United States v. Vickers

967 F.3d 480

UNITED STATES of America, Plaintiff - Appellant

v.Michael Dewayne VICKERS, Defendant - Appellee

No. 18-10940

United States Court of Appeals, Fifth Circuit.

FILED July 23, 2020

Amy Jeannine Mitchell, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellant.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant-Appellee.

Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The government appeals the district court's grant of Michael Dewayne Vickers's motion under 28 U.S.C. § 2255 and its subsequent judgment resentencing Vickers to 98 months in prison. The district court vacated Vickers's original sentence because it found that his Texas conviction for murder no longer qualified as a predicate offense for a career offender sentence enhancement under the Armed Career Criminal Act (ACCA) after Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). Applying the categorical approach, we hold that the statute under which Vickers was convicted meets the ACCA's definition of a violent felony and VACATE the judgment below.

I.

On July 25, 2006, Vickers was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He proceeded to trial and was convicted by a jury. In anticipation of sentencing, the probation officer prepared a presentence investigation report (PSR), in which the officer assigned Vickers a base offense level of 33 under the United States Sentencing Guidelines after concluding that he was an ACCA career offender. The PSR relied on Vickers's prior Texas felony convictions for murder, burglary of a habitation, and unlawful delivery of a controlled substance as predicate offenses for the career offender enhancement. On July 5, 2007, the district court sentenced Vickers to 190 months in prison, which the court then adjusted to 168 months to give him credit for 22 months of time served in Texas state prisons for a related state offense. This court affirmed the conviction and sentence on direct appeal. See United States v. Vickers , 540 F.3d 356, 359 (5th Cir. 2008).

On December 8, 2015, Vickers filed the instant § 2255 motion alleging that his prior convictions no longer qualify as predicate offenses under the ACCA in light of Johnson . The district court appointed counsel and allowed Vickers to seek authorization from this court to pursue a successive § 2555 motion. This court granted authorization for Vickers to challenge his sentence based on his argument that his Texas murder conviction no longer qualifies as a predicate offense but denied his request to challenge his sentence based on the argument that his Texas burglary conviction no longer qualifies.

Vickers filed an amended § 2255 motion in the district court. Relying on our court's case law distinguishing between direct and indirect force, which has since been overruled by United States v. Reyes-Contreras , 910 F.3d 169, 187 (5th Cir. 2018) (en banc), the magistrate judge recommended granting the motion. The government filed objections to the magistrate judge's findings and recommendations. The district court overruled the objections, adopted the magistrate judge's conclusions, and vacated Vickers's sentence. The court held a new sentencing hearing on June 27, 2018.

The government timely appealed from the criminal judgment after Vickers was resentenced.

II.

A. Jurisdiction to Review the Court's § 2255 Order

As an initial matter, Vickers argues that the government did not properly appeal the district court's order granting Vickers's § 2255 motion because it filed its notice of appeal from the criminal judgment after his resentencing rather than from the district court order granting the motion and vacating his original sentence. The district court first entered a judgment vacating Vickers's original sentence on June 5, 2018. It then resentenced Vickers and entered another judgment on June 27, 2018. The government filed its notice of appeal on July 17, 2018. Vickers asserts that, because the notice of appeal is timely only as to the second judgment and was filed in the criminal docket, it applies only to the resentencing, meaning that the government cannot challenge the district court's order vacating his original sentence.

We disagree. The government's notice of appeal refers to both the criminal and civil cases, and it appeals from "the final judgment and sentence imposed after granting Section 2255 relief." Further, the government could not have appealed directly from the civil judgment vacating Vickers's sentence. In a § 2255 case, when "what was appropriately asked and appropriately granted was the resentencing of the petitioner[ ], it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioner[ ] [has been] resentenced." Andrews v. United States , 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963) ; see also United States v. Hayes , 532 F.3d 349, 352 (5th Cir. 2008) (explaining that Andrews held that "when a § 2255 petitioner is granted a resentencing, the government may not appeal that finding until after the resentencing occurs"). Thus, the government had no choice but to wait until Vickers was resentenced to appeal the district court's order granting the § 2255 motion. See 28 U.S.C. § 1291 (granting this court jurisdiction over appeals from "final decisions").

Vickers does not cite a single instance in which this court has required the government to file separate notices of appeal from the criminal and civil judgments in order to challenge the grounds for granting a § 2255 motion. Indeed, this court has considered both a revised criminal sentence and the issues raised in the § 2255 motion leading to the revised sentence based on a single notice of appeal filed after the defendant was resentenced. See Hayes , 532 F.3d at 352–53. Accordingly, the government's notice of appeal was proper, and we may review both the order vacating the original conviction and the district court's new sentence.

B. Vickers's Texas Murder Conviction

The government seeks reversal of the district court's holding that Vickers's Texas murder conviction does not qualify as a violent felony. Because the government properly objected below, we review the district court's order de novo . United States v. Fuller , 453 F.3d 274, 278 (5th Cir. 2006). We agree with the government that, in light of our 2018 en banc decision in Reyes-Contreras , which was decided while this appeal was pending, the district court's holding no longer reflects the law of this circuit.

Title 18 U.S.C. § 922(g)(1), the federal statute under which Vickers was convicted, provides, "[i]t shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition." Id. § 922(g)(1). A person with three qualifying convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another" who violates § 922(g) is subject to a mandatory minimum sentence of fifteen years in prison. 18 U.S.C. § 924(e)(1). Vickers received this sentencing enhancement because he was previously convicted of the Texas state crimes of murder, burglary of a habitation, and delivery of a controlled substance.

To determine whether a crime falls within the federal definition of a violent felony, we employ the categorical approach. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Under the categorical approach, courts " ‘look only to the statutory definitions’—i.e. , the elements—of [an offense], and not ‘to the particular facts underlying those convictions.’ " Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (quoting Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). " ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction.’ " Mathis , 136 S. Ct. at 2248 (quoting Black's Law Dictionary 634 (10th ed. 2014)). "[T]he prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense." Id . at 2247. The "generic offense" is "the offense as commonly understood," provided in the ACCA. Id . "[I]f the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA [predicate]—even if the defendant's actual conduct (i.e. , the facts of the crime) fits within the generic offense's boundaries." Id . at 2248.

To prevail, a defendant must show that the state offense is broader than the generic federal offense, and "[h]e must also show ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime.’ " United States v. Castillo-Rivera , 853 F.3d 218, 222 (5th Cir. 2017) (en banc) (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). Merely pointing to plausible interpretations of the statutory text in a vacuum is not enough. Id . Thus, a defendant must point to case law from the relevant state courts actually applying the state law in a manner that is broader than the federal definition. Id . at 222–23.

A "violent felony" under the ACCA includes any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another."¹

18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has defined the term "physical force" as "violent force—that is, force capable of...