United States v. Roy Wells, Jr. , 684 F. App'x 374 ( 2017 )

Case: 15-51050 Document: 00513936245 Page: 1 Date Filed: 04/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-51050
Fifth Circuit
FILED
Summary Calendar April 3, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ROY LEE WELLS, JR.,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:88-CR-32-1
Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Roy Lee Wells, Jr., federal prisoner # 40052-080, was sentenced in 1988
under the Armed Career Criminal Act (ACCA) to 480 months of imprisonment
and five years of supervised release. Wells filed a motion invoking Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015), which invalidated the ACCA’s
residual clause, and 28 U.S.C. § 2255. The motion was denied, and Wells
appealed.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51050 Document: 00513936245 Page: 2 Date Filed: 04/03/2017
No. 15-51050
Wells’s brief requests a certificate of appealability (COA), which must
issue for this court to exercise appellate jurisdiction. Gonzalez v. Thaler, 565
U.S. 134, 142 (2012) (§ 2254 case). Wells’s contention that Johnson applies
retroactively and implicates the constitutionality of his conviction under the
ACCA satisfies the threshold COA standard. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Nevertheless, we agree with the Government that Wells’s
claims are ultimately without merit in light of his three Texas controlled
substance offenses. These convictions are ACCA predicates separate from
residual clause offenses. See 18 U.S.C. § 924(e)(2)(A)(ii); United States v.
Vickers, 540 F.3d 356, 363–66 (5th Cir. 2008). Further briefing is therefore
unnecessary. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
For these reasons, we GRANT Wells a COA; we GRANT the
Government’s motion for summary affirmance and AFFIRM; we DENY as
unnecessary the Government’s alternative request for additional time to file a
brief; and we DENY Wells’s motion to dismiss the indictment as moot.
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