United States v. Taylor, 16-11384.

Citation873 F.3d 476
Decision Date12 October 2017
Docket NumberNo. 16-11384.,16-11384.
Parties UNITED STATES of America, Plaintiff-Appellee v. Lawrence James TAYLOR, Defendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Timothy W. Funnell, Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, for Defendant-Appellant.

Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

We are tasked with deciding whether Lawrence James Taylor's claim that his sentence enhancement is no longer valid under the Armed Career Criminal Act ("ACCA") is constitutionally or statutorily based in light of the district court's conclusion that the now constitutionally defunct residual clause "played no role" at his sentencing. We hold that Taylor's claim is constitutionally based and warrants relief under 28 U.S.C. § 2255.

FACTS AND PROCEEDINGS

In 2006, Lawrence James Taylor pleaded guilty to possession of a firearm by a convicted felon—which usually carries a maximum sentence of 10 years' imprisonment. See 18 U.S.C. § 924(a)(2). The presentence report ("PSR") recommended an enhanced sentence under the ACCA because Taylor had two "violent felony"1 convictions for burglary of a building and one "crime of violence"2 conviction for injury to a child. See 18 U.S.C. § 924(e)(2)(B). In accordance with the ACCA enhancement, the PSR calculated a guideline range of 235 to 293 months' imprisonment.

Taylor objected to several aspects of the PSR. He did not object or claim, however, that his Texas conviction for injury to a child was excluded as an ACCA predicate. At his sentencing, Taylor conceded his injury-to-a-child conviction was a "crime of violence." The district court adopted the findings and conclusions of the PSR and imposed a prison term of 260 months. Taylor appealed his sentence, but did not contend that the district court erred when it determined his injury-to-a-child conviction was an ACCA predicate. This court affirmed. See United States v. Taylor , 263 Fed.Appx. 402, 407 (5th Cir. 2008).

Taylor subsequently filed two motions under § 2255 to vacate his sentence. The district court denied relief as to both motions, and this court affirmed.

In 2015, the Supreme Court held that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). The Court subsequently announced this was a new, substantive rule and therefore applied retroactively. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Taylor sought assistance from the Federal Public Defender's office ("FPD") to determine whether his injury-to-a-child conviction still counted as an ACCA predicate after Johnson . The FPD moved the district court for appointment as Taylor's counsel. The district court denied the motion, reasoning it "would result in a waste of judicial resources."

Taylor requested authorization from this court to file another petition under § 2255(h) and again asked for appointment of counsel. While those motions were pending before this court, Taylor filed a "placeholder" petition in the district court to guard against exceeding the one-year deadline to file motions based on Johnson . Taylor moved the court to stay or abate the placeholder action until this court could rule on the motions that remained pending here.

Before this court ruled on Taylor's motions, the district court denied the placeholder petition and the motion to stay. The district court ruled that the placeholder petition was untimely3 and that the ACCA's residual clause "did not play any role in Movant's sentencing." The district court noted Taylor's concession that the injury-to-a-child offense counted as a violent felony, and it stated that Taylor should have challenged the classification of the conviction at sentencing. The district court opined that if Taylor were allowed to file his successive § 2255 motion, "the [federal] sentencing scheme ... would be upended." The court further declared that because Taylor did not argue that his injury-to-a-child conviction fell outside the definition of a violent felony at sentencing, "there would be no basis for a § 2255 review of that issue even if his second and successive § 2255 motion had been his first and even if it had been timely filed."

This court subsequently appointed the FPD as counsel and granted authorization to file a successive § 2255 petition. When granting authorization to file the petition, this court explained that Fifth Circuit precedent indicated that a Texas conviction for injury to a child may not qualify as an ACCA predicate offense in light of Johnson .4 This court warned, however, that "[the] grant of authorization is tentative in that the district court must dismiss the § 2255 motion without reaching the merits if it determines that Taylor has failed to make the showing required to file such a motion." The case was transferred back to the district court "for filing as a § 2255 motion."

Within a week, and before any documents were filed, the district court entered a sua sponte order dismissing the action, adopting its reasoning from its previous order dismissing the placeholder motion. The district court denied Taylor's request for a certificate of appealability and concluded that Taylor could not make the showing this court required because Taylor failed to make the argument that injury to a child is not an ACCA predicate offense at the time of his sentencing and on appeal.

Taylor appealed and this court granted a certificate of appealability as to three issues5 and ordered expedited briefing. Taylor now asks this court to exercise its statutory authority under 28 U.S.C. § 2106 to render judgment in his favor and grant Taylor's motion to vacate the ACCA sentence. He has already served more than 129 months of his 260 month sentence.

STANDARD OF REVIEW

When considering challenges to a district court's decisions under 28 U.S.C. § 2255, this court reviews questions of law de novo . United States v. Faubion , 19 F.3d 226, 228 (5th Cir. 1994). All of the certified issues raise questions of law.

DISCUSSION

As an initial matter, the government concedes two of the issues certified on appeal. It acknowledges that, under this court's precedent, Taylor's injury-to-a-child conviction no longer counts as an ACCA predicate after Johnson . See United States v. Martinez-Rodriguez , 857 F.3d 282, 286 (5th Cir. 2017) (holding as a matter of statutory construction that Texas's injury-to-a-child offense is broader than ACCA's elements clause). The government further concedes that if Taylor's claim is constitutionally based, then Taylor's sentence exceeds the statutory maximum.6

The government does not contend that the new rule the Supreme Court announced in Johnson was available to Taylor at the time of sentencing or that Taylor should have challenged his Texas injury-to-a-child conviction.7 Rather, the government argues that Congress has authorized relief under § 2255(h)(2) only if it is based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h)(2) (emphasis added). Pointing to the district court's conclusion that the residual clause played no role at Taylor's sentencing, the government contends that Taylor bears the burden of proof to show that the district court, at his sentencing hearing, construed his injury-to-a-child conviction as an ACCA predicate under the residual clause, rather than the still-valid elements clause. However, the government points to no precedential authority at the time of sentencing finding this crime to be a violent felony under the elements clause.

If Taylor can show that the district court sentenced him under the now constitutionally infirm "residual clause," the government acknowledges that he will have demonstrated that a constitutional error occurred and that he warrants the relief he seeks. If, however, Taylor cannot make that showing—whether because the district court simply did not explicitly determine which clause of the ACCA it used to enhance Taylor's sentence or for some other reason—then, according to the government, the mistake is statutory, not constitutional. In that event, relief could be granted only under 28 U.S.C. § 2241, if at all. Put simply, this case turns on a single issue: Whether Taylor's claim is constitutionally or statutorily based.

Many courts considering this question have rejected the government's position that the defendant must demonstrate that the district judge actually relied on the residual clause during sentencing. These courts' reasons for rejecting the government's position have been many and varied.

For example, the Fourth Circuit addressed an action in which "the record [did] not establish that the residual clause served as the basis for concluding that [defendant's] prior convictions ... qualified as violent felonies." United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017). That court declined to "penalize a movant for a court's discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony." Id. The court explained that "nothing in the law requires a court to specify which clause it relied upon in imposing a sentence." Id. (quoting In re Chance , 831 F.3d 1335, 1340 (11th Cir. 2016) ). The Fourth Circuit worried that "imposing the burden on movants urged by the government ... would result in ‘selective application’ of the new rule of constitutional law announced in Johnson II ." Id. That result would violate " ‘the principle of treating similarly situated defendants the same.’ ...

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