Lister v. United States
| Decision Date | 12 December 2018 |
| Docket Number | No. 3:15-CV-3523-K,No. 3:12-CR-215-K (1),3:15-CV-3523-K,3:12-CR-215-K (1) |
| Parties | XAVIER LISTER, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court is Xavier Lister's (Movant) motion to vacate, set-aside, or correct sentence pursuant 28 U.S.C. § 2255. The motion is GRANTED.
Movant was charged by indictment with conspiracy to possess with felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. 1.) Movant pleaded not guilty and waived his right to a jury. He was subject to a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because he had four convictions for Texas burglary. (Doc. 31-1 at 5, ¶ 22; doc. 40-1 at 2-3.) The Court found him guilty and sentenced him to 180 months in prison. (Doc. 44 at 2.) The judgment was affirmed on appeal. (Doc. 68); United States v. Lister, No. 13-10535 (5th Cir. July 31, 2014).
Movant raises the following grounds in his second amended motion to vacate:
Prior convictions under Texas Penal Code § 30.02 cannot support the sentencing enhancement under which he was previously sentenced.
Movant filed a pro se motion to vacate and an amended motion to vacate. This case was stayed on October 26, 2017, pending the Fifth Circuit's consideration of Texas burglary under the Armed Career Criminal Act in United States v. Herrold, No. 14-11317. The case was reopened on March 12, 2018, on Movant's motion after Herrold was decided. The government filed a response based on Herrold on May 11, 2018, and Movant filed a reply on June 12, 2018. Counsel was appointed, and Movant filed the second amended motion to vacate through counsel that supersedes the previous motions to vacate.
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well-established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)).
Movant contends that his sentence should not have been enhanced under the Armed Career Criminal Act (ACCA) for his prior Texas burglary convictions.
Johnson v. United States, 135 S.Ct. 2551, 2555-56 (2015). Subsection (i) is known either as the force clause, United States v. Lerma, 877 F.3d 628, 630 (5th Cir. 2017), or as the elements clause, United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). The four offenses listed in subsection (ii) are referred to as the "enumerated offenses," see United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007), or as the "enumerated offenses clause," Taylor, 873 F.3d at 477 n.1. The remainder of the subsection is known as the "residual clause," Johnson, 135 S.Ct. 2555-56.
Johnson held that the imposition of an increased sentenced under ACCA's residual clause violates the Constitution's guarantee of due process because the residualclause is unconstitutionally vague. Johnson, 135 S. Ct. at 2563. This holding is retroactively available on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). After Johnson, a crime is a violent felony under ACCA only if it is one of the enumerated offenses, or if it qualifies under the force clause. United States v. Moore, 711 F. App'x 757, 759 (5th Cir. 2017) (per curiam).
Here, the Texas burglary statute under which Movant was convicted provided in part:
Tex. Penal Code § 30.02(a).
Burglary is an offense that is listed in the enumerated offenses clause as a violent felony. The type of burglary that is listed in the enumerated offenses clause is the "usual" version of that offense, and it does not include every variation of burglary. SeeMathis v. United States, 136 S.Ct. 2243, 2248 (2016). The usual burglary offense that is listed in the enumerated offenses clause is called "generic burglary." See Mathis, 136 S.Ct. at 2248. A generic burglary under the enumerated offenses clause is the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." See United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)). For a Texas burglary to be a violent felony as an enumerated offense of burglary, it must include those elements of a generic burglary. See id.
When Movant was sentenced, the Fifth Circuit had held that Texas burglary under all subsections of § 30.02(a) was a violent felony as the equivalent of generic burglary under the enumerated offenses clause. See United States v. Weise, 896 F.3d 720, 725 (5th Cir. 2018); United States v. Stone, 72 F. App'x 149, 150 (5th Cir. 2003); United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992). However, the Fifth Circuit reconsidered this issue en banc in Herrold after the Supreme Court vacated the prior judgment affirming Herrold's sentence and remanded for "renewed consideration" in light of the Supreme Court's opinion in Mathis. United States. v. Herrold, 838 F.3d 517 (2018)(en banc).
In Herrold, the Fifth Circuit stated that to decide whether a Texas conviction forburglary qualifies as a conviction for a violent felony under the enumerated offense clause, it must first determine whether the three subsections of the Texas burglary statute "sets forth alternative means of committing a single substantive crime, or separate elements, effectively defining distinct offenses." Id. at 521. Among the ways a federal court can determine whether multiple subsections of a state statute set out alternative means of committing a single crime or separate elements and, therefore, distinct crimes, is to review state court decisions to determine whether a jury must unanimously agree on the subsection that the defendant violated. See id. at 522. If a jury does not need to unanimously agree on the subsection that was violated, then the subsections of the statute set out alternative means of committing a single offense. See id. Such a statute is called an indivisible statute. See id.
Applying that analysis to the Texas burglary statute, the Fifth Circuit determined that in order to convict, a jury is not required to agree on the subsection of the Texas burglary statute that a defendant violated. See id. at 523 (). The Texas burglary statute, therefore, sets out one offense, with separate means of committing burglary, and is indivisible. See id. at 529-30.
When a statute is indivisible, each subsection is compared to the generic offense. If any of the subsections is broader than generic burglary, then the state offense is not a violent felony and a conviction for that offense cannot be used for enhancementunder the ACCA. Id. at 521-22, 530-31. This analytical comparison is known as the categorical approach. See id. at 521-22, 530-31.
In Herrold, the Fifth Circuit compared the burglary statute to generic burglary. To be guilty of a generic burglary, a person must have the intent to commit a crime when he makes the unauthorized entry or remains in the building without authorization. See id. at 531. Subsection 30.02(a)(3) is broader than generic burglary, because it makes it a crime to enter a building or habitation and thereafter commit or attempt to commit a felony, theft, or assault. See id. That subsection does not require that the person have the intent to commit a crime contemporaneously with the unauthorized entry or unauthorized remaining in the building. See id. at 531-32. Because subsection 30.02(a)(3) is broader than generic burglary, and because the Texas burglary statute is indivisible, a conviction under the Texas burglary statute is not for a violent felony and cannot be used for enhancement under the ACCA. See id. at 537; see also United States v. Castro, — F. App'x —, No. 17-50447, 2018 WL 4870859, at *1 (5th Cir. Oct. 8, 2018) (). The Fifth Circuit has also held that...
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