United States v. Young

UNITED STATES OF AMERICA, Plaintiff - Appellee v. RECHARD YOUNG, also known as Rechard Youg,also known as Richard Young, Defendant - Appellant

No. 17-30688

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 10, 2020

Appeal from the United States District Court for the Eastern District of Louisiana

USDC No. 2:16-CV-11300

Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.

PER CURIAM:^*

Appellant Rechard Young, a federal prisoner, appeals from the district court's denial of his 28 U.S.C. § 2255 motion. We REVERSE the district court's judgment, VACATE Young's entire sentence, and REMAND for resentencing.

BACKGROUND

In 2008, Young pled guilty to possessing a firearm after a felony conviction pursuant to 18 U.S.C. § 922(g)(1). The statutory maximum term of imprisonment for possessing a firearm after a felony conviction is generally 10 years of imprisonment. See 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act ("ACCA") increases the punishment range to 15 years to life imprisonment if the defendant has had three prior convictions for "a violent felony or a serious drug offense, or both, committed on occasions different from one another[.]" § 924(e)(1).

The superseding information to which Young pled guilty listed four prior felony convictions as the basis for the charge against him. Specifically, the information noted a 1997 Louisiana conviction for aggravated assault with a firearm, and three 1997 Louisiana convictions on serious drug offenses. Notably, the second and third serious drug offenses occurred on the same day (November 1, 1996); the first serious drug offense occurred on a different day from the other two offenses (October 31, 1996). The district court sentenced Young under § 922(g)(1) and enhanced Young's sentence under the ACCA to the mandatory minimum term of 15 years in prison. Young filed no direct appeal.

In 2016, Young moved to correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his enhanced sentence under the ACCA is unconstitutional because he does not have at least three qualifying prior convictions for a violent felony, a serious drug offense, or both. First, Young argued that his motion is timely pursuant to § 2255(f) because it was filed within one year of the Supreme Court's decision in Johnson v. United States, which held that theACCA's residual clause¹ is unconstitutionally vague. 135 S. Ct. 2251 (2015). Second, Young argued that his underlying conviction for aggravated assault with a firearm is not a qualifying violent felony conviction under the ACCA's force clause. Third, and finally, Young argued that his second and third underlying serious drug offense convictions were part of the same offense and, thus, he has only two, rather than three, qualifying serious drug offense convictions under the ACCA.

The district court determined that Young's § 2255 motion is timely but denied the motion, concluding that (1) Young's conviction for aggravated assault with a firearm is a qualifying violent felony conviction under the ACCA's force clause and (2) at least two of Young's three serious drug offense convictions are qualifying convictions under the ACCA. The district court, however, did not decide whether Young had two or three qualifying serious drug offense convictions under the ACCA.

Young timely appealed. Although the district court denied Young a certificate of appealability, this court granted him one, concluding that reasonable jurists could disagree on whether (1) Louisiana aggravated assault with a firearm constituted a violent felony under the ACCA and (2) Young had two or three qualifying prior serious drug offense convictions under the ACCA.

STANDARD OF REVIEW

The court reviews a "district court's factual findings relating to a § 2255 motion for clear error and its conclusions of law de novo." United States v. Redd, 562 F.3d 309, 311 (5th Cir. 2009) (italics omitted).

DISCUSSION

On appeal, the parties dispute whether (1) a Louisiana aggravated assault with a firearm conviction—specifically, Louisiana Revised Statutes Annotated § 14:37.2 (1996)²—constitutes a prior violent felony conviction under the ACCA and (2) Young had two or three qualifying prior serious drug offense convictions under the ACCA.³ We address each issue in turn.

First, Young's Louisiana aggravated assault with a firearm conviction is not a qualifying violent felony conviction under the ACCA. The ACCA defines a violent felony as a crime punishable by more than one year in prison that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the force clause), (2) is the enumerated offense of "burglary, arson, or extortion, or involves the use of explosives" (the enumerated offenses clause), or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). The force clause is the only relevant clause here.

In Johnson, the Court held that the residual clause is unconstitutionally vague and that an enhanced sentence imposed under the clause is therefore unconstitutional. 135 S. Ct. at 2557, 2563.⁴ Thus, Young's aggravated assault with a firearm conviction cannot stand under the residual clause. Nor canYoung's conviction stand under the enumerated offenses clause: the conviction is not for one of the enumerated offenses and does not involve the use of explosives. Accordingly, Young's conviction does not qualify as a violent felony under the ACCA unless it "has as an element the use, attempted use, or threatened use of physical force against the person of another" pursuant to the force clause. § 924(e)(2)(B)(i).

Generally, this court uses the categorical approach to determine whether a prior offense satisfies the ACCA's force clause, looking "only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." United States v. Montgomery, 402 F.3d 482, 485 (5th Cir. 2005) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). In other words, under this approach, we would "look solely to the statutory elements [of aggravated assault with a firearm] to ascertain whether [the] conviction satisfies the Force Clause." Id. at 486. But where the underlying statute of conviction describes separate offenses with distinct elements, the court applies the modified categorical approach to narrow the offense of conviction, consulting a limited class of documents to determine which offense formed the basis of the defendant's conviction. See Descamps v. United States, 570 U.S. 254, 257 (2013).

At the time of Young's conviction, Louisiana law defined aggravated assault with a firearm as "an assault committed by the discharge of a firearm as the dangerous weapon."⁵ LA. REV. STAT. ANN. § 14:37.2 (1996). Louisiana law defined assault as, "an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery." LA. REV. STAT. ANN. § 14:36 (1996). And Louisiana law defined battery as "theintentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another." LA. REV. STAT. ANN. § 14:33 (1996).

"[I]f a statute lists means of committing a single offense, it is indivisible and must be taken as a whole instead of using the facts of the offense to narrow the statute." United States v. Reyes-Contreras, 910 F.3d 169, 174 (5th Cir. 2018) (en banc). Among other things, courts may look to jury instructions to determine whether listed items in a statute are means of committing the same offense or separate offenses with distinct elements. See Mathis v. United States, 136 S. Ct. 2243, 2256-57 (2015). The Louisiana jury instructions for the current, similarly-phrased aggravated assault with a firearm statute treat the statute as containing a single offense involving alternate means rather than as containing more than one distinct offense. 17 La. Civ. L. Treatise, Criminal Jury Instructions (3d ed. 2015) § 10:37 (providing a single instruction for aggravated assault with a firearm, which may be committed by discharging a firearm and either attempting to use force or violence on the victim with a firearm or intentionally placing the victim in reasonable apprehension of receiving a battery with a firearm). The parties agree, and the district court concluded, that the applicable Louisiana aggravated assault with a firearm statute here is indivisible and subject to the categorical approach. See Mathis, 136 S. Ct. at 2256. Applying the categorical approach, we ask whether Louisiana aggravated assault with a firearm satisfies § 924(e)'s force clause. It does not.

The parties agree that negligent uses of force do not satisfy the ACCA's force clause. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (concluding that the phrase "use . . . of physical force against the person or property of another" in 18 U.S.C. § 16's force clause—which is similar to the force clause in question here—"most naturally suggests a higher degree of intent than negligent ormerely accidental conduct"). Young contends that Louisiana employs an "exceptionally broad" definition of intent for aggravated assault with a firearm, so that the offense may be committed without a subjective desire to discharge the firearm, such as through the negligent discharge of a firearm. See Dane S. Ciolino, The Mental Element of Louisiana Crimes: It Doesn't Matter What You Think, 70 TUL. L. REV. 855, 857 (1996) ("[G]eneral intent . . . can be proved in Louisiana with evidence of mere negligence."). The government, however, argues that aggravated assault with a firearm can be committed "volitionally" only.

While the Louisiana Supreme Court has not addressed whether Louisiana aggravated assault with a firearm can be committed negligently, Louisiana appellate court decisions support Young's...