United States v. Karlos Marshall ( 2020 )

Case: 18-10058 Document: 00515592646 Page: 1 Date Filed: 10/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 7, 2020
No. 18-10058 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Karlos Marshall,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-1916
USDC No. 3:10-CR-158-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
In 2011, Karlos Marshall was convicted of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Marshall received an
enhanced 15-year prison sentence under 18 U.S.C. § 924(e), the Armed
*
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opinion should not be published and is not precedent except under the limited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: 18-10058 Document: 00515592646 Page: 2 Date Filed: 10/07/2020
No. 18-10058
Career Criminal Act (ACCA), based in relevant part on his prior Texas
conviction for aggravated assault in violation of Texas Penal Code
§§ 22.01(a)(1) and 22.02(a)(2). We affirmed on direct appeal, and the
Supreme Court denied Marshall’s petition for a writ of certiorari. United
States v. Marshall, 487 F. App’x 895, 896-901 (5th Cir. 2012), cert. denied,
568 U.S. 1110 (2013). Marshall filed an unsuccessful 28 U.S.C. § 2255
motion, and we denied a certificate of appealability (COA).
Following the Supreme Court’s decision in Johnson v. United States,
576 U.S. 591, 606 (2015), which struck down the residual clause of the
violent-felony definition found at § 924(e)(2)(B)(ii) as unconstitutionally
vague, we granted Marshall authorization to file a successive § 2255 motion
challenging the validity of his enhanced 15-year sentence. The district court
denied relief on the merits, concluding that, even without relying on the
residual clause, Marshall’s prior Texas conviction for aggravated assault with
a deadly weapon met the requirements for an enhanced sentence under the
still-valid elements clause of the ACCA. Marshall timely appealed.
Marshall persists that, post-Johnson, his prior Texas conviction for
aggravated assault with a deadly weapon was improperly used as a predicate
violent felony for purposes of the ACCA. He asserts that several of this
court’s decisions, published and unpublished, when taken together, appear
to foreclose his argument. He maintains, though, that those cases were
wrongly decided and raises the issue here to preserve it for further review.
The Government has filed an unopposed motion for summary affirmance.
We conclude that summary affirmance is not appropriate here, see Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), and the
Government’s motion is DENIED. Nevertheless, this case can be resolved
on the record before us. We therefore dispense with further briefing, and the
Government’s alternative motion for an extension of time for briefing is
DENIED as unnecessary.
2
Case: 18-10058 Document: 00515592646 Page: 3 Date Filed: 10/07/2020
No. 18-10058
A prisoner making a Johnson claim in a successive § 2255 motion bears
the burden of proving that “it was more likely than not that he was sentenced
under the residual clause.” United States v. Clay, 921 F.3d 550, 559 (5th Cir.
2019), cert. denied, 140 S. Ct. 866 (2020). In considering the jurisdictional
question presented here, we “must look to the law at the time of sentencing
to determine whether a sentence was imposed under” the now-invalid
residual clause of § 924(e) or one of its remaining clauses. Wiese, 896 F.3d at
724; see also Clay, 921 F.3d at 556. We may also consider the sentencing
record, the presentence report, and other relevant materials before the
sentencing court. Wiese, 896 F.3d at 725. Our review of the law and other
materials satisfies us that Marshall has failed to meet his burden of showing
that it is “more likely than not” that the sentencing court relied upon the
residual clause. See Clay, 921 F.3d at 559.
In light of the foregoing, the district court lacked jurisdiction to
consider the merits of Marshall’s successive § 2255 motion, and we lack
jurisdiction to do so on appeal. Wiese, 896 F.3d at 723, 726. Accordingly, we
VACATE the judgment of the district court denying relief and remand with
instructions to DISMISS Marshall’s § 2255 motion for lack of jurisdiction.
3