     Case: 16-11384   Document: 00514194234        Page: 1   Date Filed: 10/12/2017




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

                                    No. 16-11384
                                                                            Fifth Circuit

                                                                          FILED
                                                                    October 12, 2017

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

LAWRENCE JAMES TAYLOR,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before CLEMENT, PRADO, and HAYNES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      We are tasked with deciding whether Lawrence James Taylor’s claim
that his sentence enhancement is no longer valid under the Armed Career
Criminal Act (“ACCA”) is constitutionally or statutorily based in light of the
district court’s conclusion that the now constitutionally defunct residual clause
“played no role” at his sentencing. We hold that Taylor’s claim is
constitutionally based and warrants relief under 28 U.S.C. § 2255.
                          FACTS AND PROCEEDINGS
      In 2006, Lawrence James Taylor pleaded guilty to possession of a firearm
by a convicted felon—which usually carries a maximum sentence of 10 years’
imprisonment. See 18 U.S.C. § 924(a)(2). The presentence report (“PSR”)
     Case: 16-11384        Document: 00514194234          Page: 2     Date Filed: 10/12/2017


                                        No. 16-11384


recommended an enhanced sentence under the ACCA because Taylor had two
“violent felony” 1 convictions for burglary of a building and one “crime of
violence” 2 conviction for injury to a child. See 18 U.S.C. § 924(e)(2)(B). In
accordance with the ACCA enhancement, the PSR calculated a guideline range
of 235 to 293 months’ imprisonment.
       Taylor objected to several aspects of the PSR. He did not object or claim,
however, that his Texas conviction for injury to a child was excluded as an
ACCA predicate. At his sentencing, Taylor conceded his injury-to-a-child
conviction was a “crime of violence.” The district court adopted the findings
and conclusions of the PSR and imposed a prison term of 260 months. Taylor
appealed his sentence, but did not contend that the district court erred when
it determined his injury-to-a-child conviction was an ACCA predicate. This
court affirmed. See United States v. Taylor, 263 F. App’x 402, 407 (5th Cir.
2008).
       Taylor subsequently filed two motions under § 2255 to vacate his
sentence. The district court denied relief as to both motions, and this court
affirmed.


       1  Under the ACCA, a “violent felony” means “any 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.
        § 924(e)(2)(B). The first clause is known as the “elements clause.” The beginning of (ii)
is the “enumerated offenses clause,” and the italicized portion of the text has become known
as the “residual clause.”
        2 “Crime of violence” was mistakenly used to refer to the injury-to-a-child offense

rather than “violent felony.” This mistake was of no legal consequence, though the
government argues Taylor’s failure to raise the matter at sentencing makes it more difficult
for him now to overcome the sentencing court’s finding that the residual clause played no role
in his sentence.
                                               2
    Case: 16-11384         Document: 00514194234        Page: 3    Date Filed: 10/12/2017


                                       No. 16-11384


      In 2015, the Supreme Court held that “imposing an increased sentence
under the residual clause of the [ACCA] violates the Constitution’s guarantee
of due process.” Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The
Court subsequently announced this was a new, substantive rule and therefore
applied retroactively. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
      Taylor sought assistance from the Federal Public Defender’s office
(“FPD”) to determine whether his injury-to-a-child conviction still counted as
an ACCA predicate after Johnson. The FPD moved the district court for
appointment as Taylor’s counsel. The district court denied the motion,
reasoning it “would result in a waste of judicial resources.”
      Taylor requested authorization from this court to file another petition
under § 2255(h) and again asked for appointment of counsel. While those
motions were pending before this court, Taylor filed a “placeholder” petition in
the district court to guard against exceeding the one-year deadline to file
motions based on Johnson. Taylor moved the court to stay or abate the
placeholder action until this court could rule on the motions that remained
pending here.
      Before this court ruled on Taylor’s motions, the district court denied the
placeholder petition and the motion to stay. The district court ruled that the
placeholder petition was untimely 3 and that the ACCA’s residual clause “did
not play any role in Movant’s sentencing.” The district court noted Taylor’s
concession that the injury-to-a-child offense counted as a violent felony, and it
stated that Taylor should have challenged the classification of the conviction
at sentencing. The district court opined that if Taylor were allowed to file his
successive § 2255 motion, “the [federal] sentencing scheme . . . would be


      3   The government does not dispute Taylor’s assertion that his motion was timely.
                                              3
     Case: 16-11384       Document: 00514194234         Page: 4     Date Filed: 10/12/2017


                                       No. 16-11384


upended.” The court further declared that because Taylor did not argue that
his injury-to-a-child conviction fell outside the definition of a violent felony at
sentencing, “there would be no basis for a § 2255 review of that issue even if
his second and successive § 2255 motion had been his first and even if it had
been timely filed.”
       This court subsequently appointed the FPD as counsel and granted
authorization to file a successive § 2255 petition. When granting authorization
to file the petition, this court explained that Fifth Circuit precedent indicated
that a Texas conviction for injury to a child may not qualify as an ACCA
predicate offense in light of Johnson. 4 This court warned, however, that “[the]
grant of authorization is tentative in that the district court must dismiss
the § 2255 motion without reaching the merits if it determines that Taylor has
failed to make the showing required to file such a motion.” The case was
transferred back to the district court “for filing as a § 2255 motion.”
       Within a week, and before any documents were filed, the district court
entered a sua sponte order dismissing the action, adopting its reasoning from
its previous order dismissing the placeholder motion. The district court denied
Taylor’s request for a certificate of appealability and concluded that Taylor
could not make the showing this court required because Taylor failed to make
the argument that injury to a child is not an ACCA predicate offense at the
time of his sentencing and on appeal.




       4 The court cited United States v. Gracia-Cantu, 302 F.3d 308, 311-13 (5th Cir. 2002),
United States v. Andino-Ortega, 608 F.3d 305, 311 (5th Cir. 2010), and United States v. Moore,
635 F.3d 774, 776 (5th Cir. 2011). This court has since issued an opinion holding that Texas’s
injury-to-a-child offense is broader than ACCA’s elements clause. United States v. Martinez-
Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017).
                                              4
     Case: 16-11384       Document: 00514194234          Page: 5     Date Filed: 10/12/2017


                                       No. 16-11384


       Taylor appealed and this court granted a certificate of appealability as
to three issues 5 and ordered expedited briefing. Taylor now asks this court to
exercise its statutory authority under 28 U.S.C. § 2106 to render judgment in
his favor and grant Taylor’s motion to vacate the ACCA sentence. He has
already served more than 129 months of his 260 month sentence.
                                 STANDARD OF REVIEW
       When considering challenges to a district court’s decisions under 28
U.S.C. § 2255, this court reviews questions of law de novo. United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994). All of the certified issues raise
questions of law.
                                       DISCUSSION
       As an initial matter, the government concedes two of the issues certified
on appeal. It acknowledges that, under this court’s precedent, Taylor’s injury-
to-a-child conviction no longer counts as an ACCA predicate after Johnson. See
United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017) (holding
as a matter of statutory construction that Texas’s injury-to-a-child offense is
broader than ACCA’s elements clause). The government further concedes that
if Taylor’s claim is constitutionally based, then Taylor’s sentence exceeds the
statutory maximum. 6
       The government does not contend that the new rule the Supreme Court
announced in Johnson was available to Taylor at the time of sentencing or that


       5  The issues included: (1) whether the district court erred in concluding that Taylor
should have challenged his Texas injury-to-a-child conviction as an ACCA predicate at
sentencing; (2) whether the conviction qualifies as an ACCA predicate after United States v.
Johnson; and (3) whether the sentence imposed now exceeds the statutory maximum.
        6 “[I]f this Court determines that Taylor’s current motion presents a constitutional

claim under section 2255(h)(2), . . . [the government] would agree to relief from the 260-month
sentence as exceeding the 10-year statutory maximum for possessing a firearm as a convicted
felon.”
                                              5
     Case: 16-11384      Document: 00514194234        Page: 6    Date Filed: 10/12/2017


                                     No. 16-11384


Taylor should have challenged his Texas injury-to-a-child conviction. 7 Rather,
the government argues that Congress has authorized relief under § 2255(h)(2)
only if it is based on “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2) (emphasis
added). Pointing to the district court’s conclusion that the residual clause
played no role at Taylor’s sentencing, the government contends that Taylor
bears the burden of proof to show that the district court, at his sentencing
hearing, construed his injury-to-a-child conviction as an ACCA predicate under
the residual clause, rather than the still-valid elements clause. However, the
government points to no precedential authority at the time of sentencing
finding this crime to be a violent felony under the elements clause.
      If Taylor can show that the district court sentenced him under the now
constitutionally infirm “residual clause,” the government acknowledges that
he will have demonstrated that a constitutional error occurred and that he
warrants the relief he seeks. If, however, Taylor cannot make that showing—
whether because the district court simply did not explicitly determine which
clause of the ACCA it used to enhance Taylor’s sentence or for some other
reason—then, according to the government, the mistake is statutory, not
constitutional. In that event, relief could be granted only under 28
U.S.C. § 2241, if at all. Put simply, this case turns on a single issue: Whether
Taylor’s claim is constitutionally or statutorily based.
      Many courts considering this question have rejected the government’s
position that the defendant must demonstrate that the district judge actually




      7   “[T]he government [does] not assert the procedural defense inherent in the first
certified issue.”
                                            6
    Case: 16-11384     Document: 00514194234     Page: 7   Date Filed: 10/12/2017


                                  No. 16-11384


relied on the residual clause during sentencing. These courts’ reasons for
rejecting the government’s position have been many and varied.
      For example, the Fourth Circuit addressed an action in which “the record
[did] not establish that the residual clause served as the basis for concluding
that [defendant’s] prior convictions . . . qualified as violent felonies.” United
States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017). That court declined to
“penalize a movant for a court’s discretionary choice not to specify under which
clause of Section 924(e)(2)(B) an offense qualified as a violent felony.” Id. The
court explained that “nothing in the law requires a court to specify which
clause it relied upon in imposing a sentence.” Id. (quoting In re Chance, 831
F.3d 1335, 1340 (11th Cir. 2016)). The Fourth Circuit worried that “imposing
the burden on movants urged by the government . . . would result in ‘selective
application’ of the new rule of constitutional law announced in Johnson II.” Id.
That result would violate “‘the principle of treating similarly situated
defendants the same.’” Id. (quoting Teague v. Lane, 489 U.S. 288, 304 (1989)).
      The Ninth Circuit has stated that “when it is unclear from the record
whether the sentencing court relied on the residual clause, it necessarily is
unclear whether the court relied on a constitutionally valid or a
constitutionally invalid legal theory.” United States v. Geozos, 870 F.3d 890,
895 (9th Cir. 2017). The court analogized this situation to that of a defendant
who has been convicted by a jury that was instructed on two theories of
liability, one valid and the other invalid. Id. at 896. Of course, in such
situations, under what is known as the “Stromberg principle,” the Constitution
is “violated by a general verdict that may have rested on that [invalid] ground.”
Id. (quoting Griffin v. United States, 502 U.S. 46, 53 (1991)); see also Stromberg
v. California, 283 U.S. 359 (1931). The Ninth Circuit was persuaded that a rule
analogous to the Stromberg principle should apply in the sentencing context.
                                     7
    Case: 16-11384     Document: 00514194234     Page: 8   Date Filed: 10/12/2017


                                  No. 16-11384


Id. Accordingly, the court held that “when it is unclear whether a sentencing
court relied on the residual clause in finding that a defendant qualified as an
armed career criminal, but it may have, the defendant’s § 2255 claim ‘relies on’
the constitutional rule announced in Johnson II.” Id.
      Numerous district courts around the country have similarly concluded
that the government’s position is constitutionally untenable. See United States
v. Wilson, No. CR 96-0157 (ESH), 2017 WL 1383644, at *3 (D.D.C. Apr. 18,
2017) (collecting cases). One district court noted that the fact that a record may
be unclear as to whether a judge relied on the elements clause or the residual
clause during sentencing “is neither []surprising nor fatal.” United States v.
Booker, 240 F. Supp. 3d 164, 168 (D.D.C. 2017). That court opined that the
position the government adopted would create “the absurd result” that of two
defendants who had filed the same motions and had the same prior convictions,
one would be entitled to relief if the sentencing judge years earlier had
“thought to make clear that she relied on the residual clause.” Id. at 169
(quoting Chance, 831 F.3d at 1340). The court also concluded that adopting the
government’s position would violate Teague’s requirement that similarly
situated defendants must be treated the same. Id. (quoting Teague, 489 U.S.
at 304).
      The Tenth and Eleventh Circuits, however, have required movants to
show something more. The Tenth Circuit determined it is possible to tell
whether a district court relied upon the residual clause when the sentencing
record is unclear “by looking to the relevant background legal environment at
the time of sentencing.” United States v. Snyder, No. 16-8117, 2017 WL
4171886, at *5 (10th Cir. Sept. 21, 2017) (quoting Geozos, 870 F.3d at 896).
Courts take a “snapshot” of the law at the time of the sentencing and determine
whether a defendant’s convictions “fell within the scope” of the other ACCA
                                     8
     Case: 16-11384      Document: 00514194234        Page: 9     Date Filed: 10/12/2017


                                     No. 16-11384


clauses. Id. If there “would have been no need for reliance on the residual
clause,” then the defendant fails to meet his burden. Id. at *6.
      A few panels of the Eleventh Circuit first suggested in dicta that
defendants must bear the burden of demonstrating definitively that the
district court relied upon the residual clause when sentencing them under the
ACCA. See In re Moore, 830 F.3d 1268, 1271-72 (11th Cir. 2016) (suggesting
that a movant has the burden of showing that he is entitled to relief even when
it is unclear whether the district court relied on the residual clause or other
ACCA clauses); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (opining
that a prisoner “must show that he was sentenced under the residual clause in
the ACCA”).
       A subsequent panel of the Eleventh Circuit subverted those decisions
and criticized Moore for “suggest[ing] that the sentencing court must
ignore . . . precedent unless the sentencing judge uttered the magic words
‘residual clause.’” Chance, 831 F.3d at 1340. The Chance panel stated, “[n]ot
only is Moore’s dicta just that—dicta—but it also seems quite wrong.” Id. at
1339. The Chance panel acknowledged, of course, that “the inmate is the one
who has to make the showing that his sentence is now unlawful,” id. at 1341,
but the panel argued that a defendant should be required to show no more than
that § 924(e)(2)(B)(ii) 8 may no longer authorize his sentence after Johnson—
“not proof of what the judge said or thought at a decades-old sentencing.” Id.
at 1341. The Chance panel acknowledged, however, that its own opinion was
merely dicta. Id. at 1339.




      8  The provision at issue in Chance was not § 924(e)(2)(B), but rather was the “‘very
similar’ § 924(c)(3)(B) residual clause.” Id. at 1337.
                                            9
   Case: 16-11384     Document: 00514194234     Page: 10   Date Filed: 10/12/2017


                                 No. 16-11384


      Finally, a panel of the Eleventh Circuit ruled, over dissent, that “[t]o
prove a Johnson claim, the movant must show that—more likely than not—it
was use of the residual clause that led to the sentencing court’s enhancement
of his sentence.” Beeman v. United States, No. 16-16710, 2017 WL 4210419, at
*5 (11th Cir. Sept. 22, 2017). But the court acknowledged in a footnote that “if
the law was clear at the time of sentencing that only the residual clause would
authorize a finding that the prior conviction was a violent felony, that
circumstance would strongly point to a sentencing per the residual clause.” Id.
at *7 n.5. The court stressed that it is the state of the law at the time of the
sentencing that matters, and subsequent legal decisions would “cast[] very
little light, if any,” on the question of whether the defendant was sentenced
under the residual clause. Id.
      We need not decide today which, if any, of these standards we will adopt
because we conclude that Taylor’s § 2255 claim merits relief under all of them.
Like the cases discussed above, here the district court did not specify under
which clause of the ACCA it was sentencing Taylor. The district court later
concluded that the ACCA’s residual clause “did not play any role in Movant’s
sentencing.” The district judge faulted Taylor for failing to object or to obtain
clarification. But, as noted by other courts, Taylor had no legal right to such a
determination. See, e.g., Winston, 850 F.3d at 682; Chance, 831 F.3d at 1340
(“Nothing in the law requires a judge to specify which clause of
[§ 924(e)(2)(B)]—residual or elements clause—it relied upon in imposing a
sentence.”). And there was no reason for him to object in 2006 because nearly
a decade passed before the Supreme Court decided Johnson.
      As the government concedes, under Martinez-Rodriguez, Texas’s injury-
to-a-child offense is broader than the ACCA’s elements clause. 857 F.3d at 286.
And the injury-to-a-child conviction is necessary to sustain Taylor’s sentence
                                      10
   Case: 16-11384     Document: 00514194234         Page: 11    Date Filed: 10/12/2017


                                     No. 16-11384


enhancement     because    it   is    one    of   the   three   required    predicate
offenses. See § 924(e). This is sufficient to show that § 924(e)(2)(B)(ii) “may no
longer authorize his sentence as that statute stands after Johnson.” Chance,
831 F.3d at 1341. Thus, Taylor’s claim would merit relief in both the Fourth
and Ninth Circuits.
      At the time of Taylor’s sentencing, this court had not ruled directly on
the question of whether Texas’s injury-to-a-child offense is broader than the
ACCA’s elements clause. But here, unlike the cases from the Tenth and
Eleventh Circuits, there was precedent suggesting that Taylor’s third
predicate conviction could have applied only under the residual clause. See
United States v. Gracia-Cantu, 302 F.3d 308, 311-13 (5th Cir. 2002). Thus, even
using the Tenth Circuit’s “snapshot” inquiry or the Eleventh Circuit’s “more
likely than not” test, Taylor would prevail. Theoretically, the district court
mistakenly could have been thinking of the elements clause when sentencing
Taylor. But this court will not hold a defendant responsible for what may or
may not have crossed a judge’s mind during sentencing.
      Thus, Taylor demonstrated a constitutional injury and satisfies the
showing required under § 2255(h)(2). Accordingly, we hold that the district
court erred and REVERSE its dismissal of Taylor’s § 2255 motion.
      Because Taylor has already exceeded the 10-year statutory maximum for
his sentence—he has served more than 129 months—and because the
government stated that “if this Court determines that Taylor’s current motion
presents a constitutional claim, . . . [the government] would agree to relief,” we
exercise our authority under § 2106 and vacate the ACCA enhancement of his
sentence.



                                            11
   Case: 16-11384   Document: 00514194234    Page: 12   Date Filed: 10/12/2017


                              No. 16-11384


                              CONCLUSION
     For the aforementioned reasons, we REVERSE the district court and
grant Taylor’s 28 U.S.C. § 2255 motion. We further exercise our authority
under 28 U.S.C. § 2106 to vacate the ACCA enhancement and reform Taylor’s
sentence to the statutory maximum of 10 years. Because he has served more
than the 10-year maximum, we order Taylor’s immediate release.




                                   12
