     Case: 18-10025      Document: 00515380876         Page: 1    Date Filed: 04/14/2020




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

                                                                              FILED
                                    No. 18-10025                          April 14, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

RYAN DENNIS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-577


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       In December 2008, a jury convicted Ryan Dennis of possessing a firearm
after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Although the
statutory maximum for such an offense is generally ten years in prison, 18
U.S.C. § 924(a)(2), because Dennis was found to have had three prior
convictions for violent felonies under the Armed Career Criminal Act (ACCA),



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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id. § 924(e), he was subject to a statutory minimum of fifteen years. The
district court sentenced Dennis under the ACCA to 288 months in prison, to be
followed by a three-year supervised release term.           We affirmed on direct
appeal, and the Supreme Court denied certiorari. United States v. Dennis, 365
F. App’x 591, 592–95 (5th Cir.), cert. denied, 561 U.S. 1016 (2010). Dennis filed
an unsuccessful § 2255 motion, and we denied a certificate of appealability
(COA).
      In 2016, Dennis moved for authorization to file a second or successive
§ 2255 motion, arguing that he was improperly sentenced under the ACCA in
light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015). We granted authorization to file. In re Dennis, Case No. 16-10581
(5th Cir. Jun. 28, 2016).     The district court denied relief on the merits,
concluding that, even without relying on the residual clause, Dennis’s criminal
history met the requirements for three violent felonies under the still-valid
portions of the ACCA. Dennis timely appealed.
      Although the Government does not address this issue in any detail in its
briefing and the district court did not address it directly, we are required to
address our jurisdiction sua sponte, if necessary. See United States v. Wiese,
896 F.3d 720, 723 (5th Cir. 2018), cert. denied, 139 S. Ct. 1328 (2019); Solsona
v. Warden, F.C.I., 821 F.2d 1129, 1132 n.2 (5th Cir. 1987); see also United
States v. Ricks, 756 F. App’x 488, 489 (5th Cir.) (addressing the jurisdictional
issue for a successive § 2255 motion based on Johnson after granting a COA as
to the district court’s merits determination), cert. denied, 140 S. Ct. 327 (2019).
      “A second or successive habeas application must meet strict procedural
requirements before a district court can properly reach the merits of the
application.” Wiese, 896 F.3d at 723; see 28 U.S.C. §§ 2244(b), 2255(h). A
prisoner pursuing a successive § 2255 motion must pass through two
jurisdictional “gates” to have his motion heard on the merits. Wiese, 896 F.3d
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at 723.        Dennis has passed through the first gate by obtaining our
authorization to file a successive motion. See id. While Dennis was required
to make only a prima facie showing to obtain authorization for the successive
motion from this court, to pass through the second gate, he “must actually
prove at the district court level that the relief he seeks relies . . . on a new,
retroactive rule of constitutional law.” Wiese, 896 F.3d at 723; see 28 U.S.C.
§ 2255(h)(2). 1
         A prisoner making a Johnson claim must prove that “it was more likely
than not that he was sentenced under the residual clause.” United States v.
Clay, 921 F.3d 550, 559 (5th Cir. 2019), cert. denied, 140 S. Ct. 866 (2020). If
he fails to make that showing, we have jurisdiction only for the purpose of
correcting the district court’s error in considering the cause of action. Wiese,
896 F.3d at 723, 726 (noting also that in such a situation, this court would
vacate the district court’s judgment and dismiss the successive § 2255 motion
for lack of jurisdiction).
         In considering the jurisdictional question at issue here, we “must look to
the law at the time of sentencing to determine whether a sentence was imposed
under” the now-invalid residual clause or one of the remaining clauses. Wiese,
896 F.3d at 724; see also Clay, 921 F.3d at 556. We may also consider the
sentencing record, the legal landscape at the time of sentencing, the pre-
sentence report (PSR), and other relevant materials before the sentencing
court.       Wiese, 896 F.3d at 725.       Changes to the law that occurred after
sentencing should not be considered, unless the change is a new rule of




         1Dennis maintains that despite the language in Wiese, the second gateway is not in
fact “jurisdictional” and that the Government has waived or forfeited the issue by not raising
it before the district court. We are bound by our precedent, not the position of the U.S.
Department of Justice cited by Dennis.
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constitutional law announced by the Supreme Court and made retroactive to
cases on collateral review. Id. at 725–26.
       According to the charging instruments, in February 1996 Dennis caused
bodily injury to a victim by striking him with a firearm and used or exhibited
a deadly weapon while committing the assault. On July 20, 2004, Dennis
intentionally or knowingly threatened bodily injury to two separate victims
and used or exhibited a deadly weapon during the assaults. In a separate event
on July 23, 2004, Dennis threatened imminent bodily injury to a victim and
used a deadly weapon during the assault. Dennis argues that his prior Texas
aggravated assault convictions are not violent felonies because assault under
Texas Penal Code § 22.01 can be committed in ways that do not necessarily
involve the use of physical force and can be committed with recklessness as
opposed to specific intent to use force. He thus contends that, at the time of
his sentencing, the law would have established that assault did not include as
an element the requisite use of force.
       We conclude that Dennis has failed to show that it is “more likely than
not” that the sentencing court relied upon the residual clause. The record does
not reflect that the sentencing court considered the residual clause. While we
have held that the district court is not permitted to rely solely on the PSR’s
characterization of a prior conviction for sentence-enhancement purposes, see
United States v. Garza-Lopez, 410 F.3d 268, 273–75 (5th Cir. 2005), in Wiese
we noted that this court may look to the PSR in determining whether the
sentencing court relied on the residual clause. 896 F.3d at 725. The PSR
reflects that Dennis was convicted of aggravated assault with a deadly weapon,
which is codified at § 22.02(a)(2) of the Texas Penal Code. 2 Looking at “the


       2  Dennis contends that the district court was not permitted to rely upon the PSR, but
the issue here is whether Dennis has shown that the district court relied upon the residual
clause. The PSR supports that the district court did not.
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                                        No. 18-10025
landscape,” it is true that at the time of Dennis’s sentencing in 2009, we had
held that a violation of § 22.01, standing alone, did not fall under the elements
clause in U.S.S.G. § 2L1.2 because it may be committed by acts that do not
involve violence or a direct use of force.               See United States v. Villegas-
Hernandez, 468 F.3d 874, 878–85 (5th Cir. 2006). 3 But we had reached a
different conclusion (albeit addressing an enumerated-offense issue) where the
aggravating factor was a deadly weapon. See United States v. Guillen-Alvarez,
489 F.3d 197, 199–201 (5th Cir. 2007) (holding that aggravated assault with a
deadly weapon (a knife) is categorically a crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii)). Opinions issued after Dennis’s sentencing also suggest
that “the landscape” was not reliant on the residual clause. See, e.g., United
States v. Guzman, 797 F.3d 346, 347–48 (5th Cir. 2015) (per curiam).
       As we held in Clay, “if ‘it is unclear from the record whether the
sentencing court had relied on the residual clause,’ the prisoner—who bears
the burden of proof—‘loses.’” 921 F.3d at 558 (quoting Beeman v. United States,
871 F.3d 1215, 1224–25 (11th Cir. 2017)); see also United States v. Medina, No.
17-11176, 2020 WL 414815, at *3 (5th Cir. Jan. 24, 2020) (per curiam). We
conclude that Dennis failed to meet his burden. Therefore, we conclude that
the district court lacked jurisdiction to address the merits of Dennis’s claims. 4
We thus MODIFY the district court’s determination not to grant relief to



       3  The relevant holding was overruled in part in United States v. Reyes-Contreras, 910
F.3d 169, 181–82 (5th Cir. 2018) (en banc), but, of course, we recognize that the analysis in
the current case focuses on the sentencing hearing which predated Reyes-Contreras, such
that Villegas-Hernandez was good law at the time.
       4  If we did have jurisdiction, we would affirm the district court on the merits. See
United States v. Combs, 772 F. App’x 108, 109–10 (5th Cir. 2019) (citing United States v.
Albin Torres, 923 F.3d 420, 423–25 (5th Cir. 2019)), petition for cert. filed (U.S. Sept. 9, 2019)
(No. 19-5908); see also United States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir. 2019)
(holding that Texas aggravated assault qualifies as a crime of violence under 18 U.S.C.
§ 16(a) because it includes as an element the use of force), petition for cert. filed (U.S. July
19, 2019) (No. 19-5325).
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change it from a denial of Dennis’s successive § 2255 to a dismissal on the
ground that it lacked jurisdiction and, as modified, AFFIRM.




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