     Case: 17-60499      Document: 00515390395         Page: 1    Date Filed: 04/21/2020




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

                                                                               FILED
                                    No. 17-60499                           April 21, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WILL ROBERTSON BROWN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:16-CV-223


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Will Robertson Brown, former federal prisoner # 03641-043, appeals the
district court’s denial and dismissal of his tentatively-authorized successive 28
U.S.C. § 2255 motion challenging his conviction of and sentence for being a
felon in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(e). The district
court sentenced Brown in 2004 to 188 months in prison and five years of
supervised release. Although he has been released from prison, this appeal is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60499

not moot because Brown is currently serving his term of supervised release.
See United States v. Lares-Meraz, 452 F.3d 352, 355 (5th Cir. 2006). In his
successive § 2255 motion, Brown argued that four of six prior convictions no
longer qualify as violent felonies under § 924(e)(2)(B) after Johnson v. United
States, 135 S. Ct. 2551 (2015). Brown contends that without those violent
felony convictions, he was not subject to the enhanced penalties under the
Armed Career Criminal Act (ACCA).
      Because Brown based his successive § 2255 motion on a new rule of
constitutional law made retroactive to cases on collateral review by the
Supreme Court in Johnson, Brown had to show in the district court that his
claim “relie[d] on” that rule. United States v. Wiese, 896 F.3d 720, 723 (5th Cir.
2018), cert. denied, 139 S. Ct. 1328 (2019). Specifically, Brown had to show
that the sentencing court “more likely than not” relied on the residual clause
at sentencing to categorize a prior conviction as a violent felony. United States
v. Clay, 921 F.3d 550, 558-59 (5th Cir. 2019), as revised (Apr. 25, 2019), cert.
denied, 140 S. Ct. 866 (2020). Reviewing de novo, see Wiese, 896 F.3d at 723 &
n.3, we conclude that Brown failed to make the required showing. See Clay,
921 F.3d at 558-59. The district court therefore did not have jurisdiction to
reach the merits, and our jurisdiction likewise does not extend to the merits.
See Wiese, 896 F.3d at 723-24.
      When the district court sentenced Brown in 2004, the ACCA provided
enhanced penalties for a felon in possession of a firearm who had at least three
prior convictions for violent felonies or serious drug offenses. § 924(e)(1) (2004).
At that time and until Johnson, the ACCA defined a violent felony as a crime
punishable by more than one year in prison that (1) “has as an element the
use, attempted use, or threatened use of physical force against” another (the
elements or force clause), (2) is the enumerated offense of burglary, arson, or



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extortion, or involves the use of explosives (the enumerated offenses clause), or
(3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another” (the residual clause).        § 924(e)(2)(B) (2004) &
(2017); see United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). In
Johnson, the Court held that the residual clause is unconstitutionally vague.
135 S. Ct. at 2557.
      At the time of his sentencing, Brown had a 1992 Mississippi conviction
for aggravated assault and two 1993 Mississippi convictions for aggravated
assault of a law enforcement officer. See MISS. CODE § 97-3-7(2) (West 1991);
MISS. CODE § 97-3-7(2) (West 1992); see also McNeill v. United States, 563 U.S.
816, 821 (2011). Aggravated assault of a law enforcement officer was defined
by the same conduct as aggravated assault generally except the offense had to
be perpetrated against a law enforcement officer, and it carried a heavier
penalty. MISS. CODE § 97-3-7(2) (West 1992).
      In 2004, aggravated assault was not an enumerated offense and did not
involve the use of explosives under § 924(e)(2)(B)(ii) (2004). Although the
inclusion of reckless conduct in subsection (a) of the Mississippi statute likely
did not involve the use of force at the time of Brown’s sentencing, see United
States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004), Brown concedes,
and the record supports, that his prior convictions arose under subsection (b)
of the divisible state statute which requires intentional conduct. See MISS.
CODE § 97-3-7(2)(b) (West 1991); MISS. CODE § 97-3-7(2)(b) (West 1992).
Subsection (b) criminalized an “attempt[] to cause or purposely or knowingly
caus[ing] bodily injury to another with a deadly weapon or other means likely
to produce death or serious bodily harm.” MISS. CODE § 97-3-7(2)(b) (West
1991); MISS. CODE § 97-3-7(2)(b) (West 1992). Based on the record and the
legal precedent at the time of Brown’s sentencing, see Wiese, 896 F.3d at 724-



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25, Brown fails to show that it is more likely than not that the district court
relied on the residual clause, rather than the force clause, to determine that
his prior convictions qualified as violent felonies under § 924(e)(2). See United
States v. Calderon-Pena, 339 F.3d 320, 329-30 (5th Cir. 2003), reh’g en banc
granted, opinion vacated, 362 F.3d 293 (5th Cir. 2004), on reh’g en banc, 383
F.3d 254 (5th Cir. 2004), overruled by United States v. Reyes-Contreras, 910
F.3d 169, 181-82 (5th Cir. 2018) (en banc); United States v. Shelton, 325 F.3d
553, 557-59 (5th Cir. 2003); United States v. Martinez, 962 F.2d 1161, 1168-69
& n.14 (5th Cir. 1992).
      Because Brown failed to show that the district court more likely than not
relied on the residual clause in concluding that he had three prior violent
felony convictions under § 924(e), Johnson is not a jurisdictional predicate for
Brown’s § 2255 motion. See Clay, 921 F.3d at 558-59. Therefore, the district
court did not have jurisdiction to reach the merits of Brown’s § 2255 motion.
See id.; Wiese, 896 F.3d at 724-26. Consequently, we VACATE the district
court’s judgment and DISMISS Brown’s § 2255 motion for lack of jurisdiction.




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