     Case: 12-30479      Document: 00512475357         Page: 1    Date Filed: 12/18/2013




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

                                                                                  FILED
                                      No. 12-30479                        December 18, 2013
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee
v.

SHELDON W. HANNER,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1776


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Sheldon W. Hanner was convicted in 2008 of being a felon in possession
of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e).
The district court found that Hanner’s prior Louisiana conviction for
manslaughter was a qualifying violent felony pursuant to the Armed Career
Criminal Act (ACCA), and the court sentenced him to an enhanced sentence of
300 months in prison. Although he objected to the enhancement at sentencing,
Hanner did not renew his argument on direct appeal, and we affirmed his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-30479
conviction. United States v. Hanner, 354 F. App’x 7 (5th Cir. 2009). Hanner
subsequently filed a 28 U.S.C. § 2255 motion, arguing that his appellate
counsel rendered ineffective assistance for failing to pursue on direct appeal
the claim that his manslaughter conviction was not a violent felony. The
district court denied relief. We granted Hanner a certificate of appealability,
and we now AFFIRM.
      When reviewing the denial of a § 2255 motion based on ineffective
assistance of counsel, we review the district court’s legal conclusions de novo
and its findings of fact for clear error. United States v. Cong Van Pham, 722
F.3d 320, 323 (5th Cir. 2013). To prove ineffective assistance of his appellate
counsel, Hanner had to show “(1) ‘that counsel’s performance was deficient’ and
(2) ‘that the deficient performance prejudiced the defense.’” Higgins v. Cain,
720 F.3d 255, 261 (5th Cir. 2013) (quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S. Ct. 2052, 2064 (1984)). The prejudice prong in this context
required Hanner to show that this court would have afforded him relief on
appeal, and we must therefore decide the probable outcome had his counsel
raised the issue Hanner now claims should have been raised. See United States
v. Reinhart, 357 F.3d 521, 530 (5th Cir. 2004).
      The ACCA requires enhanced sentences for convictions of firearms
offenses under § 922(g) if the defendant has at least three prior convictions for
“violent felonies” or serious drug offenses. See § 924(e)(1). A “violent felony”
is defined as a crime 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). To determine whether a defendant’s prior conviction qualifies as a
violent felony under the ACCA, we apply the categorical approach, first
announced in Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160
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                                  No. 12-30479
(1990), that looks only to “the elements of the statute of conviction rather than
a defendant’s specific conduct.” See United States v. Rodriguez, 711 F.3d 541,
549 (5th Cir. 2013) (en banc).
      “[W]hen a statute can be violated in a way that constitutes a violent
felony and in a way that does not, we review other judicial documents to make
the determination.” United States v. Espinoza, 733 F.3d 568, 571 (5th Cir.
2013).   This so-called “modified categorical approach” applies to divisible
statutes that set out one or more potential offense elements in the alternative.
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). When a statute sets
forth alternative elements, courts may implement the categorical approach by
examining a limited class of documents to determine which of the alternative
elements formed the basis of the prior conviction. Id.; see United States v.
Miranda–Ortegon, 670 F.3d 661, 663 (5th Cir. 2012) (“We may take a modified
categorical approach, permitting consultation of the allegations in the charging
instrument, if the statute of conviction has disjunctive elements.”).
      In the instant case, Hanner was convicted in 1984 under the Louisiana
manslaughter statute, which defines the offense in multiple, disjunctive ways.
First, manslaughter includes a homicide which would be first or second degree
murder, but which “is committed in sudden passion or heat of blood.” LA. REV.
STAT. ANN. § 14:31(A)(1). Second, manslaughter is also defined as a homicide,
without intent to cause death or great bodily harm, when the defendant (a) “is
engaged in the perpetration or attempted perpetration of any felony not
enumerated in Article 30 or 30.1, or of any intentional misdemeanor directly
affecting the person,” or (b) “is resisting lawful arrest by means, or in a manner,
not inherently dangerous, and the circumstances are such that the killing
would not be murder under Article 30 or 30.1.”              LA. REV. STAT. ANN.
§ 14:31(A)(2).


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                                 No. 12-30479
      Because the Louisiana statute provides for alternative versions of the
crime of manslaughter, we may look to “‘conclusive records made or used in
adjudicating guilt’” to determine under which alternative statutory phrase
Hanner was convicted. United States v. McCann, 613 F.3d 486, 502 (5th Cir.
2010) (quoting Shepard v. United States, 544 U.S. 13, 21, 125 S. Ct. 1254, 1260
(2005)); see also Descamps, 133 S. Ct. at 2285. When, as in the instant case, a
defendant’s prior conviction was based on a guilty plea, the conclusive records
include “the terms of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which the factual basis
for the plea was confirmed by the defendant, or to some comparable judicial
record of this information.” Shepard, 544 U.S. at 26, 125 S. Ct. at 1263. The
Government has supplemented the record in this case with documents from
Hanner’s state court proceedings. See United States v. Vargas-Soto, 700 F.3d
180, 183-84 (5th Cir. 2012).
      In Descamps, the Court made clear that the key “is elements, not facts.”
Descamps, 133 S. Ct. at 2283. We do not examine the defendant’s plea to
determine “what the defendant and state judge must have understood as the
factual basis of the prior plea.” See id. at 2284 (internal quotation marks and
citation omitted). Rather, we seek “to determine which alternative element in
a divisible statute formed the basis of the defendant’s conviction.” Id. at 2293.
In other words, we must determine what elements the defendant was convicted
of, not what he actually did. See id. at 2287-88.
      The instant case is somewhat unusual and presents a challenge to
determining Hanner’s crime of conviction, which is the starting point under
the categorical or modified categorical approach.         There is no charging
instrument or written plea agreement governing Hanner’s prior manslaughter
conviction from which we may determine the elements of the manslaughter
offense that formed the basis for Hanner’s conviction. Instead, the state court
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                                  No. 12-30479
record shows that Hanner was initially indicted for the second-degree murder
of his wife. Hanner proceeded to a jury trial, but the jury hung. Hanner then
orally agreed to plead guilty to a reduced offense of manslaughter, and he
stipulated that the trial record would be introduced to establish the factual
basis for the offense. Significantly, the parties agreed to “let the [c]ourt decide
in sentencing which part of the statute applies to the conduct to which
[Hanner] is pleading guilty.”
      Having been left from the defendant’s explicit plea to decide the
statutory basis for the conviction, the state court found, in relevant part, that
“the crime would fall under the manslaughter article for the reason that the
defendant was engaged in simple kidnapping at the time the homicide was
committed and death resulted. So it is on that basis that the Court has
considered this case. . . . [A]nd in the course of the taking of his wife from one
place to the other by force and without her consent the death of his wife
resulted. And that is the basis on which I have considered this.”
      Based on Hanner’s plea, therefore, the elements of the offense for which
Hanner was convicted are that a homicide occurred during the commission of
simple kidnapping, which included the element of forcibly taking Hanner’s
wife from one place to another. See § 14:31(A)(2)(a); see also LA. REV. STAT.
ANN. § 14:45 (defining simple kidnapping disjunctively to include “[t]he
intentional and forcible seizing and carrying of any person from one place to
another without his consent”). Hanner’s prior manslaughter offense therefore
included as an element the use or attempted use of physical force.
      It is true that in McCann, we held that the defendant’s prior
manslaughter conviction under § 14:31(A)(2) was not a crime of violence under
the Sentencing Guidelines because “it is possible to be convicted of
manslaughter in Louisiana if a death occurred during a non-violent offense like
a theft.” McCann, 613 F.3d at 503; see also United States v. Moore, 635 F.3d
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                                 No. 12-30479
774, 776 (5th Cir. 2011) (noting that we treat cases dealing with crime of
violence provisions under the Sentencing Guidelines and the ACCA
interchangeably). We held there that the district court had improperly relied
solely on the presentence report’s characterization of the prior offense as
having been for a crime of violence. See McCann, 613 F.3d at 502-03.
      In the instant case, however, Hanner did not merely plead guilty to an
unspecified offense under § 14:31(A)(2), which could implicate McCann’s
holding. Instead, he pleaded guilty to an offense while allowing the trial court
to determine the statutory charge for his conduct. Having made that choice,
Hanner then pleaded guilty to the elements of the crime of conviction assigned
by the state court, viz. a homicide during a simple kidnapping with a violent
taking of a person from one place to another. This is not a case where we are
called upon to make post hoc judicial fact findings about Hanner’s violent
conduct, and indeed we may not do so. See Descamps, 133 S. Ct. at 2288.
Instead, the unusual nature of Hanner’s plea resulted in the trial court, rather
than a charging instrument, narrowing the elements of the crime of conviction
to include the use of force.
      Because his prior conviction was for a violent felony, Hanner cannot
show that his appellate counsel was ineffective for failing on direct appeal to
challenge the sentence enhancement, or that he suffered prejudice as a result.
The district court’s judgment is therefore AFFIRMED.




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      STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
      Because I perceive no latitude after Descamps for Hanner’s heinously
violent felony manslaughter offense to qualify as a violent felony for purposes
of the Armed Career Criminal Act, I respectfully dissent. See Descamps v.
United States, --- U.S. ---, 133 S.Ct. 2276, 2290 (2013) (limiting application of
the modified categorical approach to statutory text that is “explicitly
divisible”). Furthermore, I am concerned that the state judge’s discussion of
Hanner’s manslaughter offense at sentencing does not fall within the class of
documents that courts can consider when determining whether an offense
qualifies as a violent felony under the modified categorical approach. See
Shepard v. United States, 544 U.S. 13, 26 (2005).
