indicating that a Louisiana offense’s status as a specific intent crime satisfies the identical force clause of the Armed Career Criminal Act
How later courts described this case
- indicating that a Louisiana offense’s status as a specific intent crime satisfies the identical force clause of the Armed Career Criminal Act
Written by the judges who cited it.
The opinion
Case: 19-60077 Document: 00515920174 Page: 1 Date Filed: 06/30/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 30, 2021
No. 19-60077 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Everett Earl Parker,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:16-CV-58
Before Davis, Duncan, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge:
Everett Earl Parker, federal prisoner # 01574-095, appeals the district
court’s judgment denying his 28 U.S.C. § 2255 motion to vacate, set aside,
or correct sentence. In 2003 Parker pleaded guilty to armed bank robbery in
violation of 18 U.S.C. § 2113(a) and (d) and brandishing a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)(1). The district court
imposed a mandatory life sentence for the armed bank robbery, as required
by the federal three-strikes law, 18 U.S.C. § 3559(c)(1), because the offense
was a “serious violent felony” and Parker had two prior convictions for
“serious violent felonies.” Parker argues that his life sentence should be
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No. 19-60077
vacated in light of Johnson v. United States, 1 wherein the Supreme Court held
that the “residual clause” in the definition of “violent felony” under the
Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. As set
forth below, because Parker’s prior convictions qualify as “serious violent
felonies” without relying on the “residual clause” of § 3559(c)(2)(F)(ii), we
AFFIRM.
On appeal from the denial of a § 2255 motion, this Court generally
reviews the district court’s legal conclusions de novo and its factual findings
for clear error. 2 Section 3559(c)(1)(A)(i) provides that a defendant “shall be
sentenced to life imprisonment” if he is convicted of a “serious violent
felony” and has two or more prior convictions for “serious violent felonies.”
For purposes of this provision, a “serious violent felony” is defined as one of
a list of enumerated “Federal or State offense[s], by whatever designation
and wherever committed, consisting of . . . robbery (as described in section
2111, 2113, or 2118)” (“enumerated offense clause”); an “offense punishable
by a maximum term of imprisonment of 10 years or more that has as an
element the use, attempted use, or threatened use of physical force against
the person of another” (“force clause”); or an offense “that, by its nature,
involves a substantial risk that physical force against the person of another
may be used in the course of committing the offense” (“residual clause”). 3
In Johnson, the Supreme Court examined the ACCA, which mandates
increased punishments for defendants convicted under 18 U.S.C. § 922(g)
who have three prior convictions for “violent felonies” or serious drug
1
576 U.S. 591, 597 (2015).
2
United States v. Cong Van Pham, 722 F.3d 320, 323 (5th Cir. 2013).
3
§ 3559(c)(2)(F).
2
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No. 19-60077
offenses. 4 The Court concluded that the so-called “residual clause” in
§ 924(e)(2)(B)(ii), which defined “violent felony” for purposes of the
ACCA in part as an offense that “otherwise involves conduct that presents a
serious potential risk of physical injury to another,” was unconstitutionally
vague and that imposing an increased sentence under that provision violated
due process. 5
In Sessions v. Dimaya, 6 the Supreme Court held that a similar residual
clause in 18 U.S.C. § 16(b) was unconstitutionally vague. 7 In United States v.
Davis, 8 the Court also held that the residual clause of § 924(c)(3)(B), which
is “almost identical” to the residual clause in § 16(b), was unconstitutionally
vague. The Supreme Court’s language in Davis may support an extension of
the rule to the residual clause in § 3559(c)(2)(F)(ii). Specifically, in reaching
its conclusion that § 924(c)(3)(B) was unconstitutionally vague, the Court
noted that § 924(c)(3)(B)’s residual clause bore “more than a passing
resemblance” to the residual clauses held unconstitutional in Johnson and
Dimaya. 9 The residual clause of § 3559(c)(2)(F)(ii) at issue in this matter is
almost identical to the residual clauses at issue in Dimaya and Davis. We need
not decide, however, whether Davis is applicable to the residual clause in
§ 3559(c)(2)(F)(ii) because, as set forth below and as the district court
determined, Parker’s prior convictions qualify as “serious violent felonies”
4
576 U.S. at 593.
5
Id. at 593-97.
6
138 S. Ct. 1204, 1223 (2018).
7
The residual clause at issue in Dimaya provided that a “crime of violence” is a
felony “that, by its nature, involves a substantial risk that physical force against the person
or property of another may be used in the course of committing the offense.” See § 16(b).
8
139 S. Ct. 2319, 2339 (2019).
9
Id. at 2325-26.
3
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No. 19-60077
under the “enumerated offense clause” and the “force clause” of
§ 3559(c)(2)(F).
As reflected in the Presentence Report (“PSR”), one of Parker’s prior
convictions was a federal conviction for “bank robbery,” which we can
assume was a conviction under § 2113. 10 Parker asserts that because the PSR
did not state the specific subsection of § 2113 his conviction fell under, then
the conviction was possibly for bank larceny under § 2113(b), which may not
qualify as a “serious violent felony.” After Parker’s opening brief was filed,
we granted the Government’s motion to supplement the record with
certified records pertaining to Parker’s prior bank robbery conviction. The
supplemental record clearly shows that Parker was convicted of “bank
robbery” under § 2113(a). As noted above, § 3559 defines the term “serious
violent felony” to include a list of enumerated offenses, including “a Federal
or State offense, by whatever designation and wherever committed,
consisting of . . . robbery (as described in section 2111, 2113, or 2118).” 11 We
hold that under the plain language of § 3559(c)(2)(F)(i), robbery under
§ 2113(a) is an enumerated offense that falls within the statute’s definition of
“serious violent felony.”
Parker was also previously convicted of Louisiana armed robbery,
which, at the time of the offense in 1970, was defined as “the theft of anything
of value from the person of another or which is in the immediate control of
another, by use of force or intimidation, while armed with a dangerous
10
Section 2113 is entitled “Bank robbery and incidental crimes” and provides for
a maximum sentence of 20 years for anyone who “by force and violence, or by intimidation,
takes, or attempts to take . . . property or money . . . [from] any bank, credit union, or any
savings and loan association.” § 2113(a). The Government also filed a “Notice of Prior
Serious Violent Felony” conviction stating that Parker was previously convicted in federal
court of “Bank Robbery” and in a Louisiana court of “Armed Robbery.”
11
See § 3559(c)(2)(F)(i).
4
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No. 19-60077
weapon.” 12 “Theft” was defined as “the misappropriation or taking of
anything of value which belongs to another, either without the consent of the
other to the misappropriation or taking, or by means of fraudulent conduct,
practices or representations.” 13
The definition of Louisiana armed robbery is almost identical to the
definition of robbery set forth in § 2111, which is an enumerated offense
under § 3559(c)(2)(F)(i). Specifically, § 2111 provides: “Whoever, within
the special maritime and territorial jurisdiction of the United States, by force
and violence, or by intimidation, takes or attempts to take from the person or
presence of another anything of value, shall be imprisoned not more than
fifteen years.” Because Louisiana armed robbery is a “State offense” that
meets the definition of robbery as described in § 2111, it is a “serious violent
felony” under the enumerated offense clause of § 3559(c)(2)(F)(i).
We additionally determine that Louisiana armed robbery is a “serious
violent felony” under the “force clause” of § 3559(c)(2)(F)(ii). This Court
recently held that Louisiana armed robbery is a “violent felony” under the
ACCA’s force clause. 14 The language of the ACCA’s force clause,
§ 924(e)(2)(B)(i), is very similar to the language of the force clause in
§ 3559(c)(2)(F)(ii). 15 We therefore hold that Louisiana armed robbery falls
12
La. Rev. Stat. Ann. § 14:64 (1970).
13
Id. § 14:67.
14
United States v. James, 950 F.3d 289, 290 (5th Cir. 2020), cert. denied, 141 S. Ct.
1396 (2021). Although James involved the current version of the Louisiana armed robbery
statute, there is no material difference between the current and prior versions of the statute.
The prior version used the word “theft” in the definition of armed robbery, while the
current version incorporates the definition of theft (“the taking of anything of value
belonging to another”) into the definition of armed robbery.
15
United States v. Rose, 587 F.3d 695, 704 & n.7 (5th Cir. 2009) (per curiam).
5
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No. 19-60077
within the definition of “serious violent felony” under the “force clause” of
§ 3559(c)(2)(F)(ii). 16
Parker asserts that there is an “absence of reliable information” that
he was armed during the robbery or that any victim was injured. As the
Government points out, however, § 3559(c)(3)(A) places the burden on
Parker to establish by “clear and convincing evidence” that no dangerous
weapon was involved in the offense and that the offense did not result in
injury to the victim in order for a prior conviction not to be considered a
“serious violent felony.” Parker produced no such evidence here.
Because Parker’s prior convictions qualify as “serious violent
felonies” without relying on the “residual clause” in § 3559(c)(2)(F)(ii), the
district court did not err in denying Parker’s § 2255 motion. Accordingly, the
district court’s judgment is AFFIRMED.
16
We note that the Supreme Court’s recent decision in Borden v. United States, No.
19-5410, 2021 WL 2367312 (S. Ct. June 10, 2021), which held that “reckless offense[s]” do
not satisfy the ACCA’s force clause, does not affect our holding in this matter because
Louisiana armed robbery is a “specific intent crime.” See State v. May, 339 So.2d 764, 774
(La. 1976).
6