United States v. Eddie Webb ( 2020 )

Case: 17-11211 Document: 00515541230 Page: 1 Date Filed: 08/26/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 17-11211 August 26, 2020
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eddie Charles Webb,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CV-94
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Eddie Charles Webb, federal prisoner # 17417-077, pleaded guilty to
unlawful possession of a firearm by a convicted felon, and the district court
sentenced him under the Armed Career Criminal Act (ACCA) to 327 months
of imprisonment based on his three Texas burglary convictions. The district
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 17-11211 Document: 00515541230 Page: 2 Date Filed: 08/26/2020
No. 17-11211
court denied Webb’s 28 U.S.C. § 2255 motion to vacate, correct, or set aside
his sentence. We granted Webb a certificate of appealability on (1) whether
his § 2255 motion was timely filed, and (2) if so, whether Webb should
receive relief on his claim that he no longer qualifies for sentencing under the
ACCA.
Webb argues that his § 2255 motion was timely because he asserted
the right first recognized in Johnson v. United States, 135 S. Ct. 2551 (2015),
and filed the motion within one year of that decision. Webb further contends
that he is entitled to collateral relief under Johnson because Texas burglary
does not qualify as the generic offense of burglary for purposes of sentencing
under the ACCA. The Government has filed an opposed motion for
summary affirmance in light of United States v. Herrold, 941 F.3d 173, 175,
177, 182 (5th Cir. 2019) (en banc), and, in the alternative, an extension of time
to file a brief.
In the appeal of a denial of a § 2255 motion, we review the district
court’s factual findings for clear error and its legal conclusions de novo.
United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). In Herrold,
941 F.3d at 175, 177, 182, we concluded that, although the Texas burglary
statute consists of multiple subsections, the statute creates one indivisible
offense that constitutes generic burglary for purposes of sentencing under the
ACCA. Thus, Texas burglary is still a valid ACCA predicate violent felony
offense even after Johnson because it is generic burglary, and Johnson does
not implicate Webb’s ACCA predicate burglary convictions. See id. We
therefore need not address whether Webb’s § 2255 motion was timely filed.
See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
The judgment of the district court is AFFIRMED. The
Government’s motions for summary affirmance and, in the alternative, an
extension of time to file a brief are DENIED.
2