     Case: 19-20487      Document: 00515466921         Page: 1    Date Filed: 06/25/2020




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

                                                                              FILED
                                                                           June 25, 2020
                                      No. 19-20487
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff- Appellee

v.

JOSHUA ROBERT BYRD,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-163-1
                             USDC No. 4:18-CV-3409


Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Joshua Robert Byrd, federal prisoner # 23998-479, who pleaded guilty to
felony possession of a firearm, seeks a certificate of appealability (COA) to
appeal the district court’s denial of his 28 U.S.C. § 2255 motion and its grant
of the Government’s motion for a judgment on the record. He argues that his
guilty plea was involuntary because he was not advised that his relevant
conduct could be used to enhance his sentence; that sentencing him based upon


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20487     Document: 00515466921      Page: 2   Date Filed: 06/25/2020


                                  No. 19-20487

his relevant conduct was unconstitutional based upon Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013); that
counsel was ineffective in connection with his plea for failing to advise him that
he could be sentenced based upon his relevant conduct; that counsel was
ineffective at sentencing and on appeal for failing to challenge the use of
relevant conduct in determining his sentence; and that the district court erred
in adopting the magistrate judge’s recommendation that summary judgment
be granted in favor of the Government. He abandons any challenge to the
district court’s denial of his claim that his prior Texas conviction for aggravated
robbery no longer constitutes a crime of violence for purposes of U.S.S.G.
§ 2K2.1. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,
529 U.S. 473, 484 (2000). When the district court has rejected constitutional
claims on the merits, “[t]he [movant] must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack, 529 U.S. at 484. When the district court has
denied relief based on procedural grounds, a COA should be granted “when the
prisoner shows, at least, that jurists of reason would find it debatable whether
the [motion] stated a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Id. Byrd has failed to make the required showing.
See id. His motion for a COA is denied. To the extent that Byrd challenges
the denial of an evidentiary hearing, that ruling is affirmed. See Norman v.
Stephens, 817 F.3d 226, 234-35 (5th Cir. 2016).
      COA DENIED; AFFIRMED.




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