Post-Floyd Indivisibility of Texas Robbery Eliminates Garrett Harmlessness for Johnson ACCA Residual-Clause Errors

I. Introduction

In United States v. Senegal (5th Cir. Aug. 31, 2026) (not designated for publication), the Fifth Circuit revisited—on rehearing after recalling its mandate—whether Keelon Jmar Senegal’s Armed Career Criminal Act (“ACCA”) enhancements on two felon-in-possession counts were unconstitutional under Johnson v. United States, 576 U.S. 591 (2015).

Senegal was convicted in 2007 on eight counts arising from a bank robbery and related witness tampering, receiving two consecutive life sentences on firearm counts (Counts SS3 and SS7) plus multiple concurrent terms, including 360-month sentences on two felon-in-possession counts (Counts SS4 and SS8) enhanced under ACCA. The ACCA enhancement rested on three predicates: two Texas robbery convictions and a cocaine-with-intent-to-deliver conviction.

The central issues on this second pass were: (1) whether the 2008 sentencing court more likely than not relied on ACCA’s now-invalid residual clause; (2) whether any Johnson error was harmless because Texas robbery qualified under ACCA’s elements clause; and (3) what remedial doctrines (concurrent sentence, procedural default, sentencing package) should shape the scope of relief.

II. Summary of the Opinion

The panel withdraws its prior 2022 opinion (reported at 2022 WL 4594608) and holds:

  • Senegal again carries his burden to show it is “more likely than not” that the district court relied on ACCA’s residual clause, consistent with the legal landscape at the time of sentencing.
  • The prior harmless-error holding—based on United States v. Garrett, 24 F.4th 485 (5th Cir. 2022)—no longer holds, because United States v. Rose, 127 F.4th 619 (5th Cir. 2025), recognized that Floyd v. State, 714 S.W.3d 9 (Tex. Crim. App. 2024), “unequivocally abrogated” Garrett by clarifying Texas robbery is not divisible between robbery-by-injury and robbery-by-threat for jury-unanimity purposes.
  • The court declines to apply (a) the concurrent sentence doctrine, (b) procedural default (raised belatedly by the Government), and (c) the sentencing package doctrine (to expand resentencing to unaffected counts).
  • The court therefore VACATES the sentences on Counts SS4 and SS8 and REMANDS for resentencing on only those counts.

Judge Willett dissents solely on procedural default, arguing Fifth Circuit precedent counsels reaching the defense and that the claim is barred.

III. Analysis

A. Precedents Cited (and How They Drive the Result)

1. The ACCA framework and the constitutional pivot

  • Johnson v. United States, 576 U.S. 591 (2015): Invalidated ACCA’s residual clause as unconstitutionally vague. This is the substantive hook for Senegal’s collateral attack.
  • Welch v. United States, 578 U.S. 120 (2016): Made Johnson retroactive on collateral review, permitting relief under 28 U.S.C. § 2255 where the enhancement depended on the residual clause.

2. Determining residual-clause reliance at the time of sentencing

  • United States v. Davis, 487 F.3d 282 (5th Cir. 2007): Held Texas robbery was an ACCA “violent felony” under the residual clause—strong evidence that a 2008 sentencing court would have relied on that clause.
  • United States v. Santiesteban-Hernandez, 469 F.3d 376 (5th Cir. 2006), abrogated on other grounds by United States v. Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc): Concluded Texas robbery did not satisfy an identically interpreted “force clause” in former U.S.S.G. § 2L1.2. Together with Davis, it supports the panel’s reaffirmed conclusion that residual-clause reliance was more likely than not.
  • United States v. Moore, 635 F.3d 774 (5th Cir. 2011): Supplies the interpretive bridge that Fifth Circuit force-clause cases under § 2L1.2 and ACCA are treated interchangeably, bolstering the inference drawn from Santiesteban-Hernandez.

3. Harmlessness: from Garrett to Floyd to Rose

  • United States v. Garrett, 24 F.4th 485 (5th Cir. 2022): Previously supplied the “harmless error” rationale by treating Texas robbery as divisible and allowing Texas robbery-by-threat to qualify under ACCA’s elements clause via the modified categorical approach.
  • Borden v. United States, 593 U.S. 420 (2021): Explains why a reckless mens rea is insufficient for ACCA’s elements clause. Garrett had recognized robbery-by-injury could be reckless, but avoided the consequence by treating robbery-by-threat as separable.
  • Floyd v. State, 714 S.W.3d 9 (Tex. Crim. App. 2024): The Texas Court of Criminal Appeals held robbery-by-threat and robbery-by-injury are “alternative methods of committing the same robbery offense” and do not require jury unanimity as to method. This undermines divisibility and therefore the modified categorical pathway used in Garrett.
  • United States v. Rose, 127 F.4th 619 (5th Cir. 2025): Fifth Circuit recognition that Floyd “unequivocally abrogated” Garrett. Once Garrett falls, there is no longer a Fifth Circuit basis (on the opinion’s reasoning) to deem the residual-clause error harmless.

4. Discretionary doctrines the court declines to apply

Concurrent sentence doctrine

  • United States v. Stovall, 825 F.2d 817 (5th Cir. 1987) and United States v. Nelson, 574 F.2d 277 (5th Cir. 1978): Provide the classic formulation of the concurrent sentence doctrine as a judicial-economy tool.
  • United States v. Collins, 774 F.3d 256 (5th Cir. 2014) (discussing Ray v. United States, 481 U.S. 736 (1987)): Reflect the doctrine’s modern limitations.
  • Austin v. Cain, 660 F.3d 880 (5th Cir. 2011) (per curiam) and Davis v. Thaler, 373 F. App’x 446 (5th Cir. 2010) (per curiam): Note the Fifth Circuit’s reticence to rely on the doctrine in habeas contexts.

Procedural default (majority’s discretionary refusal; dissent’s core objection)

  • Trest v. Cain, 522 U.S. 87 (1997): A court of appeals is not required to raise procedural default sua sponte.
  • United States v. Willis, 273 F.3d 592 (5th Cir. 2001): Cited by the majority for the proposition that to invoke the procedural bar on appeal, the Government must attempt to invoke it first in the district court.
  • United States v. Taylor, 873 F.3d 476 (5th Cir. 2017) and James v. United States, 550 U.S. 192 (2007): Appear in the majority’s footnote discussion of fairness, novelty, and the Government’s past litigation posture in Johnson-related cases.
  • United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016): Quoted for the practical point that Johnson was not reasonably anticipated.

Sentencing package doctrine

  • United States v. Miller, 594 F.3d 172 (3d Cir. 2010): Provides the “common sense” articulation of reconstructing sentencing architecture when component counts are vacated.
  • United States v. McRae, 795 F.3d 471 (5th Cir. 2015) and United States v. Clark, 816 F.3d 350 (5th Cir. 2016): Describe the doctrine’s Fifth Circuit contours—typically used where sentences/counts are “interrelated or interdependent.”
  • (In dissent’s footnote) United States v. Chaney, 911 F.3d 222 (4th Cir. 2018): Cited to note other circuits have applied the doctrine in § 2255 settings.

5. The dissent’s procedural-default authorities

The dissent’s analysis is built around procedural default’s role in finality, preservation, and habeas limits, drawing on: Fed. R. Crim. P. 51(b); United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc); United States v. Placente, 81 F.3d 555 (5th Cir. 1996); Calderon v. Thompson, 523 U.S. 538 (1998) (quoting Teague v. Lane, 489 U.S. 288 (1989)); Wainwright v. Sykes, 433 U.S. 72 (1977); Bousley v. United States, 523 U.S. 614 (1998); McQueen v. Whitley, 989 F.2d 184 (5th Cir. 1993); Bosley v. Cain, 409 F.3d 657 (5th Cir. 2005); United States v. Vargas-Soto, 35 F.4th 979 (5th Cir. 2022); and discretionary/forfeiture-waiver lines including Gray v. Netherland, 518 U.S. 152 (1996), Smith v. Johnson, 216 F.3d 521 (5th Cir. 2000), Fisher v. Texas, 169 F.3d 295 (5th Cir. 1999), Wood v. Milyard, 566 U.S. 463 (2012), Day v. McDonough, 547 U.S. 198 (2006), Reed v. Ross, 468 U.S. 1 (1984), Engle v. Isaac, 456 U.S. 107 (1982), Shinn v. Ramirez, 596 U.S. 366 (2022), and additional waiver/forfeiture cases the dissent cites for general principles.

B. Legal Reasoning

1. Residual-clause reliance: reaffirming the “more likely than not” inference

The majority treats the residual-clause reliance question as time-bound: what would have been the most likely doctrinal path in 2008? In that period, Fifth Circuit law (United States v. Davis) squarely placed Texas robbery under ACCA’s residual clause, while a parallel force-clause analysis (United States v. Santiesteban-Hernandez) cut against an elements-clause approach. The panel therefore sees “no reason to revisit” its earlier determination that residual-clause reliance was more likely than not.

2. Harmlessness collapses once Garrett is abrogated

The earlier 2022 disposition hinged on harmlessness: even if the residual clause was used, Texas robbery purportedly still qualified under the elements clause based on United States v. Garrett. The 2026 opinion’s turning point is that Floyd v. State recharacterizes Texas robbery as a single offense with alternative means, eliminating the divisibility premise that made Garrett workable. With United States v. Rose confirming Floyd abrogated Garrett, the panel concludes “nothing renders this error harmless.” The result is categorical: an ACCA enhancement that depended on the residual clause is unconstitutional under Johnson, and the court identifies no surviving elements-clause route for these robbery predicates on this record and reasoning.

3. Why the court refuses discretionary off-ramps

The opinion is also a remedial-discipline decision—explicitly addressing and rejecting three discretionary doctrines.

  • Concurrent sentence doctrine: The Government urged the court to conserve resources because Senegal is already serving two consecutive life sentences. The panel declines, emphasizing the doctrine’s diminished role, its uncertain fit in § 2255 proceedings, and the fact the life sentences are consecutive (not concurrent) with the ACCA sentences under attack.
  • Procedural default: Although the Government pressed default (and conceded discretionary application because it failed to raise it below), the panel again passes—citing fairness considerations, the Government’s apparent pattern in Johnson-era litigation, and an “asymmetry” concern in faulting a defendant for not anticipating Johnson while excusing the Government’s own failure to timely raise default. The dissent views this as a misuse of discretion that conflicts with Fifth Circuit precedent on when appellate courts may reach default despite forfeiture.
  • Sentencing package doctrine: Senegal sought a full resentencing. The panel refuses because Senegal did not show how the ACCA counts were “interrelated or interdependent” with the unchallenged sentences—especially the two consecutive life sentences—so the “sentencing architecture” need not be rebuilt beyond Counts SS4 and SS8.

C. Impact

1. Texas robbery as an ACCA predicate after Floyd

The decision’s practical core is the Fifth Circuit’s acceptance that Floyd v. State undermines the divisibility framework that once allowed Texas robbery-by-threat to be isolated as a qualifying predicate under United States v. Garrett. For defendants whose ACCA enhancements relied on Texas robbery and were previously defended as harmless under Garrett, United States v. Senegal illustrates a pathway to relief—especially where the record and timing support residual-clause reliance.

2. Recall of mandate and post-judgment corrections

Institutionally, the case is a reminder that intervening state-court interpretations (here, the Texas Court of Criminal Appeals) can reconfigure federal categorical-approach analysis, and that appellate courts may recall mandates and rehear cases when a key predicate for affirmance (here, harmlessness under Garrett) is later recognized as mistaken (via Rose and Floyd).

3. Remedial minimalism: limited remands in multicount cases

The court’s refusal to apply the sentencing package doctrine underscores a restrained remedial posture: even where a constitutional error exists, resentencing may be confined to the affected counts absent a persuasive showing of interdependence. This limits the leverage a successful collateral attack on one component count can exert over an otherwise final sentencing plan.

4. Procedural default remains contested terrain

The majority’s decision not to apply procedural default is expressly discretionary and fact-laden; the dissent’s detailed objection signals continued volatility. Future panels may distinguish Senegal (especially where the Government timely raises default, or where notice/opportunity to respond is disputed), and litigants should expect procedural default to remain a front-line issue in Johnson-derivative § 2255 litigation.

IV. Complex Concepts Simplified

  • ACCA “violent felony” clauses: ACCA qualifies predicates through (a) the elements clause (offense requires use/attempt/threat of violent force), (b) the enumerated offense clause (named crimes like burglary), and (c) the former residual clause (risk-based catchall). Johnson invalidated the residual clause.
  • Categorical vs. modified categorical approach: Courts typically compare the statutory elements of the prior offense to ACCA’s definition (categorical approach). If a statute is divisible (separate crimes with distinct elements), courts may consult limited “Shepard documents” to determine which version the defendant was convicted of (modified categorical approach).
  • Divisibility and jury unanimity: Floyd v. State matters because if jurors need not unanimously choose between “injury” and “threat,” those alternatives may be mere means, not separate elements—making the statute non-divisible for modified categorical purposes.
  • Recklessness and the elements clause: Under Borden v. United States, an offense that can be committed with a reckless mental state generally does not satisfy ACCA’s elements clause.
  • Harmless error: Even if the sentencing court used an unconstitutional clause, the Government can avoid relief by showing the same enhancement would apply anyway under a valid clause. Here, that fails once Garrett is off the table.
  • Procedural default: On collateral review, claims not raised earlier may be barred unless the defendant shows “cause and prejudice” or “actual innocence.” The majority declines to apply the bar due to forfeiture and fairness considerations; the dissent would enforce it.
  • Concurrent sentence doctrine: A discretionary doctrine allowing courts to skip review of a conviction/sentence if another equal-or-longer valid sentence makes the outcome practically unchanged. The panel declines to use it here.
  • Sentencing package doctrine: Allows a district court to restructure the entire sentence when one part is undone—if the counts are interdependent. The court holds Senegal did not show interdependence, so resentencing is limited to the ACCA counts.

V. Conclusion

United States v. Senegal resets the Fifth Circuit’s treatment of Senegal’s ACCA enhancement after intervening authority: once Floyd v. State (as recognized in United States v. Rose) abrogated United States v. Garrett, the court could no longer deem a residual-clause ACCA enhancement harmless by isolating Texas robbery-by-threat. Reaffirming that the sentencing court likely relied on the residual clause in 2008—and declining discretionary doctrines that could avoid relief— the court vacates the ACCA-enhanced sentences on Counts SS4 and SS8 and remands for resentencing on those counts only. The dissent underscores that procedural default may still defeat similar claims where courts choose to reach it.