Petition for Writ of Certiorari — Wendell Taylor, Petitioner v. United States

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APPENDIX 1

Case 3:08-cr-00012-DCB-MTP Document 26 Filed 06/06/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

WENDELL TAYLOR

PETITIONER

VS.

CRIMINAL NO. 3:08-cr-12(DCB)

CIVIL NO. 3:16-cv-108(DCB)

UNITED STATES OF AMERICA

RESPONDENT

MEMORANDUM OPINION AND ORDER

This cause is before the Court on defendant/petitioner Wendell

Taylor’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody (Docket Entry 22 in

cause no. 3:08-cr-12).

After conducting the preliminary review

required by Rule 4 of the Rules Governing Section 2255 Proceedings

for the United States Courts, the Court found that the Government

should be required to “file an answer, motion or other response” as

required by Rule 4.

(Docket Entry 23).

The Government filed a Motion to Dismiss (Docket Entry 24),

moving to dismiss the petitioner’s § 2255 motion on grounds that

Taylor expressly waived his right to bring such a motion.

February

2008,

federal

grand

jury

returned

indictment charging Taylor with being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(e).

(Docket Entry 1). Taylor pled guilty, and on February 3, 2009, the

Court sentenced him to 151 months in prison followed by a five-year

term of supervised release.

(Minute Entry of 02/03/2009).

February 11, 2016, Taylor filed the instant § 2255 motion seeking

Case 3:08-cr-00012-DCB-MTP Document 26 Filed 06/06/18 Page 2 of 5

collateral review of his 2009 sentence.

Specifically,

Taylor

seeks

reopen

(Docket Entry 22).

his

case

for

further

sentencing proceedings in light of Johnson v. United States, 135

S.Ct. 2551 (2015).

However, Taylor specifically waived his right

to attack his sentence when he signed a plea agreement.

Pursuant

to Federal Rule of Criminal Procedure 11(c), Taylor entered a

guilty plea predicated on his signed plea agreement. (Minute Entry

of 10/07/08).

Taylor’s plea and the plea agreement were accepted

by the Court.

Id.

In his written plea agreement, entered into

with the advice of counsel1, Taylor specifically waived his right

to attack his sentence.

Paragraphs 13 and 13(b) of the plea

agreement evidence such:

Defendant, knowing and understanding all of the matters

aforesaid, including the maximum possible penalty that

could be imposed, and being advised of his rights to

remain silent, to trial by jury, to subpoena witnesses on

his own behalf, to confront the witnesses against him,

and to appeal the conviction and sentence, in exchange

for the recommendations and concessions made by the U.S.

Attorney’s Office in this plea agreement hereby expressly

waives the above rights and the following rights:

The right to contest the conviction and sentence or the

manner in which the sentence was imposed in any postconviction proceeding, including but not limited to a

motion brought under Title 28, United States Code,

Section 2255 ....

(Minute Entry of 10/07/08, Plea Agreement ¶¶ 13, 13(b)(emphasis

added). When Taylor signed his plea agreement, he expressly waived

At the time Taylor executed the plea agreement, he was

represented by experienced counsel, attorney Kathy Nester, who also

signed the plea agreement.

Case 3:08-cr-00012-DCB-MTP Document 26 Filed 06/06/18 Page 3 of 5

his right to appeal his conviction and his sentence in any postconviction proceedings.

Furthermore, the Court accepted Taylor’s

guilty plea, entered a judgment of conviction, and sentenced

Taylor.

(Minute Entry of 02/03/2009).

Despite having waived his right to attack his sentence through

a § 2255 motion, Taylor filed the instant Motion pursuant to 28

U.S.C. § 2255 (Docket Entry 22).

“As a general rule, a voluntary, unconditional guilty plea

waives all nonjurisdictional defects in the proceedings against the

defendant.”

United States v. Hoctel, 154 F.3d 506, 507 (5th Cir.

1998).

addition

the

general

waiver

resulting

from

defendant’s unconditional guilty plea, a defendant may agree to

surrender his right to contest his sentencing as part of a plea

agreement with the Government.

Id. at 508.

Courts have long enforced waivers of collateral-attack rights

in plea agreements.

See, e.g., United States v. Wilkes, 20 F.3d

651, 653 (5th Cir. 1994)(“As a general matter, therefore - and at

least under the facts and circumstances of this case - an informed

and voluntary waiver of post-conviction relief is effective to bar

such relief.”); see also Garcia-Santos v. United States, 273 F.3d

506, 509 (2nd Cir. 2001).

This is true even where the grounds for

the attack arise after the plea agreement is executed. See GarciaSantos, 273 F.3d at 509 (providing prudential and policy reasons).

To date, the Fifth Circuit has recognized two exceptions to

Case 3:08-cr-00012-DCB-MTP Document 26 Filed 06/06/18 Page 4 of 5

this general rule: (1) a claim of ineffective assistance if “the

claimed ineffective assistance directly affected the validity of

that waiver or the plea itself” and (2) a sentencing claim where

the sentence “exceeds the statutory maximum” penalty.

See United

States v. Hollins, 97 Fed.App’x 477, 479 (5th Cir. 2004).

exception applies to Taylor.

Neither

Taylor’s § 2255 motion sets forth no

allegations of ineffective counsel or that any ineffectiveness

invalidated his guilty plea. Furthermore, Taylor cannot claim that

his 151 month sentence exceeds the statutory maximum penalty.

According

the

U.S.

Probation

Office’s

Presentence

Investigation Report (“PSIR”), the minimum term of imprisonment is

15 years and the maximum term is life, pursuant to 18 U.S.C. §

924(e).

(Docket Entry 18, ¶ 92).

Additionally, pursuant to

U.S.S.G. Chapter 5, Part A, based on a total offense level of 30

and a criminal history category of V, the guideline imprisonment

range is 151 to 188 months; but due to the statutory minimum, the

guideline range becomes 180 to 188 months.

(Id., ¶ 93).

For

reasons stated at Taylor’s sentencing on February 4, 2009, the

Court sentenced Taylor to serve 151 months in prison, clearly not

exceeding the statutory maximum penalty.

As for Johnson v. United States, 135 S.Ct. 2551 (2015), the

Supreme Court has held that Johnson-style analysis does not apply

to cases involving the residual clause definition of a “crime of

violence” in U.S.S.G. § 41B.2(a)(2), nor would it apply to U.S.S.G.

Case 3:08-cr-00012-DCB-MTP Document 26 Filed 06/06/18 Page 5 of 5

§ 2L1.2.

See Beckles v. United States, 137 S.Ct. 886 (2017).

Therefore, Taylor’s arguments are predicated exclusively on

alleged errors in guidelines calculations, errors which he agreed

not to raise in an appeal or in a collateral attack of his

sentence.

Because

Taylor

voluntarily

waived

his

right

collaterally attack his sentence in a § 2255 motion, his present

motion must be dismissed.

In conclusion, the Court agrees with the Government that

Taylor’s § 2255 motion must be dismissed as waived.

ACCORDINGLY,

IT IS HEREBY ORDERED that the Government’s Motion to Dismiss

(Docket Entry 24) is GRANTED;

FURTHER ORDERED that defendant/petitioner Wendell Taylor’s

Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody (Docket Entry 22 in cause

no. 3:08-cr-12) is DISMISSED AS WAIVED.

A Final Judgment dismissing this case with prejudice shall be

entered this day.

SO ORDERED, this the 6th day of June, 2018.

/s/ David Bramlette

UNITED STATES DISTRICT JUDGE

APPENDIX 2

Case: 18-60425

Document: 00515356569

Page: 1

Date Filed: 03/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-60425

Summary Calendar

March 24, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

WENDELL TAYLOR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:16-CV-108

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM: *

In 2008, Wendell Taylor pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1).

Taylor’s plea agreement

contained a waiver of his right to appeal or collaterally challenge his conviction

or sentence on any ground. In his original sentencing, he was subject to an

enhanced statutory minimum sentence of 15 years (180 months) under the

Armed Career Criminal Act (ACCA) because he had, relevantly, “three

previous convictions . . . for a violent felony[.]” 18 U.S.C. § 924(e). Taylor avers

* Pursuant to 5TH CIR. R. 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

CIR. R. 47.5.4.

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Document: 00515356569

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Date Filed: 03/24/2020

No. 18-60425

that his ACCA predicates were Mississippi convictions for house burglary,

burglary of an occupied dwelling, and manslaughter. 1 Based on the same

predicates, Taylor also received a career-offender guidelines enhancement. As

a result, his minimum sentence would have been 180 months; but, prior to

sentencing, the Government moved for a downward departure and to “impose

a sentence below the statutory minimum” based on Taylor’s substantial

assistance. See U.S.S.G. § 5K1.1. Apparently granting the motion, the district

court sentenced Taylor to 151 months of imprisonment, followed by five years

of supervised release. Taylor did not appeal his conviction or sentence.

In 2015, the Supreme Court issued Johnson v. United States, which

invalidated, as unconstitutionally vague, the ACCA’s “residual clause”

definition of “violent felony.”

135 S. Ct. 2551, 2555-57 (2015) (“Samuel

Johnson”). Subsequently, Taylor filed a 28 U.S.C. § 2255 motion to vacate his

ACCA and career-offender guideline sentences in light of Samuel Johnson. In

pertinent part, he argued that his manslaughter conviction no longer qualifies

as a “violent felony” under the ACCA following Samuel Johnson because none

of the relevant Mississippi manslaughter statutes has “as an element the use,

attempted use, or threatened use of physical force against the person of

another.” § 924(e)(2)(B)(i); cf. United States v. Reyes-Contreras, 910 F.3d 169,

179-80 (5th Cir. 2018) (en banc) (explaining the meaning of use of force in the

context of a sentencing guidelines provision for a crime of violence); United

States v. Griffin, 946 F.3d 759 (5th Cir. 2020) (concluding that Mississippi

aggravated assault was a violent felony under the ACCA).

1 The indictment also lists a fourth § 922(g)(1) predicate, a 1995 Mississippi conviction

for business burglary. In his § 2255 motion, Taylor avers that “the prosecution abandoned

its position that business burglary i[s] a ‘violent felony’ under the ACCA,” but cites nowhere

in the record where that occurred. Given our ruling, this issue is irrelevant.

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No. 18-60425

Without reaching the merits of the Samuel Johnson argument, the

district court granted the Government’s motion to dismiss, agreeing that

Taylor’s collateral attack of his ACCA sentence was barred by the appeal

waiver in his plea agreement.

The court also denied a certificate of

appealability (COA). On appeal, we granted a COA “on the issue of whether

[Taylor’s Samuel] Johnson claim is barred by the collateral-review waiver.”

Although not mentioned by the parties in their 2019 briefing, Taylor was

released from prison in December of 2018. We must consider our jurisdiction

sua sponte. However, we conclude that this appeal is not moot because Taylor’s

term of supervised release is still in effect. See United States v. Johnson, 529

U.S. 53, 60 (2000); see also United States v. Solano-Hernandez, 761 F. App’x

276, 280 (5th Cir. 2019) (concluding that challenge to a sentence was not moot

because the defendant remained subject to a period of supervised release, even

though he had been released from prison and had not specifically challenged

his supervised release sentence on appeal). We therefore address the parties’

arguments on the waiver issue. 2

Taylor argues that his predicate crimes are no longer violent felonies as

a result of Samuel Johnson. He claims that his appeal waiver cannot apply to

this argument about Samuel Johnson since such an argument did not exist at

the time of his waiver. He further argues that we have conflicting precedents

on the applicability of waiver in this situation but relies upon Smith v.

Blackburn, 632 F.2d 1194 (5th Cir. 1980) and United States v. Wright, 681 F.

App’x 418 (5th Cir. 2017) to support his argument. In turn the Government

contends that, under the rule of orderliness, the relevant case is United States

v. Creadell Burns, 433 F.3d 442, 443-44 (5th Cir. 2005), which held that a party

Taylor sought an initial hearing en banc on the question of whether a party’s waiver

of collateral review encompasses legal claims arising under subsequent law announced

following the waiver. The full court denied that request.

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No. 18-60425

sentenced under the mandatory Guidelines scheme who waived his right to

collaterally attack his sentence could not benefit from the Supreme Court’s

January 2005 decision in United States v. Booker, 542 U.S. 296 (2005), that

rendered the Guidelines advisory only. Creadell Burns, 433 F.3d at 449, 451.

Thus, Burns’s appeal waiver was not invalidated “merely because the waiver

was made before Booker.” Id. at 450-51. In so holding, the court noted that

Burns had “know[n] the appellate rights he had” at the time he voluntarily

waived them. Id. at 450.

The Government avers that Creadell Burns resolves the waiver issue

against Taylor because Taylor knowingly and voluntarily waived his right to

collaterally attack his sentence in pleading guilty and his waiver survived the

changes wrought by Samuel Johnson. Taylor counters that Creadell Burns is

distinguishable because a decision prior to that defendant’s waiver showed the

pathway to Booker. 3 433 F.3d at 450 n.9. On the other hand, Taylor asserts,

he “had no notice whatsoever that the retroactively applicable holdings in

[Samuel] Johnson would affect his sentence” at the time he pleaded guilty

because Samuel Johnson would not be decided for another six years. The

Government replies by noting that the Creadell Burns panel enforced the

appeal waiver despite observing that, while he was aware of Blakely at the

time of his plea, “‘Burns did not know whether or how the Supreme Court

would apply its Blakely holding to the Guidelines.’” Id.

Taylor additionally argues that this court should disregard Creadell

Burns because it conflicts with Smith and, under this court’s rule of

orderliness, Smith prevails. United States v. Walker, 302 F.3d 322, 325 (5th

Cir. 2002) (holding that under the rule of orderliness, “the earlier precedent

controls”). The Government contends that because Smith did not involve a

3 The decision in question was Blakely v. Washington, 542 U.S. 296, 303-04 (2004).

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collateral-review waiver, it does not conflict with Creadell Burns and,

therefore, does not control under the rule of orderliness. 4

We conclude that Creadell Burns governs under the rule of orderliness

because Smith did not include a plea agreement waiver. See Smith, 632 F.2d

at 1195. For that reason, Smith is not dispositive under the rule of orderliness.

See Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399,

405 (5th Cir. 2012) (applying the rule of orderliness where “a previous panel .

. . resolved this question,” meaning the precise question at issue in the later

appeal) (emphasis added). We note that in Wright, our court held that the

Government had “waived the waiver” argument.

Further, that case is

unpublished and, therefore, not controlling. Indeed, a different unpublished

opinion from our court is more persuasive: United States v. Timothy Burns, 770

F. App’x 187 (5th Cir.), cert. denied, 140 S. Ct. (2019). Burns pleaded guilty to

armed bank robbery and brandishing a firearm during a crime of violence,

waiving his rights to appeal and collateral review, and was sentenced as a

career offender under the Guidelines. 770 F. App’x at 189. Following the

issuance of Samuel Johnson, Burns filed a § 2255 motion “asserting that his

prior convictions no longer qualified him for the career offender enhancement

and that his brandishing conviction should be vacated.” Id. Relevantly, Burns

argued that his collateral-review waiver was unenforceable because he could

not waive a right “that did not exist at the time he agreed to the waiver,” citing

as support the Sixth Circuit’s opinion in United States v. McBride, 826 F.3d

293, 295 (6th Cir. 2016) (holding that “McBride could not have intentionally

4 The Government further contends that Smith is inapposite because the defendant

therein “was forced to choose between two unconstitutional choices”—trial by either a fiveperson jury or a six-person jury requiring the consent of only five to convict—whereas “[t]here

is nothing unconstitutional about waiving post-conviction relief” as Taylor did. We do not

reach this argument.

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No. 18-60425

relinquished a claim based on [Samuel] Johnson, which was decided after his

sentencing”). Timothy Burns, 770 F. App’x at 190.

We distinguished McBride because the plea agreement in that case did

not include an appeal waiver. 770 F. App’x at 190; see McBride, 826 F.3d at

294-95. We noted that we “continue[s] to enforce waivers despite changes in

law,” and held that Burns’s argument was “foreclosed” by Creadell Burns.

Timothy Burns, 770 F. App’x at 190-91. Accordingly, we concluded that Burns

had waived his collateral challenge to the career offender enhancement and

affirmed the denial of § 2255 relief. Id. at 191. Although as an unpublished

opinion, Timothy Burns is not controlling precedent, it is “highly persuasive”

because it rejected an argument materially identical to Taylor’s. United States

v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011); see Ballard v. Burton, 444

F.3d 391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

In sum, we conclude that the district court did not err in dismissing

Taylor’s § 2255 claim due to his plea waiver. AFFIRMED.

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Document: 00515356596

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Date Filed: 03/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 18-60425

Summary Calendar

_______________________

D.C. Docket No. 3:16-CV-108

United States Court of Appeals

Fifth Circuit

FILED

March 24, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

WENDELL TAYLOR,

Defendant - Appellant

Appeal from the United States District Court for the

Southern District of Mississippi

Before WIENER, HAYNES, and COSTA, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on file.

It is ordered and adjudged that the judgment of the District Court is

affirmed.

APPENDIX 3

United States v. Taylor, 806 Fed.Appx. 276 (2020)

Affirmed.

806 Fed.Appx. 276

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure 32.1

generally governing citation of judicial decisions

issued on or after Jan. 1, 2007. See also

U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

United States Court of Appeals, Fifth Circuit.

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

West Headnotes (2)

[1]

Defendant's release from prison did not render

moot claim that prior Mississippi conviction

for manslaughter no longer qualified as violent

felony, within meaning of Armed Career

Criminal Act (ACCA), following invalidation

of ACCA's residual clause defining “violent

No.

60425

Summary Calendar

FILED March 24, 2020

following

Johnson v. United States. United States District

Court for the Southern District of Mississippi, David C.

Bramlette, Senior District Judge, granted Government's

motion to dismiss, 2018 WL 2728491, and defendant

appealed.

Holdings: The Court of Appeals held that:

[1] defendant's release from prison did not render moot claim

that prior Mississippi conviction for manslaughter no longer

qualified as “violent felony” under ACCA, and

[2] defendant's waiver of right to appeal or collaterally

challenge enhanced sentence was not rendered invalid by

Johnson v. United States.

Mootness

110 Criminal Law

110XXIV Review

110XXIV(L) Scope of Review in General

110XXIV(L)3 Questions Considered in General

110k1134.26 Mootness

UNITED STATES of America, Plaintiff-Appellee

Wendell TAYLOR, Defendant-Appellant

Synopsis

Background: Defendant convicted on guilty plea of

possession of firearm by convicted felon filed motion

to vacate, set aside or correct sentence, based on claim

that prior Mississippi conviction for manslaughter was no

longer “violent felony” that could serve as predicate to

enhance sentence under Armed Career Criminal Act (ACCA),

Criminal Law

felony” under

Johnson v. United States,

where he remained on supervised release.

U.S.C.A. § 924(e).

1 Cases that cite this headnote

[2]

Criminal Law

Issues considered

Criminal Law

contendere plea

Effect of guilty or nolo

110 Criminal Law

110XXIV Review

110XXIV(D) Right of Review

110k1025 Right of Defendant to Review

110k1026.10 Waiver or Loss of Right

110k1026.10(2) Plea of Guilty or Nolo

Contendere

110k1026.10(4) Issues considered

110 Criminal Law

110XXX Post-Conviction Relief

110XXX(A) In General

110k1434 Effect of guilty or nolo contendere plea

Defendant's waiver of right to appeal or

collaterally challenge his enhanced sentence

for possession of firearm by convicted felon

on any ground was not rendered invalid,

under rule of orderliness, following subsequent

invalidation of residual clause's definition of

“violent felony” under Armed Career Criminal

United States v. Taylor, 806 Fed.Appx. 276 (2020)

Act (ACCA) in

Johnson v. United States, and

thus, plea waiver barred postconviction review

of claim that prior Mississippi conviction for

manslaughter no longer qualified as “violent

felony,” within meaning of ACCA.

U.S.C.A. § 924(e).

but, prior to sentencing, the Government moved for a

downward departure and to “impose a sentence below the

statutory minimum” based on Taylor’s substantial assistance.

See

U.S.S.G. § 5K1.1. Apparently granting the motion,

the district court sentenced Taylor to 151 months of

imprisonment, followed by five years of supervised release.

Taylor did not appeal his conviction or sentence.

*277 Appeal from the United States District Court for the

Southern District of Mississippi, USDC No. 3:16-CV-108

Attorneys and Law Firms

Gregory Layne Kennedy, Esq., Assistant U.S. Attorney, Erin

O'Leary Chalk, Assistant U.S. Attorney, U.S. Attorney's

Office, Southern District of Mississippi, Jackson, MS, for

Plaintiff - Appellee

Michael L. Scott, Esq., Thomas Creagher Turner, Jr.,

Esq., Federal Public Defender's Office, Southern District of

Mississippi, Jackson, MS, for Defendant - Appellant

Before WIENER, HAYNES, and COSTA, Circuit Judges.

Opinion

PER CURIAM: *

Pursuant to 5th Cir. R. 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 Cir. R. 47.5.4.

In 2008, Wendell Taylor pleaded guilty to being a felon in

possession of a firearm, in violation of

18 U.S.C. § 922(g)

(1). Taylor’s plea agreement contained a waiver of his right

to appeal or collaterally challenge his conviction or sentence

on any ground. In his original sentencing, he was subject

to an enhanced statutory minimum sentence of 15 years

(180 months) under the Armed Career Criminal Act (ACCA)

because he had, relevantly, “three previous convictions ...

for a violent felony[.]”

18 U.S.C. § 924(e). Taylor avers

that his ACCA predicates were Mississippi convictions

for house burglary, burglary of an occupied dwelling, and

manslaughter. 1 Based on the same predicates, Taylor also

received a career-offender guidelines enhancement. As a

result, his minimum sentence would have been 180 months;

The indictment also lists a fourth

§ 922(g)

(1) predicate, a 1995 Mississippi conviction for

business burglary. In his § 2255 motion, Taylor

avers that “the prosecution abandoned its position

that business burglary i[s] a ‘violent felony’ under

the ACCA,” but cites nowhere in the record

where that occurred. Given our ruling, this issue is

irrelevant.

In 2015, the Supreme Court issued

Johnson v. United

States, which invalidated, *278 as unconstitutionally vague,

the ACCA’s “residual clause” definition of “violent felony.”

––– U.S. ––––, 135 S. Ct. 2551, 2555-57, 192 L.Ed.2d 569

(2015) (“

Samuel Johnson”). Subsequently, Taylor filed a

28 U.S.C. § 2255 motion to vacate his ACCA and careeroffender guideline sentences in light of

Samuel Johnson.

In pertinent part, he argued that his manslaughter conviction

no longer qualifies as a “violent felony” under the ACCA

following

Samuel Johnson because none of the relevant

Mississippi manslaughter statutes has “as an element the use,

attempted use, or threatened use of physical force against the

person of another.”

§ 924(e)(2)(B)(i); cf. United States v.

Reyes-Contreras, 910 F.3d 169, 179-80 (5th Cir. 2018) (en

banc) (explaining the meaning of use of force in the context

of a sentencing guidelines provision for a crime of violence);

United States v. Griffin, 946 F.3d 759 (5th Cir. 2020)

(concluding that Mississippi aggravated assault was a violent

felony under the ACCA).

Without reaching the merits of the

Samuel Johnson

argument, the district court granted the Government’s motion

to dismiss, agreeing that Taylor’s collateral attack of his

ACCA sentence was barred by the appeal waiver in his plea

agreement. The court also denied a certificate of appealability

(COA). On appeal, we granted a COA “on the issue of

United States v. Taylor, 806 Fed.Appx. 276 (2020)

whether [Taylor’s

Samuel]

the collateral-review waiver.”

Johnson claim is barred by

[1] Although not mentioned by the parties in their 2019

briefing, Taylor was released from prison in December of

2018. We must consider our jurisdiction sua sponte. However,

we conclude that this appeal is not moot because Taylor’s term

of supervised release is still in effect. See

United States

v. Johnson, 529 U.S. 53, 60, 120 S.Ct. 1114, 146 L.Ed.2d

39 (2000); see also United States v. Solano-Hernandez, 761

F. App'x 276, 280 (5th Cir. 2019) (concluding that challenge

to a sentence was not moot because the defendant remained

subject to a period of supervised release, even though he had

been released from prison and had not specifically challenged

his supervised release sentence on appeal). We therefore

The Government avers that

Creadell Burns resolves

the waiver issue against Taylor because Taylor knowingly

and voluntarily waived his right to collaterally attack his

sentence in pleading guilty and his waiver survived the

changes wrought by

Samuel Johnson. Taylor counters

that

Creadell Burns is distinguishable because a decision

prior to that defendant’s waiver showed the pathway to

Booker. 3

433 F.3d at 450 n.9. On the other hand, Taylor

asserts, he “had no notice whatsoever that the retroactively

applicable holdings in [

Samuel]

Johnson would affect

his sentence” at the time he pleaded guilty because Samuel

Johnson would not be decided for another six years. The

address the parties’ arguments on the waiver issue. 2

Government replies by noting that the

Creadell Burns

panel enforced the appeal waiver despite observing that, while

he was aware of

Blakely at the time of his plea, “ ‘Burns

did not know whether or how the Supreme Court would apply

Taylor sought an initial hearing en banc on the

question of whether a party’s waiver of collateral

review encompasses legal claims arising under

subsequent law announced following the waiver.

The full court denied that request.

its

Taylor argues that his predicate crimes are no longer violent

felonies as a result of

Samuel Johnson. He claims that his

appeal waiver cannot apply to this argument about Samuel

Johnson since such an argument did not exist at the time of his

waiver. He further argues that we have conflicting precedents

on the applicability of waiver in this situation but relies upon

Smith v. Blackburn, 632 F.2d 1194 (5th Cir. 1980) and

United States v. Wright, 681 F. App'x 418 (5th Cir. 2017) to

support his argument. In turn the Government contends that,

under the rule of orderliness, the relevant case is

United

States v. Creadell Burns, 433 F.3d 442, 443-44 (5th Cir.

2005), which held that a party sentenced under the mandatory

Guidelines scheme who waived his right to collaterally attack

his sentence could not benefit from the Supreme Court’s

January 2005 decision in

Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2005), that rendered

the Guidelines advisory only.

Creadell Burns, 433 F.3d at

449, 451. Thus, Burns’s appeal waiver was not invalidated

“merely because the waiver was made before Booker.” Id.

at 450-51. In so holding, the court noted that Burns had

“know[n] the appellate rights he had” at *279 the time he

voluntarily waived them.

Blakely holding to the Guidelines.’ ”

Id.

The decision in question was

Blakely v.

Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531,

159 L.Ed.2d 403 (2004).

Taylor additionally argues that this court should disregard

Creadell Burns because it conflicts with

Smith and,

under this court’s rule of orderliness,

Smith prevails.

United States v. Walker, 302 F.3d 322, 325 (5th Cir. 2002)

(holding that under the rule of orderliness, “the earlier

precedent controls”). The Government contends that because

Smith did not involve a collateral-review waiver, it does

not conflict with

Creadell Burns and, therefore, does not

control under the rule of orderliness. 4

The Government further contends that

Smith

is inapposite because the defendant therein “was

forced to choose between two unconstitutional

choices”—trial by either a five-person jury or

a six-person jury requiring the consent of only

five to convict—whereas “[t]here is nothing

unconstitutional about waiving post-conviction

relief” as Taylor did. We do not reach this argument.

Id. at 450.

United States v. Taylor, 806 Fed.Appx. 276 (2020)

[2] We conclude that

Creadell Burns governs under the

rule of orderliness because

agreement waiver. See

that reason,

Smith did not include a plea

Smith, 632 F.2d at 1195. For

“McBride could not have intentionally relinquished a claim

based on [

Samuel]

Johnson, which was decided after

his sentencing”). *280

190.

Timothy Burns, 770 F. App'x at

Smith is not dispositive under the rule of

orderliness. See

Tech. Automation Servs. Corp. v. Liberty

Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)

(applying the rule of orderliness where “a previous panel ...

resolved this question,” meaning the precise question at

issue in the later appeal) (emphasis added). We note that in

Wright, our court held that the Government had “waived

the waiver” argument. Further, that case is unpublished and,

therefore, not controlling. Indeed, a different unpublished

opinion from our court is more persuasive:

United States

v. Timothy Burns, 770 F. App'x 187 (5th Cir.), cert. denied,

––– U.S. ––––, 140 S. Ct. 279, 205 L.Ed.2d 185 (2019).

Burns pleaded guilty to armed bank robbery and brandishing

a firearm during a crime of violence, waiving his rights

to appeal and collateral review, and was sentenced as a

career offender under the Guidelines.

Following the issuance of

770 F. App'x at 189.

Samuel Johnson, Burns filed

§ 2255 motion “asserting that his prior convictions no

longer qualified him for the career offender enhancement and

that his brandishing conviction should be vacated.”

Id.

Relevantly, Burns argued that his collateral-review waiver

was unenforceable because he could not waive a right “that

did not exist at the time he agreed to the waiver,” citing

as support the Sixth Circuit’s opinion in

United States v.

McBride, 826 F.3d 293, 295 (6th Cir. 2016) (holding that

End of Document

We distinguished

McBride because the plea agreement

in that case did not include an appeal waiver.

770 F.

App'x at 190; see

McBride, 826 F.3d at 294-95. We

noted that we “continue[s] to enforce waivers despite changes

in law,” and held that Burns’s argument was “foreclosed”

Creadell Burns.

Timothy Burns, 770 F. App'x at

190-91. Accordingly, we concluded that Burns had waived

his collateral challenge to the career offender enhancement

and affirmed the denial of

§ 2255 relief.

Id. at 191.

Although as an unpublished opinion,

Timothy Burns is

not controlling precedent, it is “highly persuasive” because it

rejected an argument materially identical to Taylor’s. United

States v. Pino Gonzalez, 636 F.3d 157, 160 (5th Cir. 2011);

see

Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir.

2006) (citing 5TH CIR. R. 47.5.4).

In sum, we conclude that the district court did not err in

dismissing Taylor’s

AFFIRMED.

§ 2255 claim due to his plea waiver.

All Citations

806 Fed.Appx. 276

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