     Case: 18-10940   Document: 00515500997     Page: 1   Date Filed: 07/23/2020




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

                                                                   FILED
                                 No. 18-10940                  July 23, 2020
                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                          Clerk


             Plaintiff - Appellant

v.

MICHAEL DEWAYNE VICKERS,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      The government appeals the district court’s grant of Michael Dewayne
Vickers’s motion under 28 U.S.C. § 2255 and its subsequent judgment
resentencing Vickers to 98 months in prison.       The district court vacated
Vickers’s original sentence because it found that his Texas conviction for
murder no longer qualified as a predicate offense for a career offender sentence
enhancement under the Armed Career Criminal Act (ACCA) after Johnson v.
United States, 135 S. Ct. 2551 (2015). Applying the categorical approach, we
hold that the statute under which Vickers was convicted meets the ACCA’s
definition of a violent felony and VACATE the judgment below.
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                                       I.
      On July 25, 2006, Vickers was charged with being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). He proceeded to trial and was
convicted by a jury. In anticipation of sentencing, the probation officer
prepared a presentence investigation report (PSR), in which the officer
assigned Vickers a base offense level of 33 under the United States Sentencing
Guidelines after concluding that he was an ACCA career offender. The PSR
relied on Vickers’s prior Texas felony convictions for murder, burglary of a
habitation, and unlawful delivery of a controlled substance as predicate
offenses for the career offender enhancement. On July 5, 2007, the district
court sentenced Vickers to 190 months in prison, which the court then adjusted
to 168 months to give him credit for 22 months of time served in Texas state
prisons for a related state offense. This court affirmed the conviction and
sentence on direct appeal. See United States v. Vickers, 540 F.3d 356, 359 (5th
Cir. 2008).
      On December 8, 2015, Vickers filed the instant § 2255 motion alleging
that his prior convictions no longer qualify as predicate offenses under the
ACCA in light of Johnson. The district court appointed counsel and allowed
Vickers to seek authorization from this court to pursue a successive § 2555
motion. This court granted authorization for Vickers to challenge his sentence
based on his argument that his Texas murder conviction no longer qualifies as
a predicate offense but denied his request to challenge his sentence based on
the argument that his Texas burglary conviction no longer qualifies.
      Vickers filed an amended § 2255 motion in the district court. Relying on
our court’s case law distinguishing between direct and indirect force, which has
since been overruled by United States v. Reyes-Contreras, 910 F.3d 169, 187
(5th Cir. 2018) (en banc), the magistrate judge recommended granting the
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motion. The government filed objections to the magistrate judge’s findings and
recommendations. The district court overruled the objections, adopted the
magistrate judge’s conclusions, and vacated Vickers’s sentence. The court held
a new sentencing hearing on June 27, 2018.
      The government timely appealed from the criminal judgment after
Vickers was resentenced.


                                      II.
      A.    Jurisdiction to Review the Court’s § 2255 Order
      As an initial matter, Vickers argues that the government did not
properly appeal the district court’s order granting Vickers’s § 2255 motion
because it filed its notice of appeal from the criminal judgment after his
resentencing rather than from the district court order granting the motion and
vacating his original sentence. The district court first entered a judgment
vacating Vickers’s original sentence on June 5, 2018. It then resentenced
Vickers and entered another judgment on June 27, 2018. The government filed
its notice of appeal on July 17, 2018. Vickers asserts that, because the notice
of appeal is timely only as to the second judgment and was filed in the criminal
docket, it applies only to the resentencing, meaning that the government
cannot challenge the district court’s order vacating his original sentence.
      We disagree. The government’s notice of appeal refers to both the
criminal and civil cases, and it appeals from “the final judgment and sentence
imposed after granting Section 2255 relief.” Further, the government could not
have appealed directly from the civil judgment vacating Vickers’s sentence. In
a § 2255 case, when “what was appropriately asked and appropriately granted
was the resentencing of the petitioner[], it is obvious that there could be no
final disposition of the § 2255 proceedings until the petitioner[] [has been]
resentenced.” Andrews v. United States, 373 U.S. 334, 340 (1963); see also
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United States v. Hayes, 532 F.3d 349, 352 (5th Cir. 2008) (explaining that
Andrews held that “when a § 2255 petitioner is granted a resentencing, the
government may not appeal that finding until after the resentencing occurs”).
Thus, the government had no choice but to wait until Vickers was resentenced
to appeal the district court’s order granting the § 2255 motion. See 28 U.S.C. §
1291 (granting this court jurisdiction over appeals from “final decisions”).
      Vickers does not cite a single instance in which this court has required
the government to file separate notices of appeal from the criminal and civil
judgments in order to challenge the grounds for granting a § 2255 motion.
Indeed, this court has considered both a revised criminal sentence and the
issues raised in the § 2255 motion leading to the revised sentence based on a
single notice of appeal filed after the defendant was resentenced. See Hayes,
532 F.3d at 352–53. Accordingly, the government’s notice of appeal was proper,
and we may review both the order vacating the original conviction and the
district court’s new sentence.
      B.    Vickers’s Texas Murder Conviction
      The government seeks reversal of the district court’s holding that
Vickers’s Texas murder conviction does not qualify as a violent felony. Because
the government properly objected below, we review the district court’s order de
novo. United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006). We agree with
the government that, in light of our 2018 en banc decision in Reyes-Contreras,
which was decided while this appeal was pending, the district court’s holding
no longer reflects the law of this circuit.
      Title 18 U.S.C. § 922(g)(1), the federal statute under which Vickers was
convicted, provides, “[i]t shall be unlawful for any person . . . who has been
convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or ammunition.” Id. §
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922(g)(1). A person with three qualifying convictions “for a violent felony or a
serious drug offense, or both, committed on occasions different from one
another” who violates § 922(g) is subject to a mandatory minimum sentence of
fifteen years in prison. 18 U.S.C. § 924(e)(1). Vickers received this sentencing
enhancement because he was previously convicted of the Texas state crimes of
murder, burglary of a habitation, and delivery of a controlled substance.
      To determine whether a crime falls within the federal definition of a
violent felony, we employ the categorical approach. Mathis v. United States,
136 S. Ct. 2243, 2248 (2016). Under the categorical approach, courts “‘look only
to the statutory definitions’—i.e., the elements—of [an offense], and not ‘to the
particular facts underlying those convictions.’” Descamps v. United States, 570
U.S. 254, 261 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things
the ‘prosecution must prove to sustain a conviction.’” Mathis, 136 S. Ct. at 2248
(quoting Black’s Law Dictionary 634 (10th ed. 2014)). “[T]he prior crime
qualifies as an ACCA predicate if, but only if, its elements are the same as, or
narrower than, those of the generic offense.” Id. at 2247. The “generic offense”
is “the offense as commonly understood,” provided in the ACCA. Id. “[I]f the
crime of conviction covers any more conduct than the generic offense, then it is
not an ACCA [predicate]—even if the defendant’s actual conduct (i.e., the facts
of the crime) fits within the generic offense’s boundaries.” Id. at 2248.
      To prevail, a defendant must show that the state offense is broader than
the generic federal offense, and “[h]e must also show ‘a realistic probability,
not a theoretical possibility, that the State would apply its statute to conduct
that falls outside the generic definition of the crime.’” United States v. Castillo-
Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Merely pointing to plausible
interpretations of the statutory text in a vacuum is not enough. Id. Thus, a
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defendant must point to case law from the relevant state courts actually
applying the state law in a manner that is broader than the federal definition.
Id. at 222–23.
       A “violent felony” under the ACCA includes any felony that “has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” 1 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has defined
the term “physical force” as “violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v. United States, 559 U.S.
133, 140 (2010) (emphasis omitted). Texas Penal Code § 19.02 provides that a
person commits murder when he:
       (1) intentionally or knowingly causes the death of an individual;

       (2) intends to cause serious bodily injury and commits an act
       clearly dangerous to human life that causes the death of an
       individual; or

       (3) commits or attempts to commit a felony, other than
       manslaughter, and in the course of and in furtherance of the
       commission or attempt, or in immediate flight from the
       commission or attempt, he commits or attempts to commit an act
       clearly dangerous to human life that causes the death of an
       individual.

Tex. Penal Code Ann. § 19.02. 2 Vickers argues that felony murder, as defined
in § 19.02(3), which occurs when a person commits “an act clearly dangerous


1       In Johnson, the Supreme Court held that the so-called “residual clause” of the
definition, which includes any crime that “otherwise involves conduct that presents a serious
potential risk of physical injury to another,” is unconstitutionally vague. 135 S. Ct. at 2557.
To prevail, therefore, the government now must argue that Texas murder qualifies as a
violent felony under § 924(e)(2)(B)(i), quoted above, known as the force clause. See United
States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005) (defining this clause as the “Force
Clause”).
2       “[T]his court examines the statutory elements as they existed at the time the
defendant committed the offense,” United States v. Clay, 921 F.3d 550, 557 n.2 (5th Cir.
2019), as revised (Apr. 25, 2019), which for Vickers was 1982. Texas Penal Code § 19.02 was
the same in 1982 as it is today, except that in 1982 the statute referred to “voluntary or
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                                   No. 18-10940
to human life that causes the death of an individual,” does not have as an
element the use of physical force against another person. The district court
agreed because it found that felony murder involves only indirect force, which,
at that time, was outside of the federal definition of “physical force.”
      In Reyes-Contreras, our en banc court announced an expanded reading
of the term “force” for an identically worded federal definition appearing in §
2L1.2 of the Sentencing Guidelines. 910 F.3d at 182. We held that “for purposes
of identifying a conviction as a [crime of violence], there is no valid distinction
between direct and indirect force.” Id. Thus, actions such as assisting in suicide
are crimes of violence under Reyes-Contreras. Id. We also clarified that, based
on Voisine v. United States, 136 S. Ct. 2272 (2016), “the ‘use of force’ . . . can
include knowing or reckless conduct.” Reyes-Contreras, 910 F.3d at 183.
Finally, we held that bodily contact is not required to show a use of force,
meaning that causing injury or creating a risk of injury can be a use of force.
Id. at 183–84. Therefore, under the broad conception of force described in
Reyes-Contreras, even felony murder involves “physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B)(i).
      Vickers argues that, despite Reyes-Contreras, felony murder still does
not involve the “use” of force because the term “use” requires an active and
knowing application of force, and a person could be convicted of felony murder
for applications of force that are accidental or unknowing. The Supreme Court
has held that knowing or intentional applications of force qualify as uses of
force. United States v. Castleman, 572 U.S. 157, 169–70 (2014). It has also held
that reckless conduct can be a use of force. Reyes-Contreras, 910 F.3d at 183;
Voisine, 136 S. Ct. at 2279 (“[T]he word ‘use’ does not exclude from § 922(g)(9)’s



involuntary manslaughter” in the definition of felony murder. See Ex parte Easter, 615
S.W.2d 719, 720 (Tex. Crim. App. 1981) (quoting the 1981 version of the statute).
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compass an act of force carried out in conscious disregard of its substantial risk
of causing harm.”). Conversely, negligent or merely accidental conduct does not
qualify as a use of force. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). A person uses
force only when he or she has “the understanding that [the action] is
substantially likely to [cause harm].” Voisine, 136 S. Ct. at 2279; see also
United States v. Aguilar-Alonzo, 944 F.3d 544, 550 (5th Cir. 2019) (“In a variety
of criminal statutory contexts, we have consistently interpreted the ordinary
and natural meaning of the verb ‘use’ to require active employment of
something, as has the Supreme Court.”).
      Vickers relies on Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007)
to argue that felony murder includes negligent or accidental uses of force. In
Lomax, the Texas Court of Criminal Appeals held that the felony murder
statute evinces a “clear legislative intent to plainly dispense with a culpable
mental state” based on the “historical purpose of the felony-murder rule . . . to
make a person guilty of an ‘unintentional’ murder when he causes another
person’s death during the commission of some type of a felony.” Id. at 305.
Thus, under Lomax, Vickers contends that Texas felony murder covers
negligent or accidental conduct that would not be a “use” of force. See Leocal,
543 U.S. at 9.
      Lomax is inapplicable here because it was decided in 2007, more than 20
years after Vickers’s conviction. We consider only the state law as it existed at
the time of Vickers’s 1982 murder conviction. The Supreme Court has held that
“[t]he only way to answer th[e] backward-looking question” of whether a
defendant’s prior conviction is a qualifying predicate under the ACCA “is to
consult the law that applied at the time of that conviction.” McNeill v. United
States, 563 U.S. at 820; see also Descamps, 570 U.S. at 295 n.5 (Alito, J.,
dissenting) (“The majority suggests that California law is ambiguous as to this
requirement, but any confusion appears to have arisen after petitioner’s 1978
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conviction and is therefore irrelevant for purposes of this case.” (citation
omitted)). In McNeill, the defendant argued that the court should apply the
state law as it existed at the time of the federal sentencing, and the Supreme
Court rejected this approach because that “argument overlooks the fact that
ACCA is concerned with convictions that have already occurred.” 563 U.S. at
820. Thus, we must apply the state court interpretation at the time of Vickers’s
conviction.
      The Texas Court of Criminal Appeals’ interpretation of Texas’s felony
murder statute at the time of Vickers’s conviction is provided by Rodriquez v.
State, 548 S.W.2d 26 (Tex. Crim. App. 1977), in which the Court of Criminal
Appeals held that “because § 19.02(a)(3) is silent as to, and does not plainly
dispense with, the culpable mental state required for the underlying felony
committed or attempted . . . the culpable mental state shall . . . be one of intent,
knowledge, or recklessness.” Id. at 28. Thus, until 2007, when Lomax changed
the prevailing standard, felony murder in Texas required a mental state of
recklessness or higher, meaning that all defendants convicted under this
statute would have taken active steps to “use” physical force—as required by
the ACCA federal definition. Aguilar-Alonzo, 944 F.3d at 550 (explaining the
federal definition of “use”). Indeed, the Lomax opinion states explicitly that it
is announcing a change in the law: “we decide to overrule . . . the holding in
Rodriquez that a culpable mental state is required for ‘the act of murder’ in a
felony-murder prosecution and that the mental state of the underlying felony
supplies this culpable mental state.” 233 S.W.3d at 307. The Court of Criminal
Appeals makes clear that before this change, Rodriquez was the prevailing law.
      For these reasons, Vickers’s Texas murder conviction qualifies as a
violent felony for purposes of the career offender enhancement.




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                                 No. 18-10940
    C.    Vickers’s Burglary and Delivery of a Controlled Substance
Convictions

      Finally, Vickers contends that even if his murder conviction was a
violent felony, his convictions for burglary and delivery of a controlled
substance do not qualify as predicate offenses. We decline to consider these
arguments because Vickers did not receive authorization to include them in a
successive § 2255 petition.
      Vickers had to apply for authorization to file a successive § 2255 motion
raising the claims made in this appeal. He requested authorization to
challenge his sentence enhancement based on both his Texas murder and
Texas burglary convictions. This court authorized the challenge only as it
related to his Texas murder conviction; it denied authorization to argue that
his Texas burglary conviction did not qualify as a predicate offense. In his
amended filing before the district court after counsel was appointed, Vickers
argued only that his murder conviction was not a violent felony. Thus, the
district court had no opportunity to consider whether Vickers’s other
convictions qualify as predicate offenses, and indeed it had no subject matter
jurisdiction to consider such unauthorized successive claims even if Vickers
had raised them. Crone v. Cockrell, 324 F.3d 833, 838 (5th Cir. 2003) (holding
that the district court “did not have subject matter jurisdiction over Crone’s
[successive § 2255] application because Crone did not obtain an order from this
Court authorizing the district court to consider the successive application”).
Vickers cannot now ask us to consider his challenges to his other convictions
in the first instance. United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018),
as revised (Aug. 14, 2018) (“If the district court did not have jurisdiction to
reach the merits, naturally, we cannot reach the merits on appeal.”); see also
28 U.S.C. § 2244(b)(4) (requiring the dismissal of any claim presented in a


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second or successive § 2255 petition “unless the applicant shows that the claim
satisfies the requirements of this section”).


                                       III.
      Because Vickers’s Texas murder conviction qualifies as a violent felony
under the ACCA, we VACATE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.




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