In Re: Andreco Lott

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10866
United States Court of Appeals
Fifth Circuit
FILED
In re: ANDRECO LOTT, September 26, 2016
Lyle W. Cayce
Movant Clerk
Motion for an order authorizing
the United States District Court for the
Northern District of Texas, Fort Worth to consider
a successive 28 U.S.C. § 2255 motion
Before SMITH, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:
A jury convicted Andreco Lott, federal prisoner # 27068-177, of one count
of conspiring to commit bank robbery, two counts of bank robbery and aiding
and abetting, two counts of conspiring to obstruct interstate commerce by
robbery and aiding and abetting, and four counts of using and carrying a
firearm during a crime of violence and aiding and abetting. He now moves for
authorization to file a successive 28 U.S.C. § 2255 motion challenging his
convictions under 18 U.S.C. § 924(c) for using and carrying a firearm during a
crime of violence and aiding and abetting as well as his convictions for bank
robbery and conspiring to obstruct interstate commerce by robbery and aiding
and abetting. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h); Reyes-Requena v. United
States, 243 F.3d 893, 897-99 (5th Cir. 2001). Invoking Johnson v. United
States, 135 S. Ct. 2551 (2015), Lott argues that these convictions are invalid.
He also argues that his firearms and bank robbery convictions are invalid in
No. 16-10866
light of the Supreme Court’s recent decisions in Mathis v. United States, 136
S. Ct. 2243 (2016), and McDonnell v. United States, 136 S. Ct. 2355 (2016).
Lott has not made the requisite showing. We have held that Johnson
does not provide a basis for authorizing a successive § 2255 motion challenging
a conviction under § 924(c). See In re Fields, 826 F.3d 785, 786-87 (5th Cir.
2016). Moreover, the bank robbery and conspiracy to obstruct interstate
commerce by robbery statutes that Lott was convicted under do not contain
language similar to the provision that the Supreme Court found
unconstitutionally vague in Johnson, compare Johnson, 135 S. Ct. at 2555-57,
with 18 U.S.C. § 2113(a) (bank robbery), and 18 U.S.C. § 1951 (conspiracy to
obstruct interstate commerce by robbery), and so Johnson has no bearing on
them. Finally, Lott has failed to make a prima facie showing that Mathis and
McDonnell set forth new rules of constitutional law that have been made
retroactive to cases on collateral review. See § 2255(h)(2); § 2244(b)(3)(C);
Reyes-Requena, 243 F.3d at 897-99.
Accordingly, IT IS ORDERED that Lott’s motion for authorization is
DENIED. IT IS FURTHER ORDERED that Lott’s motion to hold his case in
abeyance in light of the Supreme Court’s grant of certiorari in Beckles v. United
States, 136 S. Ct. 2510 (2016), is DENIED.
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