United States v. Rechard Young ( 2020 )


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  •      Case: 17-30688      Document: 00515378706         Page: 1    Date Filed: 04/10/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 17-30688
    Fifth Circuit
    FILED
    April 10, 2020
    UNITED STATES OF AMERICA,                                                Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    RECHARD YOUNG, also known as Rechard Youg, also known as Richard
    Young,
    Defendant - Appellant
    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.
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
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    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 the
    2
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    ACCA’s residual clause 1 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).
    1   The ACCA’s residual and force clauses, which are relevant to this appeal, are defined
    infra.
    3
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    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 can
    2 Notably, the operative law at the time of Young’s conviction has since been amended.
    Compare LA. REV. STAT. ANN. § 14:37.2 (1996) with LA. REV. STAT. ANN. § 14:37.4 (2012).
    3 For Young to succeed on appeal, we must conclude that (1) Young’s Louisiana
    aggravated assault with a firearm conviction does not constitute a prior violent felony
    conviction under the ACCA and (2) the record is inconclusive as to whether Young has two
    or three qualifying prior serious drug offense convictions under the ACCA or the second and
    third serious drug offenses occurred simultaneously. If we make one but not both
    conclusions, then Young will still have three qualifying prior convictions under the ACCA
    and his ACCA sentencing enhancement will stand.
    4 Johnson has no effect on the force or enumerated offenses 
    clauses. 135 S. Ct. at 2563
    . And Johnson applies retroactively to cases on collateral review. Welch v. United States,
    
    136 S. Ct. 1257
    , 1265 (2016).
    4
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    Young’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 “the
    5 Louisiana law now defines aggravated assault with a firearm as “an assault
    committed with a firearm.” LA. REV. STAT. ANN. § 14:37.4 (2012).
    5
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    intentional 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 or
    6
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    merely 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 position. In Louisiana v.
    Julien, Louisiana’s Third Circuit Court of Appeal held that a jury need “only
    [find] that the prohibited result[, i.e., discharging the firearm,] would
    reasonably be expected to follow from [the defendant’s] voluntary act of
    introducing the gun into the situation.” 
    34 So. 3d 494
    , 499 (La. Ct. App. 2010)
    (internal quotation marks omitted). This was true “whether such discharge
    occurred as a result of his intent to discharge, or from his negligence.”
    Id. (emphasis added).
    Further, in Louisiana v. Qualls, Louisiana’s Second Circuit
    Court of Appeal concluded that, by discharging a firearm, the defendant
    committed the offense of aggravated assault with a firearm regardless of
    whether he “was actually trying to hit the victim.” 
    921 So. 2d 226
    , 237 (La. Ct.
    App. 2006).
    The government’s reliance on United States v. Valle-Ramirez is
    misplaced. 
    908 F.3d 981
    (5th Cir. 2018). There, this court determined that a
    Georgia aggravated assault statute met the use of force requirement in 18
    U.S.C. § 16(a).
    Id. at 985–86.
    The court reasoned, “to commit the relevant
    assault under Georgia law, the defendant must intend to commit the act that
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    causes the victim to feel reasonable apprehension of immediate violent injury,
    though the defendant need not intend to cause the apprehension itself.”
    Id. at 986.
    But the Louisiana statute here criminalizes a defendant’s negligence in
    committing the act that accomplishes an assault. See 
    Julien, 34 So. 3d at 499
    .
    Nonetheless, the district court concluded that “[f]iring a gun in the
    presence of another person, whether intentional or reckless, clearly constitutes
    the use, attempted use, or threatened use of violent, physical force.” The
    district court relied on Voisine v. United States, which—in the context of 18
    U.S.C. § 921(a)(33)(A)’s force clause—concluded that the word “use” in the
    phrase “use of physical force” “does not demand that the person applying force
    have the purpose or practical certainty that it will cause harm, as compared
    with the understanding that it is substantially likely to do so.” 
    136 S. Ct. 2272
    ,
    2279 (2016). In other words, the word “use” is “indifferent as to whether the
    actor has the mental state of intention, knowledge, or recklessness with respect
    to the harmful consequences of his volitional conduct.”
    Id. Voisine, however,
    did not consider negligent conduct.         See
    id. In other
    words, Voisine is
    unavailing to the government.
    In an earlier case—Leocal—the Court examined 18 U.S.C. § 16’s force
    clause, which states that a crime of violence means “an offense that has an
    element the use, attempted use, or threatened use of physical force against the
    person or property of 
    another[.]” 543 U.S. at 5
    (quoting § 16(a)). Section 16’s
    force clause is similar to § 924(e)’s force clause, which, again, states that a
    qualifying violent felony “has as an element the use, attempted use, or
    threatened use of physical force against another[.]” § 924(e)(2)(B)(i). The
    Leocal court stated:
    The critical aspect of § 16(a) is that a crime of violence is one
    involving the “use . . . of physical force against the person or
    property of another.” As we said in a similar context . . . , “use”
    requires active employment. While one may, in theory, actively
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    employ something in an accidental manner, it is much less natural
    to say that a person actively employs physical force against
    another person by accident. Thus, a person would “use . . . physical
    force against” another when pushing him; however, we would not
    ordinarily say a person “use[s] . . . physical force against” another
    by stumbling and falling into him. When interpreting a statute,
    we must give words their ordinary or natural meaning. The key
    phrase in § 16(a)—the “use . . . of physical force against the person
    or property of another”—most naturally suggests a higher degree
    of intent than negligent or merely accidental 
    conduct. 543 U.S. at 9
    (internal quotation marks, citations, and parenthetical omitted)
    (emphasis in original); see also United States v. Castleman, 
    572 U.S. 157
    , 171
    (2014) (recognizing Leocal’s holding that “use” requires more than negligent or
    accidental conduct); United States v. Chan-Xool, 716 F. App’x 274, 278 (5th Cir.
    2017) (unpublished) (“Because [the state statute] can apply to merely negligent
    conduct, it cannot qualify as an element involving a use of force that must be
    at least reckless.”). 6     Indeed, “Voisine reminds us that Leocal held use of
    physical force against another’s person or property excludes merely accidental
    6  Although the Court decided Leocal before Sessions v. Dimaya held the residual
    clause of § 16(b) to be unconstitutionally vague, Dimaya does not disturb Leocal’s analysis of
    the force clause. See 
    138 S. Ct. 1204
    , 1215–16 (2018) (holding only that § 16(b) is
    unconstitutional and not discussing Leocal’s analysis of § 16(a)). Several other federal circuit
    courts have also applied, post-Dimaya, Leocal’s distinction between accidental or negligent
    conduct and intentional conduct in a use of force analysis. See United States v. Simmons,
    
    917 F.3d 312
    , 321 (4th Cir. 2019), as amended (Mar. 6, 2019) (concluding that any of the
    forms of North Carolina assault may be established with negligence and therefore lack the
    requisite “use” of force under Leocal); United States v. Bong, 
    913 F.3d 1252
    , 1260–61 (10th
    Cir. 2019) (noting that “[t]he term ‘use,’ as employed in the ACCA’s [force] clause, requires
    active employment rather than negligent or merely accidental conduct [under Leocal].”)
    (internal quotation marks and citation omitted); United States v. Vasquez-Gonzalez, 
    901 F.3d 1060
    , 1066–67 (9th Cir. 2018) (noting that Leocal held that § 16(a) encompasses crimes with
    a higher level of intent than negligence or accident); Lassend v. United States, 
    898 F.3d 115
    ,
    131 (1st Cir. 2018) (noting Leocal’s requirement of intent greater than accident or negligence,
    finding the requirement met where the state offense required active and intentional
    engagement in the offense, and citing for this proposition Stuckey v. United States, 
    878 F.3d 62
    (2d Cir. 2017), cert. denied, 
    139 S. Ct. 161
    (2018)), cert. denied, 
    139 S. Ct. 1300
    (2019);
    Greer v. United States, 749 F. App’x 887, 894 n.7 (11th Cir. 2018) (noting that Leocal
    interpreted “crime of violence” to generally exclude offenses which include accidental or
    negligent conduct).
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    conduct.” United States v. Mendez-Henriquez, 
    847 F.3d 214
    , 220 (5th Cir.)
    (internal quotation marks and citation omitted), cert. denied, 
    137 S. Ct. 2177
    (2017); see also 
    Voisine, 136 S. Ct. at 2279
    (noting that Leocal addressed
    accidental but not reckless conduct).
    Because Louisiana aggravated assault with a firearm can be achieved
    through negligent conduct, it does not constitute a violent felony under §
    924(e).
    Second, the record is inconclusive as to whether Young’s three prior
    convictions for serious drug offenses constitute three separate drug
    transactions under § 924(e)(1). Notably, Young does not argue that the district
    court improperly determined that Young’s first drug offense constitutes a
    separate transaction from the second and third offenses. We address whether
    Young’s second and third offenses constitute separate transactions or the same
    transaction under § 924(e)(1).
    The ACCA requires that, to be counted separately, qualifying predicate
    offenses must “be committed on occasions different from one another.”           §
    924(e)(1). “The critical inquiry” in determining whether criminal transactions
    occurred on different occasions is “whether the offenses occurred sequentially.”
    United States v. Fuller, 
    453 F.3d 274
    , 278 (5th Cir. 2006). Offenses occur
    sequentially if they are “distinct in time” from one another. United States v.
    White, 
    465 F.3d 250
    , 253 (5th Cir. 2006) (internal quotation marks and
    citations omitted). Two prior offenses may be distinct in time even if they occur
    within minutes of one another. 
    Fuller, 453 F.3d at 278
    –79. This court looks
    to whether the first offense was completed before the second began and
    whether the perpetrator “was free to cease and desist from further criminal
    activity” but instead “chose to initiate a new course of action and commit a
    separate offense.” See United States v. Ressler, 
    54 F.3d 257
    , 260 (5th Cir. 1995)
    (internal quotation marks omitted).
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    Following Shepard v. Unites States, to determine whether two offenses
    occurred on different occasions, a court is permitted to examine only “the
    statutory definition, charging document, written plea agreement, transcript of
    plea colloquy, and any explicit factual finding by the trial judge to which the
    defendant assented.” 
    544 U.S. 13
    , 16 (2005); 
    Fuller, 453 F.3d at 279
    (same).
    In addition to Shepard-approved documents, a court may consider a
    defendant’s admissions. United States v. Mendoza-Sanchez, 
    456 F.3d 479
    , 483
    (5th Cir. 2006). However, a court cannot rely on a presentence investigation
    report’s characterization of predicate offenses. United States v. Garza-Lopez,
    
    410 F.3d 268
    , 273–74 (5th Cir. 2005). Nor can a court rely on police reports.
    
    Shepard, 544 U.S. at 16
    .
    When Shepard-approved documents in a record are inconclusive as to
    whether predicate ACCA offenses occurred on separate occasions, this court
    has declined to affirm an ACCA enhancement. See 
    Fuller, 453 F.3d at 279
    –80.
    Here, the charging document to which Young pled guilty is the only relevant
    Shepard-approved material. This document shows that Young was charged
    with three counts of distribution of cocaine: the first count for conduct on
    October 31, 1996; the second count for conduct on November 1, 1996; and the
    third count also for conduct on November 1, 1996.
    Relying on Fuller, the government argues that, on its face, the charging
    document supports a finding that Young committed the drug transactions
    sequentially. Fuller is unavailing to the government. There, the court vacated
    the defendant’s ACCA sentencing enhancement, which was based in part on
    two state convictions for burglary of a building on the same date. 
    Fuller, 453 F.3d at 275
    –76, 279–80. The defendant argued that the enhancement was
    improper because the two burglary offenses were part of the same transaction.
    Id. at 278.
    The court stated that the indictments for each of the burglaries
    “charged Fuller with entering another person’s trailer without the owner’s
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    consent. No other Shepard-approved material appears in the PSR with respect
    to the . . . burglaries.”
    Id. at 279.
    The court concluded that, “[o]n their face,
    the indictments support the district court’s conclusion that [the defendant]
    committed the burglaries sequentially.”
    Id. However, “[b]ased
    on the
    indictments alone,” the court could not “determine as a matter of law that the
    burglaries occurred on different occasions.”
    Id. Accordingly, the
    court held:
    “Because the record does not contain the written plea agreement, the plea
    colloquy, or other Shepard-approved material that might resolve this question,
    we must vacate [the defendant’s] sentence with respect to the ACCA
    enhancement.”
    Id. at 279–80.
    Fuller, then, is contrary to the government’s
    position.
    Nonetheless, the government argues that “Young has not pointed to
    anything in the state charging document that would contradict a finding that
    the drug convictions were separate transactions, nor has he sought to introduce
    additional approved documents.”      However, as in Fuller, the court cannot
    properly determine that the drug transactions occurred on separate occasions
    based on the Shepard-approved evidence in the record.
    Notably, the government’s argument appears to invoke the “Barlow
    burden.” In Barlow, Barlow did not contest the separateness of his predicate
    ACCA offenses, and the court did not address this specific question.         See
    generally United States v. Barlow, 
    17 F.3d 85
    (5th Cir. 1994). Instead, Barlow
    contended that one of his prior predicate ACCA convictions suffered from a
    “constitutional infirmity.”
    Id. at 89.
    Specifically, Barlow claimed that the
    prosecutor induced his guilty plea by promising that the government would not
    seek the death penalty; however, the government broke its promise and did
    just that.
    Id. The Barlow
    court applied this standard, which some courts refer
    to as the Barlow burden: “Once the government establishes the fact of a prior
    conviction based upon a guilty plea, the defendant must prove the invalidity of
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    the conviction by a preponderance of the evidence.” Id.; see also United States
    v. Williams, 
    20 F.3d 125
    , 132–33 & n.8 (5th Cir. 1994) (applying the Barlow
    burden to a claim that predicate ACCA convictions were constitutionally
    invalid because of involuntary and unintelligently-given guilty pleas); United
    States v. Owens, 753 Fed. App’x 209, 213 (5th Cir. 2008) (unpublished)
    (referring to the standard outlined in Barlow as the “Barlow burden”).
    While we do not and need not apply the Barlow burden to the
    separateness inquiry here, we note that several of our unpublished opinions
    have applied the burden. See Owens, 753 Fed. App’x at 213; United States v.
    Taylor, 263 Fed. App’x 402, 404 (5th Cir. 2008) (unpublished); United States v.
    Bookman, 263 Fed. App’x 398, 400 (5th Cir. 2008) (unpublished); United States
    v. Garcia, 329 Fed. App’x 528, 529 (5th Cir. 2009) (unpublished); United States
    v. Welk, 379 Fed. App’x 411, 412 (5th Cir. 2010) (unpublished); United States
    v. Martin, 447 Fed. App’x 546, 548 (5th Cir. 2011) (unpublished); see also 5TH
    CIR. R. 47.5.4 (“Unpublished opinions issued on or after January 1, 1996, are
    not precedent, except [in limited circumstances such as] under the doctrine of
    res judicata[.]”) (asterisk omitted); Light-Age, Inc. v. Ashcroft-Smith, 
    922 F.3d 320
    , 322 n.1 (5th Cir. 2019) (concluding that, while an unpublished opinion
    issued after January 1, 1996, is not binding precedent, “we may consider [such
    an] opinion as persuasive authority”). Each of these opinions is consistent with
    Fuller’s holding: when Shepard-approved documents in a record are
    inconclusive as to whether predicate ACCA offenses occurred on separate
    occasions, the defendant’s sentence should be vacated.
    Bookman and Taylor are illustrative. Both apply the Barlow burden and
    cite out-of-circuit opinions that they state “place the onus on the defendants to
    prove that prior offenses are not separate.” Bookman, 263 Fed. App’x at 400
    n.1; Taylor, 263 Fed. App’x at 404 n.1. For example, in United States v.
    Hudspeth, the Seventh Circuit stated that “the government must establish
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    that a defendant has three prior violent felony convictions” under § 924(e)(1)
    and can establish this through an unchallenged certified record of conviction
    or presentence investigation report. 
    42 F.3d 1015
    , 1019 n.6 (7th Cir. 1994).
    Then, the burden shifts “to the defendant to establish by a preponderance of
    the evidence that the prior convictions occurred on a single ‘occasion,’ and thus
    cannot be the basis for the sentence enhancement under § 924(e)(1).”
    Id. Hudspeth “essentially
    requires an ACCA enhancement even if the available
    Shepard-approved documents . . . [are] inconclusive as to whether the offenses
    occurred on the same occasion[.]” Kirkland v. United States, 
    687 F.3d 878
    ,
    888–89 (7th Cir. 2012).
    The Seventh Circuit and other circuits no longer take the approach set
    out in Hudspeth.
    Id. at 888–89
    (“When properly viewed in [the] post-Shepard
    context, we believe that the burden shifting scheme set forth in Hudspeth is no
    longer tenable[.]”); see also
    id. at 888–95
    (explaining why requiring defendants
    to bear the burden of proof when they claim the invalidity of a prior conviction
    is tenable whereas requiring defendants to bear the burden to prove the
    separateness of offenses is not);
    id. at 895
    (“[W]e believe that an ambiguous
    record regarding whether a defendant actually had the opportunity ‘to cease
    and desist or withdraw from his criminal activity’ does not suffice to support
    the ACCA enhancement.”); United States v. Barbour, 
    750 F.3d 535
    , 543–46
    (6th Cir. 2014) (“We are convinced that placing the burden on the government
    [for the purposes of a separate-offense inquiry] is the view shared by all our
    sister circuits that have squarely addressed the issue[.]”) (collecting cases).
    While the Bookman and Taylor courts ostensibly applied the Barlow
    burden and cited Hudspeth, they did not “place[] the burden on the defendant
    to put forth evidence that the prior offense occurred on the same occasion[.]”
    
    Kirkland, 687 F.3d at 894
    (discussing Bookman in detail but also citing
    Taylor); Bookman, 263 Fed. App’x at 399–401; Taylor, 263 Fed. App’x at 404–
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    No. 17-30688
    05. Instead, the Bookman and Taylor courts “indicated that the government
    must provide evidence that the offenses occurred on different occasions, and
    the defendant then bears the burden of challenging that evidence.” 
    Kirkland, 687 F.3d at 894
    ; see Bookman, 263 Fed. App’x at 399–401 (affirming ACCA
    enhancement where (1) the government submitted Shepard-approved
    documents indicating that Bookman’s predicate ACCA offenses were
    committed on different dates and (2) the defendant did not submit any evidence
    that his predicate offenses occurred simultaneously); Taylor, 263 Fed. App’x at
    404–05 (affirming ACCA enhancement where (1) the indictments and
    judgments for the predicate ACCA offenses established that the offenses
    occurred on separate occasions and (2) the defendant did not submit any
    evidence contradicting the Shepard-approved documents); see also 
    Barbour, 750 F.3d at 544
    –546 (agreeing with the Kirkland court’s interpretation of
    Bookman). In Owens, we more explicitly did this, stating that the government
    did not carry its Barlow burden based on the Shepard-approved documents in
    the record, specifically, indictments and judicial confessions. Owens, 753 Fed.
    App’x at 214–15. While Owens referred to committing two “crimes,” “there is
    ambiguity as to whether ‘crimes’ connotes the two convictions arising out of a
    single criminal transaction or two separate criminal transactions.”
    Id. at 215.
    The Owens court explained:
    If the Barlow burden had already shifted to Owens, we would
    agree with the Government that Owens’ ambiguous references to
    a second crime would not help his cause. But that is not the
    situation we face: the Government has proved only two—and not
    three—predicate violent felonies, and so the Barlow burden
    remains unmoved.
    Id. at 215.
          The Seventh Circuit also noted that placing the initial burden on the
    government is consistent with Fuller. 
    Kirkland, 687 F.3d at 895
    (“Despite [the
    Bookman court] having cited the burden shifting scheme set forth in Hudspeth,
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    No. 17-30688
    [the Fifth Circuit] has declined to apply the ACCA enhancement when faced
    with an inconclusive record.”) (citing 
    Fuller, 453 F.3d at 279
    ); see also
    id. at 889
    (“[W]henever we have had doubts as to whether the record indicated that
    the offenses occurred on separate occasions, we have declined to use the offense
    as a predicate conviction for the ACCA enhancement or remanded the case to
    the district court for further factfinding.”); Owens, 753 Fed. App’x at 213–14
    (interpreting Fuller the same as the Kirkland court). Nonetheless, the Taylor
    court stated that, “though the Fuller court never addressed the Barlow
    standard,” “the Fuller court implicitly found that Fuller had carried his burden
    of proof by supplying some evidence that his offenses did not occur on different
    occasions.” Taylor, 263 Fed. App’x at 405. This a misstatement. It is true that
    “Fuller testified [at his sentencing hearing] that he and a friend entered into
    different buildings (or trailers) simultaneously.” 
    Fuller, 453 F.3d at 278
    . But
    the Fuller court stated:
    The district court found that Fuller[’s testimony] was not credible
    and that the robberies had occurred at least minutes apart. Fuller
    argues on appeal that nothing in the record supports the district
    court’s determination that the burglaries occurred on different
    occasions.
    Id. (emphasis added).
    The Fuller court did not rely on or mention again
    Fuller’s testimony.   Instead, the Fuller court looked only at the Shepard-
    approved indictments for the predicate ACCA burglaries and stated that,
    “[b]ased on the indictments alone, . . . we cannot determine as a matter of law
    that the burglaries occurred on different occasions.”
    Id. at 279.
    For this
    reason, the Fuller court vacated Fuller’s sentence.
    Id. at 279–80.
    In any case,
    as discussed above, even the Taylor court placed the burden on the government
    to prove that the offenses occurred on separate occasions; it simply found that
    the government had met this burden and that the burden therefore shifted to
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    the defendant to contradict the government. See Taylor, 263 Fed. App’x at
    404–05.
    All told, we see no reason to apply the Barlow burden here. We need
    only rely on our binding precedent in Fuller to conclude that the ACCA
    enhancement was improperly applied here. Nor are our opinions applying
    Barlow inconsistent with Fuller.
    Ultimately, the Shepard-approved documents in the record are
    inconclusive as to whether Young’s prior serious drug offense convictions
    constitute three separate transactions under § 924(e).
    CONCLUSION
    Because Louisiana aggravated assault with a firearm can be achieved
    through negligent conduct, it does not constitute a violent felony under §
    924(e). Further, the record does not support a finding that Young’s second and
    third serious drug offenses were “committed on occasions different from one
    another[.]” § 924(e). Accordingly, based on the record, Young does not have
    three qualifying prior convictions under the ACCA. The court REVERSES the
    district court’s denial of Young’s § 2255 motion, VACATES Young’s entire
    sentence, and REMANDS for resentencing.
    17