      Case: 17-50586     Document: 00514869552         Page: 1    Date Filed: 03/12/2019




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

                                    No. 17-50586                                 FILED
                                  Summary Calendar                          March 12, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TODD RICKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-950
                              USDC No. 1:06-CR-206-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Todd Ricks, federal prisoner # 83035-180, is serving a lengthy sentence
for drug and firearm crimes. His sentence was enhanced under 18 U.S.C.
§ 924(e) of the Armed Career Criminal Act (ACCA), based on prior convictions
for   Texas     burglaries     that    were    deemed      “violent    felonies”         under




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50586    Document: 00514869552     Page: 2   Date Filed: 03/12/2019


                                 No. 17-50586

§ 924(e)(2)(B)(ii). We affirmed the conviction and sentence and denied Ricks’s
first 28 U.S.C. § 2255 motion.
      When Ricks was sentenced, violent felonies were defined in pertinent
part as certain enumerated crimes, including generic burglary, or any crime
involving “conduct that presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B)(ii); see Mathis v. United States, 136 S. Ct. 2243, 2247-
48 (2016).   The latter definition, known as the residual clause, was later
invalidated by Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). Johnson
was made retroactive to cases on collateral review. Welch v. United States, 136
S. Ct. 1257 (2016).
      After Ricks moved for authorization to file a successive § 2255 motion
citing Johnson and Mathis, we granted authorization but explained that it was
“tentative in the sense that if the district court concludes, after a thorough
review, that Ricks has not satisfied the requirements for filing a successive
motion, the district court must dismiss the motion.”
      In his successive § 2255 motion in the district court, Ricks argued that
his Texas burglary convictions could not be used to enhance his sentence
because they were neither generic burglaries in light of Mathis nor violent
felonies in light of Johnson. The district court denied the motion on the merits
and applied this court’s then-controlling precedent holding that Texas burglary
was generic burglary as contemplated by § 924(e)(2)(B)(ii). See United States
v. Uribe, 838 F.3d 667, 670-71 (5th Cir. 2016), overruled by United States v.
Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc).
      Shortly thereafter, we overruled Uribe and held that Texas burglaries
were not generic burglaries and thus could not be used to enhance sentences
under § 924(e). See Herrold, 883 F.3d at 520-21, 529. We thus granted Ricks
a certificate of appealability (COA) on whether “he no longer qualifies for



                                       2
    Case: 17-50586    Document: 00514869552      Page: 3   Date Filed: 03/12/2019


                                 No. 17-50586

ACCA sentencing as a result of changes in the law concerning ACCA predicate
offenses, particularly the classification of Texas burglary offenses.”
      We first must determine whether the district court had jurisdiction to
address the merits of the successive § 2255 motion, because if it did not, then
we also lack jurisdiction to reach the merits. See United States v. Wiese, 896
F.3d 720, 723-24 (5th Cir. 2018). Wiese is on point and controls the resolution
of Ricks’s appeal.
      Herrold, unlike Johnson, offers no basis for a successive § 2255 motion
because it did not announce “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court.” § 2255(h)(2); see Wiese,
896 F.3d at 725-26. Accordingly, Ricks must establish that Johnson is the
basis for his successive § 2255 motion. See id. at 724-25. To do so, he must
show that the sentencing court imposed the ACCA enhancement by relying on
the residual clause that Johnson invalidated. See id.
      Under the most favorable standard for Ricks, he must show that the
sentencing court “may have” relied on the residual clause. See id. When Ricks
was sentenced in March 2008, all violations of the Texas burglary statute were
deemed generic burglary. See id. at 725. Thus, “at the time of sentencing,
there was absolutely nothing to put the residual clause on the sentencing
court’s radar.” Id. Nothing about the record, the legal environment, or other
relevant circumstances suggests that sentencing court may have relied on the
residual clause.
      Because Ricks’s sentence was not based on the residual clause, his
successive § 2255 motion was not based on Johnson and did not meet the
requirements of § 2255(h)(2). Consequently, we VACATE the district court’s
judgment and DISMISS the § 2255 motion for lack of jurisdiction. See Wiese,
896 F.3d at 726.



                                        3
