United States v. David Liddell ( 2019 )

Case: 17-60361 Document: 00515103748 Page: 1 Date Filed: 09/04/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60361 FILED
Summary Calendar September 4, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID LAMONT LIDDELL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-480
Before STEWART, Chief Judge, and HIGGINSON and COSTA, Circuit
Judges.
PER CURIAM: *
David Lamont Liddell, federal prisoner # 09745-043, was convicted of
being a felon in possession of a firearm, and the district court determined that
he was subject to sentencing under the Armed Career Criminal Act (ACCA).
Although, on the Government’s motion, the district court disregarded the
ACCA’s mandatory minimum sentence and imposed a 120-month term of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-60361 Document: 00515103748 Page: 2 Date Filed: 09/04/2019
No. 17-60361
imprisonment, Liddell filed a 28 U.S.C. § 2255 motion challenging the five-year
term of supervised release that was imposed as part of his sentence, in light of
Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied
relief, concluding that Liddell’s prior Mississippi convictions of armed robbery
and aggravated assault qualify as violent felonies under the ACCA. This court
granted a certificate of appealability on whether the district court erred in that
decision.
We review the district court’s determination that a prior conviction
qualifies as a ‘violent felony’ under ACCA de novo. United States v. Seyfert, 67
F.3d 544, 546 (5th Cir. 1995); United States v. Vidaure, 861 F.2d 1337, 1340
(5th Cir. 1988). A “violent felony” is 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 another (the elements 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). 18
U.S.C. § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir.
2017). Johnson has no effect on the elements or enumerated offenses clauses,
but a sentence imposed under the residual clause is now unconstitutional. See
135 S. Ct. at 2563.
Under Mississippi Code Annotated § 97-3-79, armed robbery is
committed by “feloniously tak[ing] or attempt[ing] to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon.” Liddell challenges his armed
robbery conviction as a valid ACCA predicate because § 97-3-79 can be violated
by putting a victim in fear. His argument is unavailing, however, in light of
2
Case: 17-60361 Document: 00515103748 Page: 3 Date Filed: 09/04/2019
No. 17-60361
recent holdings that similarly-worded robbery statues involve sufficient force
to meet the elements clause definition of “violent felony.” See Stokeling v.
United States, 139 S. Ct. 544, 554 (2019); United States v. Burris, 920 F.3d 942,
958 (5th Cir. 2019).
In 2005, when Liddell was convicted under Mississippi Code Annotated
§ 97-3-7(2) (West. 2005), aggravated assault was committed by “attempt[ing]
to cause serious bodily injury to another, or caus[ing] such injury purposely,
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life” or by “attempt[ing] to cause or purposely or
knowingly caus[ing] bodily injury to another with a deadly weapon or other
means likely to produce death or serious bodily harm.” Hutchinson v. State,
594 So. 2d 17, 19 n.1 (Miss. 1992); see also Snowden v. State, 131 So. 3d 1251,
1255-56 & n.2 (Miss. Ct. App. 2014) (recognizing that statute’s 2012
amendment). Liddell contends that his aggravated assault conviction is not a
valid ACCA predicate offense because it can be committed using non-violent
force, such as poison.
In United States v. Reyes-Contreras, 910 F.3d 169, 180-84 (5th Cir. 2018)
(en banc), we considered 18 U.S.C. § 16(a), which defines “crime of violence” as
“an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.” Overruling prior
caselaw to the extent it distinguished between direct and indirect force, we
held that the use of force can include knowing or reckless conduct, indirect
force can constitute the use of physical force, and there is no distinction
between causation of injury and use of force. Id. (relying on, inter alia, United
States v. Castleman, 572 U.S. 157 (2014), and Voisine v. United States, 136 S.
Ct. 2272 (2016)).
3
Case: 17-60361 Document: 00515103748 Page: 4 Date Filed: 09/04/2019
No. 17-60361
In light of the foregoing, the district court correctly ruled that Liddell’s
armed robbery and aggravated assault convictions qualified as predicate
offenses under § 924(e)(2)(B)(i)’s elements clause definition. The judgment of
the district court is AFFIRMED.
4