     Case: 18-60425      Document: 00515356569         Page: 1    Date Filed: 03/24/2020




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

                                                                                 FILED
                                    No. 18-60425                           March 24, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WENDELL TAYLOR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:16-CV-108


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       In 2008, Wendell Taylor pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1).             Taylor’s plea agreement
contained a waiver of his right to appeal or collaterally challenge his conviction
or sentence on any ground. In his original sentencing, he was subject to an
enhanced statutory minimum sentence of 15 years (180 months) under the
Armed Career Criminal Act (ACCA) because he had, relevantly, “three
previous convictions . . . for a violent felony[.]” 18 U.S.C. § 924(e). Taylor avers

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-60425        Document: 00515356569          Page: 2     Date Filed: 03/24/2020


                                        No. 18-60425

that his ACCA predicates were Mississippi convictions for house burglary,
burglary of an occupied dwelling, and manslaughter. 1 Based on the same
predicates, Taylor also received a career-offender guidelines enhancement. As
a result, his minimum sentence would have been 180 months; but, prior to
sentencing, the Government moved for a downward departure and to “impose
a sentence below the statutory minimum” based on Taylor’s substantial
assistance. See U.S.S.G. § 5K1.1. Apparently granting the motion, the district
court sentenced Taylor to 151 months of imprisonment, followed by five years
of supervised release. Taylor did not appeal his conviction or sentence.
        In 2015, the Supreme Court issued Johnson v. United States, which
invalidated, as unconstitutionally vague, the ACCA’s “residual clause”
definition of “violent felony.”          135 S. Ct. 2551, 2555-57 (2015) (“Samuel
Johnson”). Subsequently, Taylor filed a 28 U.S.C. § 2255 motion to vacate his
ACCA and career-offender guideline sentences in light of Samuel Johnson. In
pertinent part, he argued that his manslaughter conviction no longer qualifies
as a “violent felony” under the ACCA following Samuel Johnson because none
of the relevant Mississippi manslaughter statutes has “as an element the use,
attempted use, or threatened use of physical force against the person of
another.” § 924(e)(2)(B)(i); cf. United States v. Reyes-Contreras, 910 F.3d 169,
179-80 (5th Cir. 2018) (en banc) (explaining the meaning of use of force in the
context of a sentencing guidelines provision for a crime of violence); United
States v. Griffin, 946 F.3d 759 (5th Cir. 2020) (concluding that Mississippi
aggravated assault was a violent felony under the ACCA).




       1  The indictment also lists a fourth § 922(g)(1) predicate, a 1995 Mississippi conviction
for business burglary. In his § 2255 motion, Taylor avers that “the prosecution abandoned
its position that business burglary i[s] a ‘violent felony’ under the ACCA,” but cites nowhere
in the record where that occurred. Given our ruling, this issue is irrelevant.


                                               2
     Case: 18-60425       Document: 00515356569         Page: 3     Date Filed: 03/24/2020


                                       No. 18-60425

           Without reaching the merits of the Samuel Johnson argument, the
district court granted the Government’s motion to dismiss, agreeing that
Taylor’s collateral attack of his ACCA sentence was barred by the appeal
waiver in his plea agreement.              The court also denied a certificate of
appealability (COA). On appeal, we granted a COA “on the issue of whether
[Taylor’s Samuel] Johnson claim is barred by the collateral-review waiver.”
       Although not mentioned by the parties in their 2019 briefing, Taylor was
released from prison in December of 2018. We must consider our jurisdiction
sua sponte. However, we conclude that this appeal is not moot because Taylor’s
term of supervised release is still in effect. See United States v. Johnson, 529
U.S. 53, 60 (2000); see also United States v. Solano-Hernandez, 761 F. App’x
276, 280 (5th Cir. 2019) (concluding that challenge to a sentence was not moot
because the defendant remained subject to a period of supervised release, even
though he had been released from prison and had not specifically challenged
his supervised release sentence on appeal). We therefore address the parties’
arguments on the waiver issue. 2
       Taylor argues that his predicate crimes are no longer violent felonies as
a result of Samuel Johnson. He claims that his appeal waiver cannot apply to
this argument about Samuel Johnson since such an argument did not exist at
the time of his waiver. He further argues that we have conflicting precedents
on the applicability of waiver in this situation but relies upon Smith v.
Blackburn, 632 F.2d 1194 (5th Cir. 1980) and United States v. Wright, 681 F.
App’x 418 (5th Cir. 2017) to support his argument. In turn the Government
contends that, under the rule of orderliness, the relevant case is United States
v. Creadell Burns, 433 F.3d 442, 443-44 (5th Cir. 2005), which held that a party


       2  Taylor sought an initial hearing en banc on the question of whether a party’s waiver
of collateral review encompasses legal claims arising under subsequent law announced
following the waiver. The full court denied that request.


                                              3
    Case: 18-60425         Document: 00515356569        Page: 4    Date Filed: 03/24/2020


                                       No. 18-60425

sentenced under the mandatory Guidelines scheme who waived his right to
collaterally attack his sentence could not benefit from the Supreme Court’s
January 2005 decision in United States v. Booker, 542 U.S. 296 (2005), that
rendered the Guidelines advisory only. Creadell Burns, 433 F.3d at 449, 451.
Thus, Burns’s appeal waiver was not invalidated “merely because the waiver
was made before Booker.” Id. at 450-51. In so holding, the court noted that
Burns had “know[n] the appellate rights he had” at the time he voluntarily
waived them. Id. at 450.
      The Government avers that Creadell Burns resolves the waiver issue
against Taylor because Taylor knowingly and voluntarily waived his right to
collaterally attack his sentence in pleading guilty and his waiver survived the
changes wrought by Samuel Johnson. Taylor counters that Creadell Burns is
distinguishable because a decision prior to that defendant’s waiver showed the
pathway to Booker. 3 433 F.3d at 450 n.9. On the other hand, Taylor asserts,
he “had no notice whatsoever that the retroactively applicable holdings in
[Samuel] Johnson would affect his sentence” at the time he pleaded guilty
because Samuel Johnson would not be decided for another six years. The
Government replies by noting that the Creadell Burns panel enforced the
appeal waiver despite observing that, while he was aware of Blakely at the
time of his plea, “‘Burns did not know whether or how the Supreme Court
would apply its Blakely holding to the Guidelines.’” Id.
      Taylor additionally argues that this court should disregard Creadell
Burns because it conflicts with Smith and, under this court’s rule of
orderliness, Smith prevails. United States v. Walker, 302 F.3d 322, 325 (5th
Cir. 2002) (holding that under the rule of orderliness, “the earlier precedent
controls”). The Government contends that because Smith did not involve a


      3   The decision in question was Blakely v. Washington, 542 U.S. 296, 303-04 (2004).


                                              4
     Case: 18-60425       Document: 00515356569          Page: 5     Date Filed: 03/24/2020


                                       No. 18-60425

collateral-review waiver, it does not conflict with Creadell Burns and,
therefore, does not control under the rule of orderliness. 4
       We conclude that Creadell Burns governs under the rule of orderliness
because Smith did not include a plea agreement waiver. See Smith, 632 F.2d
at 1195. For that reason, Smith is not dispositive under the rule of orderliness.
See Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399,
405 (5th Cir. 2012) (applying the rule of orderliness where “a previous panel .
. . resolved this question,” meaning the precise question at issue in the later
appeal) (emphasis added). We note that in Wright, our court held that the
Government had “waived the waiver” argument.                       Further, that case is
unpublished and, therefore, not controlling. Indeed, a different unpublished
opinion from our court is more persuasive: United States v. Timothy Burns, 770
F. App’x 187 (5th Cir.), cert. denied, 140 S. Ct. (2019). Burns pleaded guilty to
armed bank robbery and brandishing a firearm during a crime of violence,
waiving his rights to appeal and collateral review, and was sentenced as a
career offender under the Guidelines. 770 F. App’x at 189. Following the
issuance of Samuel Johnson, Burns filed a § 2255 motion “asserting that his
prior convictions no longer qualified him for the career offender enhancement
and that his brandishing conviction should be vacated.” Id. Relevantly, Burns
argued that his collateral-review waiver was unenforceable because he could
not waive a right “that did not exist at the time he agreed to the waiver,” citing
as support the Sixth Circuit’s opinion in United States v. McBride, 826 F.3d
293, 295 (6th Cir. 2016) (holding that “McBride could not have intentionally



       4 The Government further contends that Smith is inapposite because the defendant
therein “was forced to choose between two unconstitutional choices”—trial by either a five-
person jury or a six-person jury requiring the consent of only five to convict—whereas “[t]here
is nothing unconstitutional about waiving post-conviction relief” as Taylor did. We do not
reach this argument.


                                              5
    Case: 18-60425    Document: 00515356569      Page: 6   Date Filed: 03/24/2020


                                 No. 18-60425

relinquished a claim based on [Samuel] Johnson, which was decided after his
sentencing”). Timothy Burns, 770 F. App’x at 190.
      We distinguished McBride because the plea agreement in that case did
not include an appeal waiver. 770 F. App’x at 190; see McBride, 826 F.3d at
294-95. We noted that we “continue[s] to enforce waivers despite changes in
law,” and held that Burns’s argument was “foreclosed” by Creadell Burns.
Timothy Burns, 770 F. App’x at 190-91. Accordingly, we concluded that Burns
had waived his collateral challenge to the career offender enhancement and
affirmed the denial of § 2255 relief. Id. at 191. Although as an unpublished
opinion, Timothy Burns is not controlling precedent, it is “highly persuasive”
because it rejected an argument materially identical to Taylor’s. United States
v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011); see Ballard v. Burton, 444
F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
      In sum, we conclude that the district court did not err in dismissing
Taylor’s § 2255 claim due to his plea waiver. AFFIRMED.




                                       6
