sentence
enhancement as a 'controlled substance offense'
under" the Guidelines. 509 F.3d at 715. That holding, if
still applicable, controls this case because the defendant
here was also convicted of possession with intent to deliver
a controlled substance.
important for our purposes, however, is Ford's
necessary predicate holding-that Section 481.112(a) is a
divisible statute such that (1) use of the modified
categorical approach is appropriate and (2) "possession
with intent to deliver" a controlled substance is a
distinct crime from mere delivery of that same controlled
substance. This holding was crucial because, in United
States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (per
curiam), we had already held that a conviction for
delivery of a controlled substance under that same
Section 481.112(a) was not a "drug trafficking
offense" under the Guidelines. There being no
substantive difference between a "controlled substance
offense" and a "drug trafficking offense"
under the Guidelines, the holding in Gonzales would
necessarily control the outcome in Ford if Section
481.112(a)'s reference to manufacture, delivery, and
possession with intent to deliver merely set forth three ways
to commit one crime rather than three separate crimes.
reconcile Gonzales, Ford explained that the
"significant distinction" was that defendant Jason
Jermaine Ford been convicted "for possession with the
intent to deliver rather than just delivery or
transportation." Ford, 509 F.3d at 717. In
other words, possession with intent to deliver and actual (or
mere) delivery are two separate crimes-one that qualifies as
a controlled substance offense, one that does not. We have
subsequently recognized and maintained this line drawn in
Ford. See Vasquez-Martinez v. Holder, 564
F.3d 712, 718-19 (5th Cir. 2009). And, prior to
Mathis, Section 481.112(a)'s status as a