     Case: 17-60360      Document: 00515380140         Page: 1    Date Filed: 04/13/2020




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

                                                                          FILED
                                      No. 17-60360                    April 13, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


              Plaintiff – Appellee,

v.

ANDERSON ALEXANDER,

              Defendant – Appellant.


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-507
                             USDC No. 3:06-CR-34-1


Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       In July 2006, Anderson Alexander pleaded guilty to possessing a firearm
as a felon. Based on three prior convictions—two for drug offenses and one for
aggravated assault—he received a sentencing enhancement under the Armed
Career Criminal Act (“ACCA”). Alexander says an intervening Supreme Court
decision means his sentence violated the Constitution. But we lack jurisdiction
to reach the merits of his appeal. So we dismiss.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-60360     Document: 00515380140      Page: 2   Date Filed: 04/13/2020


                                  No. 17-60360

                                         I.

      On March 18, 2005, a police officer in Jackson, Mississippi, was driving
his patrol car down a local street. Alexander was driving toward the officer and
came close to causing a head-on collision. Then Alexander swerved—avoiding
a wreck and landing on the curb. The officer approached the car on the curb.
He spotted a 32-ounce can of Miller Lite between Alexander’s legs. A
subsequent search of the car uncovered a .22-caliber firearm as well as
suspected marijuana and crack cocaine under the driver’s seat. Jackson police
ran a criminal history check on Alexander. That search uncovered Alexander’s
prior felony convictions.
      Alexander pleaded guilty to possessing a firearm as a felon. See 18 U.S.C.
§ 922(g). ACCA provides sentencing enhancements for “a person who violates
section 922(g) of this title and has three previous convictions . . . for a violent
felony or a serious drug offense” committed on separate occasions. Id.
§ 924(e)(1). Alexander’s criminal record at the time of sentencing included
three felony convictions, all in Mississippi: (1) a 1977 conviction for delivering
marijuana, (2) a 1980 conviction for aggravated assault, and (3) a 2000
conviction for possession of cocaine with intent to distribute. The judge
determined that Alexander’s first and third convictions qualified as serious
drug offenses and that the second conviction qualified as a violent felony.
Because those convictions triggered an ACCA-enhanced sentence, the judge
sentenced Alexander to a fifteen-year mandatory minimum sentence and a
three-year term of supervised release.
      As part of his guilty plea, Alexander agreed to waive the right to contest
his conviction and sentence through a motion under 28 U.S.C. § 2255.
Nevertheless, in the years following his conviction, Alexander filed three


                                         2
     Case: 17-60360         Document: 00515380140        Page: 3     Date Filed: 04/13/2020


                                        No. 17-60360

unsuccessful § 2255 motions. The district court denied and dismissed the first
two motions. This appeal arises from Alexander’s third. 1
       In this § 2255 motion, Alexander argues that he should get the benefit of
the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015). Johnson held that ACCA’s residual clause is unconstitutionally vague. 2
See id. at 2562–63. Alexander says his conviction for aggravated assault could
constitute a “violent felony” under ACCA only by virtue of the (now-
unconstitutional) residual clause. That means, Alexander says, his sentence is
unconstitutional.
       The district court held otherwise. It found that Alexander’s conviction
for aggravated assault qualified as a violent felony under ACCA’s force clause,
and so Johnson was irrelevant to Alexander’s sentence. The court then denied
his motion and dismissed his case with prejudice. Alexander timely appealed,
and this court granted a certificate of appealability to consider whether the
district court erred in addressing the Johnson question.


       1  The Government did not attempt to enforce Alexander’s waiver before filing a Rule
28(j) letter almost seven months after the parties completed briefing on the merits. As we
have said before, if the Government does not care enough about the waiver to enforce it, we
generally will ignore it too. See, e.g., United States v. Wiese, 896 F.3d 720, 722 n.1 (5th Cir.
2018); United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006); cf. United States v. St. John,
625 F. App’x 661, 670 (5th Cir. 2015) (per curiam) (“[T]his court will not consider an issue
raised for the first time in a Rule 28(j) letter.”).
       2   ACCA defines a violent felony as:
       [A]ny crime punishable by imprisonment for a term exceeding one year . . . that
       (i) has as an element the use, attempted use, or threatened use of physical force
       against the person of another; or (ii) is burglary, arson, or extortion, involves
       use of explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). As relevant here, the first clause of this provision is known as the
“force clause” or the “elements clause” because it describes offenses that have the use of force
as an element. And the third clause of this provision (“or otherwise involves”) is known as
the “residual clause” because it served as a catchall for offenses that would not otherwise
qualify as violent felonies. See, e.g., Welch v. United States, 136 S. Ct. 1257, 1263 (2016).
                                               3
    Case: 17-60360     Document: 00515380140      Page: 4    Date Filed: 04/13/2020


                                  No. 17-60360

                                        II.
      We review de novo questions of law in the denial of a § 2255 motion.
United States v. Clay, 921 F.3d 550, 554 (5th Cir. 2019). But “[i]f the district
court did not have jurisdiction to reach the merits, naturally, we cannot reach
the merits on appeal.” Wiese, 896 F.3d at 723.
                                        A.
      We begin and end with jurisdiction. As ever, “[a]n appellate federal court
must satisfy itself not only of its own jurisdiction, but also of that of the lower
courts in a cause under review.” Mitchell v. Maurer, 293 U.S. 237, 244 (1934);
see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998);
MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir.
2019).
      In 28 U.S.C. §§ 2244(b) and 2255(h), Congress set strict jurisdictional
requirements for second or successive § 2255 motions. See Clay, 921 F.3d at
554. First, a prisoner must persuade this Court to grant him permission to file
a successive motion. Id. Alexander did that.
      Second, a “prisoner must actually prove at the district court level that
the relief he seeks relies either on a new, retroactive rule of constitutional law
or on new evidence.” Wiese, 896 F.3d at 723. To do so under the rule in Johnson,
a prisoner “must show that it was more likely than not that he was sentenced
under the residual clause.” Clay, 921 F.3d at 559. When “determining potential
reliance on the residual clause by the sentencing court,” a court can look to the
sentencing record and the background legal environment at the time of the
sentencing court’s decision, as well as the presentence investigation report
(PSR) and other relevant materials that were before that court. Wiese, 896 F.3d
at 725. “Where a prisoner fails to make the requisite showing before the district
court, the district court lacks jurisdiction . . . .” Clay, 921 F.3d at 554. In such

                                         4
    Case: 17-60360     Document: 00515380140      Page: 5    Date Filed: 04/13/2020


                                  No. 17-60360

cases, “our jurisdiction extends not to the merits but merely for the purpose of
correcting the error of the lower court in entertaining the suit.” Id. (internal
quotation marks omitted).
                                        B.
      Alexander has failed to “show that it was more likely than not that he
was sentenced under the residual clause.” Id. at 559. That is so because
Mississippi’s aggravated-assault statute is divisible, and the district court
could have determined Alexander’s violation of the relevant portion of the state
law was a violent felony under the force clause.
      First, the relevant statute of conviction is divisible. A statute is divisible
if it “list[s] elements in the alternative, and thereby define[s] multiple crimes.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see also United States v.
Lerma, 877 F.3d 628, 633–34 (5th Cir. 2017). Mississippi’s relevant statute
said someone committed aggravated assault if he:
      (a) attempt[ed] to cause serious bodily injury to another, or cause[d] such
          injury purposely, knowingly or recklessly under circumstances
          manifesting extreme indifference to the value of human life; or
      (b) attempt[ed] to cause or purposely or knowingly cause[d] bodily injury
          to another with a deadly weapon or other means likely to produce
          death or serious bodily harm.

1974 Miss. Laws 557 (codified as amended at MISS. CODE ANN. § 97-3-7(2)).
The plain text thus contains disjunctive statutory alternatives describing
different crimes. Likewise, Mississippi courts long have recognized the
different crimes contained in the statute. See, e.g., Ward v. State, 479 So. 2d
713, 715 (Miss. 1985). Therefore, the statute is “divisible.”
      Second, where a statute of conviction is divisible, “courts may look
beyond the statute to certain conclusive records made or used in adjudicating
guilt in order to determine which particular statutory alternative applies to

                                         5
    Case: 17-60360    Document: 00515380140     Page: 6   Date Filed: 04/13/2020


                                 No. 17-60360

the defendant’s conviction.” United States v. Bonilla-Mungia, 422 F.3d 316,
320 (5th Cir. 2005) (internal quotation marks omitted). These conclusive
records include the “charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms.” Johnson v. United States, 559 U.S. 133, 144
(2010). For example, we considered the indictment in United States v.
Montgomery, 402 F.3d 482, 486 (5th Cir. 2005). The question presented in that
case was whether a conviction for retaliation qualified for an ACCA
enhancement under the force clause. To answer that question, the court
examined “the indictment only to ‘pare down’ the statute—that is, to decide
under which branch of a disjunctive statute a defendant’s conviction falls.” Id.
      Here, materials that were before the district court indicate Alexander
was convicted for using a deadly weapon to cause serious bodily injury. The
PSR said, “according to the Indictment, on October 1, 1979, the defendant
caused bodily injury to Robert E. Vance by use of a pistol.” The sentencing
judge confirmed with Alexander that he had read and reviewed his PSR, and
that Alexander affirmed the facts within it as “true and correct.” In so doing,
Alexander affirmed the PSR’s recounting of his aggravated assault indictment.
That is sufficient to “pare down” the relevant statute to its second subsection—
the one that involves the use of a “deadly weapon.” See MISS. CODE ANN. § 97-
3-7(2)(b). And that, in turn, is sufficient to justify Alexander’s ACCA
enhancement under the force clause. See United States v. Torres-Diaz, 438 F.3d
529, 538 (5th Cir. 2006); United States v. Martinez, 962 F.2d 1161, 1168 (5th
Cir. 1992).
      Third, the rest of the sentencing record is no help to Alexander. At the
sentencing hearing, the judge did not say anything to suggest he relied on
ACCA’s residual clause. Nor did the judge explain whether he was applying

                                       6
    Case: 17-60360     Document: 00515380140    Page: 7   Date Filed: 04/13/2020


                                 No. 17-60360

the categorical approach or the modified categorical approach. That is
insufficient to carry Alexander’s burden to prove it is more likely than not that
the sentencing judge relied on the residual clause—and hence that Alexander’s
§ 2255 motion relies on Johnson.
      We have said before that jurisdiction requires more than a “theoretical
possibility” that a district court relied on the residual clause. Wiese, 896 F.3d
at 726; see also, e.g., United States v. Hernandez, 779 F. App’x 195, 199 (5th
Cir. 2019) (per curiam). In this case, however, Alexander has produced only
theoretical possibilities.
      DISMISSED.




                                       7
