     Case: 17-60210      Document: 00514742042         Page: 1    Date Filed: 11/29/2018




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

                                      No. 17-60210                        FILED
                                                                   November 29, 2018
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

              Plaintiff - Appellee

v.

CURTIS CRAVEN,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:16-CV-91


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Curtis Craven was given an enhanced sentence under the Armed Career
Criminal Act (ACCA). He filed a § 2255(a) motion, which the district court
dismissed as untimely. We granted a certificate of appealability (COA) as to
that timeliness decision, and now reverse.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 17-60210


                            FACTS AND PROCEEDINGS
      In 2008, Craven pleaded guilty to being a felon in possession of a firearm.
In the plea agreement, Craven waived his right to appeal his conviction and
sentence and his right “to contest the conviction and sentence or the manner
in which the sentence was imposed in any post-conviction proceeding,
including . . . a motion brought under Title 28, United States Code, Section
2255.”
      The presentence report (PSR) listed Craven’s prior convictions,
including: (1) two Florida convictions for burglary of a conveyance; (2) one
Florida conviction for burglary; (3) one Florida conviction for possession of a
short-barreled shotgun; (4) one Mississippi conviction for commercial burglary;
(5) one Mississippi conviction for aggravated assault; and (6) one Mississippi
conviction for felony taking of a motor vehicle. 1 The probation office determined
that Craven was subject to an enhanced sentence because commercial
burglary, possession of a short-barreled shotgun, aggravated assault, and
felony taking of a motor vehicle were “violent felonies” under the ACCA.
      Craven objected to the characterization of all but the aggravated assault
conviction. The district court overruled Craven’s objections and adopted the
PSR in full. The court sentenced Craven to the ACCA mandatory minimum
sentence of 180 months.
      Following the Supreme Court’s ruling in Johnson v. United States, 135
S. Ct. 2551 (2015), invalidating the residual clause of 18 U.S.C.
§ 924(e)(2)(B)(ii), Craven filed a 28 U.S.C. § 2255(a) motion to vacate, set aside,
or correct his sentence. He argued that the convictions on which the court


      1   Craven also had convictions for grand larceny, grand theft, dealing in stolen
property, and accessory after the fact to armed robbery, which are not relevant to our
decision.
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relied for the ACCA enhancement could have qualified only under the residual
clause, so after Johnson he should no longer be subject to an enhanced
sentence. The government moved to dismiss that motion, contending it was
time-barred and, alternatively, that Craven had waived his right to file it. The
district court granted the government’s motion, dismissing Craven’s motion as
untimely.
      This court granted Craven a COA as to the following issue: “whether the
district court erred by dismissing Craven’s § 2255 motion as time-barred based
on its determination that Johnson did not affect the sentence under the
ACCA.”
                                   DISCUSSION
      “We review de novo the district court’s conclusion that [Craven’s] motion
is untimely.” United States v. Rodriguez, 858 F.3d 960, 961 (5th Cir. 2017). A
§ 2255 motion must be filed within a year of the latest of four qualifying events.
28 U.S.C. § 2255(f). As relevant here, this is the latest of either “the date on
which the judgment of conviction bec[ame] final” or “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” Id. § 2255(f)(1), (3).
      Craven contends his motion is timely under § 2255(f)(3) because it was
filed within a year of the Supreme Court deciding Johnson. The parties do not
dispute that Johnson recognized a new right that has been made retroactively
applicable. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Nor do
they dispute that Craven filed his motion within a year of Johnson.
      The district court did not analyze Craven’s motion under § 2255(f)(3).
Nor did it address the ACCA determination made at sentencing.
      The threshold question to determine the timeliness of Craven’s motion
is whether he asserted a Johnson claim, i.e., whether he claimed that he was
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sentenced under the ACCA’s residual clause. Craven argued in his § 2255
motion that “he faced a mandatory minimum sentence under the residual
clause of the ACCA.” He contends the court did not identify at sentencing on
which clause(s) it was relying, but that the possible relevant convictions could
not qualify as violent felonies except under the residual clause. The
government argues that the district court did not actually rely on the residual
clause at sentencing, so Craven’s claim cannot be based on Johnson and is
therefore untimely.
       We have not decided whether to timely file an initial § 2255 motion the
movant need only assert a Johnson claim or whether he must also demonstrate
that the sentencing court relied on the residual clause. 2 Cf. United States v.
Wiese, 896 F.3d 720, 724 (5th Cir. 2018) (holding that in the context of a
successive § 2255 motion, to prove the court has jurisdiction the movant must
show “the sentencing court relied on the residual clause in making its
sentencing determination”). Nor have we decided—if the movant must make
such a showing—what standard should be used to determine whether the court
relied on the residual clause for Johnson purposes. For successive § 2255
motions, we have noted without deciding that “the ‘more likely than not’
standard appears to be the more appropriate standard,” as opposed to
requiring a showing that the court “may have” relied on the residual clause.
Id. at 724 (stating that the more demanding standard “comports with . . . the



       2 Compare Beeman v. United States, 871 F.3d 1215, 1219–21 (11th Cir. 2017) (finding
timely a motion in which the defendant “claimed that when sentencing him . . . the district
court relied on the residual clause” but denying this claim on the merits), and United States
v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (holding that “in order to be timely under
§ 2255(f)(3), a § 2255 motion need only ‘invoke’ the newly recognized right” but finding on the
merits that the movant had been sentenced under the enumerated clause), with Dimott v.
United States, 881 F.3d 232, 236 (1st Cir. 2018) (finding § 2255 motions untimely because
“the record reflects that [the movants] were sentenced under the ACCA’s enumerated clause,
not the residual clause”).
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stringent and limited approach of AEDPA to successive habeas applications”);
see also United States v. Taylor, 873 F.3d 476, 479–81 (5th Cir. 2017)
(cataloguing various circuits’ standards for the jurisdictional showing on
successive § 2255 motions). Even if Craven had to show it was more likely than
not that the sentencing court relied on the residual clause to make his motion
timely, he is able to do so.
      The district court did not specify at the sentencing hearing what
convictions qualified under the ACCA, or under what clause. However, the PSR
adopted in full by the court laid out the reasoning for ACCA enhancement. See
Wiese, 896 F.3d at 724–25 (to determine potential reliance on the residual
clause, we look to the sentencing record, the PSR and other relevant materials
before the district court, and the law at the time of sentencing). The PSR
identified Craven’s Mississippi commercial burglary, possession of a short-
barreled shotgun, felony taking of a motor vehicle, and aggravated assault as
the violent felonies that subjected him to ACCA enhancement.
      The PSR based its violent felony determinations for the possession of a
short-barreled shotgun and car theft convictions on Eighth Circuit cases
finding those crimes to be violent felonies under the ACCA’s residual clause
and an analogous sentencing guidelines provision. See United States v.
Vincent, 519 F.3d 732, 733 (8th Cir. 2008), vacated on other grounds, Vincent
v. United States, 555 U.S. 1133 (2009); United States v. Walker, 494 F.3d 688,
693 (8th Cir. 2007); United States v. Sprouse, 394 F.3d 578, 580–81 (8th Cir.
2005). Thus, it is more likely than not that the district court relied on the
residual clause for at least two of the four convictions used to enhance Craven’s
sentence. At least one of these convictions was necessary to sustain the
enhancement. See 18 U.S.C. § 924(e)(1) (requiring three previous qualifying
convictions).


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                                  No. 17-60210
      Craven asserted a Johnson claim, and it is more likely than not that he
was sentenced under the residual clause. The district court erred in dismissing
Craven’s § 2255 motion as time-barred.
      Whether any reliance on the residual clause is harmless because Craven
still qualifies for enhancement is beyond the scope of the COA, as is the
question of whether Craven waived his right to bring his motion in the first
instance. See United States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012) (“We
do not consider . . . issues not included in a COA.”).
                                  CONCLUSION
      In light of the foregoing, we REVERSE the district court’s dismissal on
timeliness grounds and REMAND for further proceedings consistent with this
opinion.




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