from the United States District Court for the Northern
District of Texas
WIENER, DENNIS, and HAYNES, Circuit Judges.
L. DENNIS, Circuit Judge.
Thomas Massey pleaded guilty to knowingly possessing a
firearm after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). Massey's presentence
report (PSR) determined that he had three prior convictions
for violent felonies or serious drug offenses. The Government
sought an enhanced penalty under the Armed Career Criminal
Act (ACCA), which provides that a person who violates §
922(g)(1) and who "has three previous convictions"
for "a violent felony or a serious drug offense . . .
committed on occasions different from one another" shall
be imprisoned for a minimum of fifteen years. §
924(e)(1). At the sentencing hearing, Massey did not dispute
that his two drug convictions were "serious drug
offenses" under the ACCA, but he objected to counting
his Texas felony conviction as a "violent felony."
He therefore argued that the normal ten-year maximum sentence
for a violation of § 922(g)(1) applied to his
conviction. See § 924(a)(2).
felony conviction was for violation of section 38.14 of the
Texas Penal Code, which, in pertinent part, provides:
A person commits an offense if the person intentionally or
knowingly and with force takes or attempts to take from a
peace officer, federal special investigator, employee or
official of a correctional facility, parole officer,
community supervision and corrections department officer, or
commissioned security officer the officer's,
investigator's, employee's, or official's
firearm, nightstick, stun gun, or personal protection
chemical dispensing device with the intention of harming the
officer, investigator, employee, or official or a third
the ACCA, "violent felony" is defined in relevant
part as "any crime punishable by imprisonment for a term
exceeding one year" that "has as an element the
use, attempted use, or threatened use of physical force
against the person of another." § 924(e)(2)(B)(i).
The district court concluded that section 38.14 contained
such an element, and accordingly sentenced Massey under the
ACCA to a prison term of fifteen years and eight months.
Johnson v. United States, 559 U.S. 133, 140 (2014),
the Supreme Court held that "physical force" in the
statutory definition of "violent felony" means
"violent force-that is, force capable of
causing physical pain or injury to another person." On
appeal, Massey argues that a violation of section 38.14 of
the Texas Penal Code is not a "violent felony"
under the ACCA because, he asserts, under Texas law the
"force" required for its commission is less than
that required by Johnson. We review the district court's
determination that a prior offense constitutes a violent
felony under the ACCA de novo. United States v.
Fuller, 453 F.3d 274, 278 (5th Cir. 2006).
support of his position, Massey points to Dobbs v.
State, 434 S.W.3d 166 (Tex. Crim. App. 2014), in which
the Texas Court of Criminal Appeals (TCCA) held that the
defendant, who threatened to shoot himself as officers
approached him, could not reasonably be said to have used
"force against a peace officer or another" within
the meaning of the resisting arrest statute, section 38.03 of
the Texas Penal Code. In so holding, the TCCA considered a
dictionary definition of "force":
"'violence, compulsion, or constraint exerted upon
or against a person or thing.'" Id. at 171
(quoting Merriam-Webster's Collegiate Dictionary 455
(10th ed. 1996)); see also Finley v. State, 484
S.W.3d 926, 927-28 (Tex. Crim. App. 2016) (citing and
applying the Dobbs definition of "force"
to affirm a defendant's conviction of resisting arrest
under section 38.03). Relying on this definition, Massey
argues that "'[f]orce' under the Texas Penal
Code encompasses any amount of force . . . not just force
capable of causing physical pain or injury."
argument is not persuasive for several reasons. First, the
TCCA's decisions in Dobbs and in Finley
did not definitively calibrate the amount of force required
for a violation of resisting arrest under section
38.03.The decisions in Dobbs
and Finley turned on whether the defendant's
actions were "against" a police officer, rather
than on whether his actions were sufficiently forceful. 434
S.W.3d at 173; 484 S.W.3d at 928. It is not clear from either
decision that "force" defined as "violence,
compulsion, or constraint exerted upon or against a person or
thing" is less than physical force as defined by
Johnson. And, significantly, there is no indication
in either decision that the definition of force was intended
to apply outside of section 38.03.
even if, as Massey argues, section 38.14 could be violated
with the use of less than "physical force, " that
would not rule out the possibility that the offense "has
as an element the . . . threatened use of physical
force against the person of another." See
§ 924(e)(2)(B)(i) (emphasis added). The Government
argues that it does. In United States v.
Garcia-Figueroa, 753 F.3d 179, 186 (5th Cir. 2014), we
held that the Florida offense of "without authorization,
tak[ing] a firearm from a law enforcement officer lawfully
engaged in law enforcement duties"-even if it does not
necessarily involve the use of "physical
force"-"create[s] a sufficient 'threatened use
of [physical] force' to qualify" as a crime that has
as an element the use, attempted use, or threatened use of
physical force" against the person of another. The
Government asserts that the same logic should apply in the
present case. Massey does not respond to the Government's
contention and fails to argue that section 38.14 is
distinguishable from the Florida statute at issue in
Garcia-Figueroa. We therefore conclude that section
38.14 has as an element the "threatened use of
force" and qualifies as a violent felony under the
district court's judgment is AFFIRMED.