     Case: 17-40554      Document: 00514787998         Page: 1    Date Filed: 01/09/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 17-40554                        January 9, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

FRED WINTERROTH,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:16-CV-59


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Fred Winterroth challenged the length of his sentence as unlawful
through a motion under 28 U.S.C. § 2255. The district court denied the motion
on the merits. We conclude the district court lacked jurisdiction to address the
motion. We therefore VACATE the district court’s order and DISMISS for lack
of jurisdiction.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 17-40554
                                     I.   Background
      In 2006, Fred Winterroth pleaded guilty to one charge of possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to serve 262
months in prison and a five-year term of supervised release. 1 The ACCA
enhancement was based on two Texas burglary convictions and one Texas
robbery conviction. Winterroth admitted to those convictions and took no
direct appeal.
      In June 2014, Winterroth filed his first motion under 28 U.S.C. § 2255,
asserting his sentence was invalid after the Supreme Court’s decision in
Descamps v. United States, 570 U.S. 254 (2013). In his motion, Winterroth
sought a reexamination of his ACCA predicate convictions. The district court
concluded that the motion was untimely and dismissed it.
      In 2016, Winterroth sought our authorization to file a successive § 2255
motion.   This time, he argued that his sentence was unlawful in light of
Johnson v. United States, which struck down the residual clause of the ACCA’s
§ 924(e)(2)(B)(ii) “violent felony” definition as unconstitutionally vague. See
135 S. Ct. 2551, 2557 (2015). Winterroth specifically challenged the use of his
burglary convictions as ACCA predicates.           He conceded that his burglary
convictions arose under Texas Penal Code § 30.02, but he asserted that the
charging instruments in those cases did not clarify whether he was convicted
for burglary under § 30.02(a)(1) or § 30.02(a)(3).              A conviction under
§ 30.02(a)(1) would still qualify as an ACCA predicate post-Johnson, he
conceded at the time, but a conviction under § 30.02(a)(3) would not. He did
not challenge the use of his robbery conviction for the ACCA enhancement, and


      1   The plea agreement included a waiver of collateral review which the Government
has invoked. Thus, Winterroth must show that his sentence exceeds the statutory maximum
to meet the only relevant exception to the waiver.
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                                  No. 17-40554
he even conceded that it was a qualifying ACCA predicate offense.              We
authorized Winterroth to bring a successive § 2255 motion challenging his
ACCA enhancement under Johnson, which was made retroactively applicable
to cases on collateral review in Welch v. United States, 136 S. Ct. 1257, 1265
(2016).
      Winterroth then litigated his § 2255 motion in the district court,
reiterating his contention that his two burglary convictions could not be used
post-Johnson as ACCA predicate convictions. His motion did not challenge the
use of his robbery conviction as an ACCA predicate.
      The district court denied Winterroth’s motion. It determined that the
Texas burglary statute is divisible and that application of the modified
categorical approach showed that both of Winterroth’s prior Texas burglary
convictions were under § 30.02(a)(1), which this court had held to be generic
burglary and thus an ACCA predicate offense even after Johnson. The district
court also noted that Winterroth had not challenged the use of his robbery
conviction for purposes of the ACCA sentence enhancement.
      Winterroth timely noticed his appeal. He then moved for a certificate of
appealability (“COA”), reiterating that the enhancement of his sentence under
the ACCA was improper.         We granted a COA on the issue of “whether
[Winterroth] should receive relief on his claim that he no longer qualifies for
sentencing under the ACCA” in light of our decision in United States v.
Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), petition for cert. filed (Apr. 18,
2018) (No. 17-1445). Winterroth’s COA motion also sought to challenge the
use of his Texas robbery conviction to support the ACCA enhancement in his
case. Though we initially denied a COA on this issue, we later expanded the
COA to include it. We now address Winterroth’s arguments.




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                                      No. 17-40554
                                II.   Burglary Convictions
       We lack jurisdiction to consider Winterroth’s § 2255 motion as it applies
to his burglary convictions. A successive motion like Winterroth’s may only be
filed if it raises a newly recognized, retroactively applicable constitutional right
or, under certain conditions, newly discovered evidence. 28 U.S.C. § 2255(h).
       Winterroth relies on Johnson as the alleged newly recognized
constitutional right that permits him to file a successive petition. Johnson
struck down the residual clause of the ACCA’s § 924(e)(2)(B)(ii) “violent felony”
definition as unconstitutionally vague. See 135 S. Ct. at 2557, 2563 (2015).
Thus, for Johnson to be relevant, Winterroth must show that the sentencing
judge relied on the residual clause to sentence Winterroth. See United States
v. Wiese, 896 F.3d 720, 724–26 (5th Cir. 2018), petition for cert. filed (Dec. 26,
2018) (No. 18-7252). “Merely a theoretical possibility” that the district court
relied on the residual clause is insufficient. Id. at 726.
       Winterroth fails to make the necessary showing. 2 Winterroth’s challenge
to his ACCA enhancement is nearly identical to the challenge in Wiese. As was
the case in Wiese, 896 F.3d at 725, the district court said nothing at sentencing
as to whether it considered Winterroth’s prior Texas burglary convictions to be
ACCA predicates as the enumerated offense of burglary or to be violent felonies
under § 924(e)’s residual clause. As was the case in Wiese, “all of § 30.02(a)
was considered generic burglary under the enumerated offenses clause of the
ACCA” when Winterroth was convicted of being a felon in possession in 2006.
Id. Nothing in the legal landscape at the time of Winterroth’s sentencing
would have caused the sentencing court to consider whether his prior Texas



       We did not resolve in Wiese the precise burden that applies to a defendant attempting
       2

to make that showing. Wiese, 896 F.3d at 724–26. Different circuits have applied different
standards. Id. As we did there, we conclude here that Winterroth fails under either standard
and thus need not resolve the precise standard.
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                                        No. 17-40554
burglary convictions were anything other than the enumerated offense of
burglary. See id. 3 Moreover, Winterroth’s pre-sentence report referred to his
prior burglary convictions as being for “Burglary of a Habitation,” just like
Wiese’s did. Id. Finally, as was the case in Wiese, id., the indictments provided
by the Government reflect that Winterroth was convicted of a crime with the
requisite intent under § 30.02(a)(1). Winterroth has not shown anything more
than a mere theoretical possibility that the sentencing court relied on the
residual clause to sentence him. 4
       We therefore conclude that Johnson is irrelevant to Winterroth’s
challenge under our precedent. Winterroth fails to show that he has raised a
newly recognized constitutional right which satisfies the requirements of §
2255(h). The district court lacked jurisdiction to consider his § 2255 motion.
Id. at 726. Accordingly, we vacate the district court’s order addressing the
merits of the burglary conviction issue and dismiss for lack of jurisdiction.
                                 III.    Robbery Conviction
       We also conclude that Winterroth’s challenge to his robbery conviction is
not properly before us for several reasons. We note that Winterroth never
sought or obtained permission to file a successive habeas petition on the
grounds that his robbery conviction was improperly treated as an ACCA
predicate conviction. See 28 U.S.C. §§ 2244(b)(3), 2255(h) (requiring a prisoner



       3  The Supreme Court’s recent decision in United States v. Stitt, 139 S. Ct. 399 (2018),
reinforces the point that the focus of the inquiry is on the meaning of “generic burglary.”
        4 Winterroth argues that Wiese does not control because charging documents were

available to the sentencing court in Wiese, while here only the pre-sentence report establishes
his offense. But, as we recently said in an unpublished opinion, “[W]e do not see why that
requires a different result given that . . . any conviction for Texas burglary of a habitation
[then] qualified as generic burglary. There was no need to resort to the modified categorical
approach, which is the point of considering state conviction records, to reach that conclusion.”
United States v. Castro, No. 17-40312, 2018 WL 6070373, at *2 (5th Cir. Nov. 20, 2018); see
also Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006) (“An unpublished opinion
issued after January 1, 1996 is not controlling precedent, but may be persuasive authority.”).
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                                     No. 17-40554
to seek authorization from the court of appeals before the district court can
consider the application); United States v. McDaniels, 907 F.3d 366, 369–70
(5th Cir.) (dismissing an unauthorized successive petition for want of
jurisdiction). Further, Winterroth argued for the first time on appeal that his
robbery conviction could not be an ACCA predicate. “Issues raised for the first
time on appeal of a 28 U.S.C. § 2255 motion are not considered.” United States
v. Graves, 248 F.3d 1138 (5th Cir. 2001). 5
      To the extent Winterroth’s appeal should be treated as a request to
authorize a successive habeas petition, we deny it. See Kutzner v. Cockrell, 303
F.3d 333, 339 (5th Cir. 2002) (considering an appeal from an unauthorized
successive habeas petition to be a request for authorization to file a successive
habeas petition). He first made his robbery argument well after the one-year
deadline to raise Johnson as a new rule of constitutional law. See 28 U.S.C. §
2255(f)(3). Consequently, the assertion is untimely. See In re Johnson, 325 F.
App’x 337, 338 (5th Cir. 2009) (per curiam) (denying a request to file a
successive habeas petition based on a newly recognized constitutional right
because it would be time-barred). We thus do not reach the issue of whether a
Texas robbery conviction is a qualifying felony under the ACCA.
                                     IV.     Conclusion
      We VACATE the district court’s judgment and DISMISS Winterroth’s
§ 2255 motion for lack of jurisdiction.




      5 Winterroth argued his robbery point to the district court in an Emergency Motion
for Immediate Release that he filed four months after the district court had already denied
his motion and three months after Winterroth appealed. The district court denied that
motion, concluding that it was a successive habeas petition.
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