     Case: 15-51050      Document: 00513936245         Page: 1    Date Filed: 04/03/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                    No. 15-51050
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                              April 3, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

ROY LEE WELLS, JR.,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:88-CR-32-1


Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Roy Lee Wells, Jr., federal prisoner # 40052-080, was sentenced in 1988
under the Armed Career Criminal Act (ACCA) to 480 months of imprisonment
and five years of supervised release. Wells filed a motion invoking Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015), which invalidated the ACCA’s
residual clause, and 28 U.S.C. § 2255. The motion was denied, and Wells
appealed.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51050    Document: 00513936245     Page: 2   Date Filed: 04/03/2017


                                 No. 15-51050

      Wells’s brief requests a certificate of appealability (COA), which must
issue for this court to exercise appellate jurisdiction. Gonzalez v. Thaler, 565
U.S. 134, 142 (2012) (§ 2254 case). Wells’s contention that Johnson applies
retroactively and implicates the constitutionality of his conviction under the
ACCA satisfies the threshold COA standard. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Nevertheless, we agree with the Government that Wells’s
claims are ultimately without merit in light of his three Texas controlled
substance offenses. These convictions are ACCA predicates separate from
residual clause offenses. See 18 U.S.C. § 924(e)(2)(A)(ii); United States v.
Vickers, 540 F.3d 356, 363–66 (5th Cir. 2008). Further briefing is therefore
unnecessary. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
      For these reasons, we GRANT Wells a COA; we GRANT the
Government’s motion for summary affirmance and AFFIRM; we DENY as
unnecessary the Government’s alternative request for additional time to file a
brief; and we DENY Wells’s motion to dismiss the indictment as moot.




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