Fifth Circuit Clarifies Effect of 2023 Guidelines Amendment: Texas Robbery Still a “Crime of Violence”

Introduction

United States v. Wickware, No. 24-10519 (5th Cir. July 22 2025), addresses how a November 2023 amendment to the United States Sentencing Guidelines (U.S.S.G.) influences the classification of state robbery convictions as “crimes of violence.” The appellant, Darrell Wickware, had previously been convicted of Texas robbery (Tex. Penal Code § 29.02) and later pled guilty to unlawful possession of a firearm as a felon. At sentencing for the firearm offense, enhanced penalties turned on whether his earlier robbery conviction constituted a “crime of violence” under U.S.S.G. § 4B1.2.

The district court, bound by existing Fifth Circuit precedent, ruled that it did. Wickware appealed, arguing that the 2023 guideline amendment supplied a new, narrower definition of “robbery,” thereby undermining prior authority. The central question for the Court of Appeals was whether the amended guideline displaced—or altered—the conclusion that Texas robbery is categorically a crime of violence.

Summary of the Judgment

The Fifth Circuit (Judges Stewart, Clement, and Willett, per curiam) affirmed the sentence. Key holdings include:

• Although a Sentencing Guidelines textual amendment can, in principle, overrule prior circuit precedent, the 2023 amendment does not create a mismatch between Texas robbery and generic robbery under § 4B1.2(e)(3).
• The phrases “in the course of” (Texas statute) and “by means of” (Guidelines) differ linguistically but not substantively; both require force or threat surrounding the taking.
• The Guidelines definition is at least as broad as, if not broader than, Texas robbery—hence the state statute is not overinclusive and remains a crime of violence for guideline purposes.

Analysis

1. Precedents Cited

• United States v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006) – original panel deeming § 29.02 robbery a crime of violence.
• United States v. Adair, 16 F.4th 469 (5th Cir. 2021) – reaffirmed Santiesteban-Hernandez under the pre-2023 guideline text.
• United States v. Garcia, No. 23-40717, 2025 WL 545711 (5th Cir. Feb. 19 2025) (unpublished) – recognized the 2023 textual amendment but still found Texas robbery a crime of violence.
• United States v. Traxler, 764 F.3d 486 (5th Cir. 2014) – “rule of orderliness”: one panel cannot overrule another absent intervening authority.
• United States v. Longoria, 958 F.3d 372 (5th Cir. 2020) – commentary changes alone do not override circuit precedent; text amendments are different.
• Supreme Court Authorities: Taylor v. United States, 495 U.S. 575 (1990) (generic-offense methodology); Mathis v. United States, 579 U.S. 500 (2016) (categorical approach); Elonis v. United States, 575 U.S. 723 (2015) (mens rea default rule).

Collectively, these cases supplied both the framework (categorical approach, rule of orderliness) and earlier substantive conclusions (Texas robbery = violent) that Wickware sought to overturn.

2. Legal Reasoning

The panel’s reasoning unfolded in two stages:

1. Effect of the Intervening Amendment
   • The 2023 amendment added an explicit definition of “robbery” to § 4B1.2(e)(3). Because this change lies in the guideline text, it could theoretically supersede contradicting circuit precedent.
   • However, a new definition can only overrule prior precedent if it is inconsistent with that precedent. Here, the Fifth Circuit found no inconsistency.
2. Categorical Comparison
   • Step 1 – Read the Guideline: Robbery is the “unlawful taking ... by means of actual or threatened force, or violence, or fear of injury, immediate or future.”
   • Step 2 – Line-up the Elements: Texas robbery requires, “in the course of theft,” either (a) intentionally/knowingly/recklessly causing bodily injury, or (b) intentionally/knowingly threatening or placing another in fear of imminent injury or death.
   • Step 3 – Compare Breadth:
     • Temporal Language: “in the course of” versus “by means of” – deemed only a “minor variation in terminology” (quoting Taylor).
     • Objects of Force: Guidelines cover threats to person or property; Texas covers only threats to a person. Therefore, the federal definition is broader, not narrower.
     • Mens Rea: Texas robbery includes “recklessly” (for bodily injury variant); the guideline lacks an explicit mens rea, but default principles (see Elonis) imply at least knowledge. The Fifth Circuit found the argument that this creates a mismatch forfeited because it was not squarely briefed.
   • Result: Because the state offense’s elements are the same as or narrower than the generic definition, a Texas robbery conviction categorically qualifies as a crime of violence.

3. Impact

The Wickware opinion sets three notable precedential guideposts:

1. Textual vs. Commentary Changes – The Fifth Circuit draws a sharp line: a change to guideline commentary rarely disturbs precedent, but a textual amendment may. Still, displacement occurs only upon irreconcilable conflict.
2. Generic Robbery Breadth – By deeming the new Guideline definition broader than Texas robbery, the court effectively shields numerous state robbery statutes from categorical mismatch arguments predicated on the 2023 language.
3. Future Litigation on Mens Rea – Although the panel found mens rea arguments forfeited, it hinted that future appellants could raise them. Thus, Wickware leaves open a narrow path for challenging statutes with purely reckless elements if litigants properly preserve the point.

Expect prosecutors and probation offices within the Fifth Circuit to continue treating Texas robbery—and likely analogous statutes in Louisiana and Mississippi—as crimes of violence. Defense counsel, however, may refine categorical challenges on mens rea grounds or target non-robbery predicates where the 2023 amendment narrowed definitions (e.g., certain extortion or kidnapping provisions).

Complex Concepts Simplified

• Crime of Violence (Guidelines) – An offense that, by definition, warrants enhanced sentencing for certain federal crimes. Listed offenses (e.g., robbery) automatically qualify when the prior conviction’s elements match or are narrower than the guideline definition.
• Categorical Approach – Courts look only at statutory elements, not the facts of a specific case. If any mode of commission under the statute lacks a required generic element, the statute fails the categorical test.
• Generic Offense – A distilled, nationwide definition of a crime (here, “robbery”) that serves as the benchmark in federal sentencing and immigration contexts.
• Rule of Orderliness – One Fifth-Circuit panel cannot overrule another unless an intervening Supreme Court, en banc, or statutory change dictates a different result.
• Text vs. Commentary – The Guidelines Manual has binding text and non-binding but influential commentary. Amendments to the text carry greater authority.

Conclusion

United States v. Wickware confirms that the 2023 Sentencing Guidelines amendment—though an “intervening change in law”—does not, by itself, disqualify Texas robbery as a crime of violence. The Fifth Circuit’s analysis underscores (1) the primacy of elemental comparisons in categorical jurisprudence, (2) the limited occasions when textual guideline changes destabilize settled precedent, and (3) the continuing vitality of earlier Fifth-Circuit robbery rulings despite the new guideline definition. For practitioners, the decision provides a roadmap: challenges to prior convictions after guideline amendments must demonstrate a genuine elemental mismatch, not merely semantic variation. For the broader legal landscape, Wickware illustrates the judiciary’s cautious interplay with Sentencing Commission revisions—balancing deference to updated texts against fidelity to the categorical framework.