Dylan Gregory Kerstetter v. United States

The Texas statutes defining Mr. Kerstetter’s prior offenses explicitly prohibit conduct outside the Armed Career Criminal Act’s definitions of “serious drug offense” and “violent felony,” 18 U.S.C. § 924(e)(2). He also tried to comply with the Fifth Circuit’s “realistic probability” jurisprudence by pointing to cases in which Texas courts confirmed that the state laws mean what they say. Even so, the Fifth Circuit affirmed his ACCA sentence and refused to reconsider its realistic probability requirement. 1. Under the ACCA’s categorical approach, if a state statute expressly criminalizes conduct outside the federal definitions of “serious drug offense” or “violent felony,” does the defendant bear a burden of proving that the state had also applied its law to convict someone for non-qualifying conduct? 2. If so, has Mr. Kerstetter satisfied that burden?