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Sherman Fields ( 2020 )


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  • Case: 20-50351     Document: 00515614069          Page: 1    Date Filed: 10/23/2020
United States Court of Appeals
for the Fifth Circuit                          United States Court of Appeals
Fifth Circuit
FILED
No. 20-50351                    October 23, 2020
Lyle W. Cayce
Clerk
In re: Sherman Lamont Fields,
Movant.
Motion for an order authorizing
the United States District Court for the
Western District of Texas to consider
a successive 28 U.S.C. § 2255 motion
Before Higginbotham, Graves, and Costa, Circuit Judges.
Per Curiam:*
Sherman Lamont Fields, who was sentenced to death, moves for
authorization to file a successive 28 U.S.C. § 2255 motion in which he intends
to challenge three convictions under 18 U.S.C. § 924(c)(1).            We may
authorize such a motion only if Fields’s claims rely on “newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense” or “a new rule
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
*
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opinion should not be published and is not precedent except under the limited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: 20-50351      Document: 00515614069           Page: 2     Date Filed: 10/23/2020
No. 20-50351
Fields invokes the latter ground. He argues that, in light of United
States v. Davis,
    139 S. Ct. 2319
    , 2336 (2019), he was erroneously convicted
and sentenced under section 924(c) based on predicate offenses that are not
“crimes of violence.”
    Id. at 2336. 
    And he contends that Davis has been made
retroactive to cases on collateral review by the Supreme Court.              The
government agrees that Supreme Court precedent makes Davis retroactive
to cases on collateral review. See Welch v. United States,
    136 S. Ct. 1257
    , 1268
(2016) (holding that rulings that “alter[] the range of conduct . . . that the law
punishes” are substantive and have “retroactive effect in cases on collateral
review” (quotation omitted)); Tyler v. Cain,
    533 U.S. 656
    , 666 (2001) (stating
that multiple cases taken together can “render a new rule retroactive” if logic
so dictates); see also In re Sparks,
    657 F.3d 258
    , 262 (5th Cir. 2011) (applying
Tyler to find that the combined effect of previous Supreme Court cases taken
together rendered a new rule retroactive “as a matter of logical necessity”).
Indeed, we have authorized a number of successive petitions based on Davis.
See, e.g., United States v. Dixon, 799 F. App’x 308, 308–09 (5th Cir. 2020)
(per curiam); In re Bocanegra, No. 20-10311 (5th Cir. June 2, 2020) (per
curiam); In re Woods, No. 19-30731 (5th Cir. Oct. 23, 2019) (per curiam).
While agreeing that Davis can serve as the basis for a successive
motion, the parties disagree about how many of Fields’s convictions are
affected by Davis. We agree with the government that two of them are.
Those two section 924(c) convictions stem from the predicate “crimes of
violence” of conspiracy to escape and/or escape from federal custody. Fields
has made a prima facie showing that neither is a crime of violence after Davis.
See United States v. Robinson, 783 F. App’x 401, 402–03 (5th Cir. 2019)
(holding that conspiring to escape from federal custody is not a crime of
violence after Davis) (per curiam); United States v. Taylor,
    933 F.2d 307
    , 309
(5th Cir. 1991) (listing elements of escape offense).
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Case: 20-50351       Document: 00515614069         Page: 3   Date Filed: 10/23/2020
No. 20-50351
Fields’s third challenged section 924(c) conviction, is based on a
predicate offense of carjacking. Carjacking remains a crime of violence post-
Davis, as it “has as an element the use, attempted use, or threatened use of
physical force.” 18 U.S.C. § 924(c)(3)(A); United Sates v. Jones,
    854 F.3d 737
    , 740 (5th Cir. 2017). Thus Fields has not demonstrated that the district
court need review this conviction in light of Davis.
Accordingly, IT IS ORDERED that Fields’s motion for
authorization is GRANTED IN PART and DENIED IN PART. Our
grant of authorization is tentative, however, in that the district court must
dismiss the motion without reaching its merits if the court determines that
Fields has failed to satisfy the requirements of section 2255(h). See 28 U.S.C.
§ 2244(b)(4); Reyes-Requena v. United States,
    243 F.3d 893
    , 897–99 (5th Cir.
2001).
3