Petition for Writ of Certiorari — Ryan Dennis, Petitioner v. United States

Case: 18-10025

Document: 00515380876

Page: 1

Date Filed: 04/14/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-10025

Summary Calendar

FILED

April 14, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RYAN DENNIS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CV-577

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

In December 2008, a jury convicted Ryan Dennis of possessing a firearm

after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). Although the

statutory maximum for such an offense is generally ten years in prison, 18

U.S.C. § 924(a)(2), because Dennis was found to have had three prior

convictions for violent felonies under the Armed Career Criminal Act (ACCA),

* 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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id. § 924(e), he was subject to a statutory minimum of fifteen years. The

district court sentenced Dennis under the ACCA to 288 months in prison, to be

followed by a three-year supervised release term.

We affirmed on direct

appeal, and the Supreme Court denied certiorari. United States v. Dennis, 365

F. App’x 591, 592–95 (5th Cir.), cert. denied, 561 U.S. 1016 (2010). Dennis filed

an unsuccessful § 2255 motion, and we denied a certificate of appealability

(COA).

In 2016, Dennis moved for authorization to file a second or successive

§ 2255 motion, arguing that he was improperly sentenced under the ACCA in

light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.

2551 (2015). We granted authorization to file. In re Dennis, Case No. 16-10581

(5th Cir. Jun. 28, 2016).

The district court denied relief on the merits,

concluding that, even without relying on the residual clause, Dennis’s criminal

history met the requirements for three violent felonies under the still-valid

portions of the ACCA. Dennis timely appealed.

Although the Government does not address this issue in any detail in its

briefing and the district court did not address it directly, we are required to

address our jurisdiction sua sponte, if necessary. See United States v. Wiese,

896 F.3d 720, 723 (5th Cir. 2018), cert. denied, 139 S. Ct. 1328 (2019); Solsona

v. Warden, F.C.I., 821 F.2d 1129, 1132 n.2 (5th Cir. 1987); see also United

States v. Ricks, 756 F. App’x 488, 489 (5th Cir.) (addressing the jurisdictional

issue for a successive § 2255 motion based on Johnson after granting a COA as

to the district court’s merits determination), cert. denied, 140 S. Ct. 327 (2019).

“A second or successive habeas application must meet strict procedural

requirements before a district court can properly reach the merits of the

application.” Wiese, 896 F.3d at 723; see 28 U.S.C. §§ 2244(b), 2255(h). A

prisoner pursuing a successive § 2255 motion must pass through two

jurisdictional “gates” to have his motion heard on the merits. Wiese, 896 F.3d

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at 723.

Dennis has passed through the first gate by obtaining our

authorization to file a successive motion. See id. While Dennis was required

to make only a prima facie showing to obtain authorization for the successive

motion from this court, to pass through the second gate, he “must actually

prove at the district court level that the relief he seeks relies . . . on a new,

retroactive rule of constitutional law.” Wiese, 896 F.3d at 723; see 28 U.S.C.

§ 2255(h)(2). 1

A prisoner making a Johnson claim must prove 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). If

he fails to make that showing, we have jurisdiction only for the purpose of

correcting the district court’s error in considering the cause of action. Wiese,

896 F.3d at 723, 726 (noting also that in such a situation, this court would

vacate the district court’s judgment and dismiss the successive § 2255 motion

for lack of jurisdiction).

In considering the jurisdictional question at issue 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 or one of the remaining clauses. Wiese,

896 F.3d at 724; see also Clay, 921 F.3d at 556. We may also consider the

sentencing record, the legal landscape at the time of sentencing, the presentence report (PSR), and other relevant materials before the sentencing

court.

Wiese, 896 F.3d at 725.

Changes to the law that occurred after

sentencing should not be considered, unless the change is a new rule of

1 Dennis maintains that despite the language in Wiese, the second gateway is not in

fact “jurisdictional” and that the Government has waived or forfeited the issue by not raising

it before the district court. We are bound by our precedent, not the position of the U.S.

Department of Justice cited by Dennis.

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constitutional law announced by the Supreme Court and made retroactive to

cases on collateral review. Id. at 725–26.

According to the charging instruments, in February 1996 Dennis caused

bodily injury to a victim by striking him with a firearm and used or exhibited

a deadly weapon while committing the assault. On July 20, 2004, Dennis

intentionally or knowingly threatened bodily injury to two separate victims

and used or exhibited a deadly weapon during the assaults. In a separate event

on July 23, 2004, Dennis threatened imminent bodily injury to a victim and

used a deadly weapon during the assault. Dennis argues that his prior Texas

aggravated assault convictions are not violent felonies because assault under

Texas Penal Code § 22.01 can be committed in ways that do not necessarily

involve the use of physical force and can be committed with recklessness as

opposed to specific intent to use force. He thus contends that, at the time of

his sentencing, the law would have established that assault did not include as

an element the requisite use of force.

We conclude that Dennis has failed to show that it is “more likely than

not” that the sentencing court relied upon the residual clause. The record does

not reflect that the sentencing court considered the residual clause. While we

have held that the district court is not permitted to rely solely on the PSR’s

characterization of a prior conviction for sentence-enhancement purposes, see

United States v. Garza-Lopez, 410 F.3d 268, 273–75 (5th Cir. 2005), in Wiese

we noted that this court may look to the PSR in determining whether the

sentencing court relied on the residual clause. 896 F.3d at 725. The PSR

reflects that Dennis was convicted of aggravated assault with a deadly weapon,

which is codified at § 22.02(a)(2) of the Texas Penal Code. 2 Looking at “the

Dennis contends that the district court was not permitted to rely upon the PSR, but

the issue here is whether Dennis has shown that the district court relied upon the residual

clause. The PSR supports that the district court did not.

2

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landscape,” it is true that at the time of Dennis’s sentencing in 2009, we had

held that a violation of § 22.01, standing alone, did not fall under the elements

clause in U.S.S.G. § 2L1.2 because it may be committed by acts that do not

involve violence or a direct use of force.

See United States v. Villegas-

Hernandez, 468 F.3d 874, 878–85 (5th Cir. 2006). 3 But we had reached a

different conclusion (albeit addressing an enumerated-offense issue) where the

aggravating factor was a deadly weapon. See United States v. Guillen-Alvarez,

489 F.3d 197, 199–201 (5th Cir. 2007) (holding that aggravated assault with a

deadly weapon (a knife) is categorically a crime of violence for purposes of

§ 2L1.2(b)(1)(A)(ii)). Opinions issued after Dennis’s sentencing also suggest

that “the landscape” was not reliant on the residual clause. See, e.g., United

States v. Guzman, 797 F.3d 346, 347–48 (5th Cir. 2015) (per curiam).

As we held in Clay, “if ‘it is unclear from the record whether the

sentencing court had relied on the residual clause,’ the prisoner—who bears

the burden of proof—‘loses.’” 921 F.3d at 558 (quoting Beeman v. United States,

871 F.3d 1215, 1224–25 (11th Cir. 2017)); see also United States v. Medina, No.

17-11176, 2020 WL 414815, at *3 (5th Cir. Jan. 24, 2020) (per curiam). We

conclude that Dennis failed to meet his burden. Therefore, we conclude that

the district court lacked jurisdiction to address the merits of Dennis’s claims. 4

We thus MODIFY the district court’s determination not to grant relief to

The relevant holding was overruled in part in United States v. Reyes-Contreras, 910

F.3d 169, 181–82 (5th Cir. 2018) (en banc), but, of course, we recognize that the analysis in

the current case focuses on the sentencing hearing which predated Reyes-Contreras, such

that Villegas-Hernandez was good law at the time.

3

If we did have jurisdiction, we would affirm the district court on the merits. See

United States v. Combs, 772 F. App’x 108, 109–10 (5th Cir. 2019) (citing United States v.

Albin Torres, 923 F.3d 420, 423–25 (5th Cir. 2019)), petition for cert. filed (U.S. Sept. 9, 2019)

(No. 19-5908); see also United States v. Gomez Gomez, 917 F.3d 332, 333–34 (5th Cir. 2019)

(holding that Texas aggravated assault qualifies as a crime of violence under 18 U.S.C.

§ 16(a) because it includes as an element the use of force), petition for cert. filed (U.S. July

19, 2019) (No. 19-5325).

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change it from a denial of Dennis’s successive § 2255 to a dismissal on the

ground that it lacked jurisdiction and, as modified, AFFIRM.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

United States Court of Appeals

Fifth Circuit

No. 18-10025

Summary Calendar

_______________________

FILED

April 14, 2020

Lyle W. Cayce

Clerk

D.C. Docket No. 4:16-CV-577

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RYAN DENNIS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

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.

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Case: 18-10025

Document: 00515451829

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Date Filed: 06/15/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 18-10025

___________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RYAN DENNIS,

Defendant - Appellant

_______________________

Appeal from the United States District Court

for the Northern District of Texas

_______________________

ON PETITION FOR REHEARING EN BANC

(Opinion April 14, 2020 , 5 Cir., __________ , __________ F.3d __________ )

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:

( x ) Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is DENIED. No member of

the panel nor judge in regular active service of the court having

requested that the court be polled on Rehearing En Banc (FED. R. APP.

P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

( )

Treating the Petition for Rehearing En Banc as a Petition for Panel

Rehearing, the Petition for Panel Rehearing is DENIED. The court

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having been polled at the request of one of the members of the court and

a majority of the judges who are in regular active service and not

disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35),

the Petition for Rehearing En Banc is DENIED.

Dated: 6-13-2020

ENTERED FOR THE COURT:

____/s/ Catharina Haynes____________

CATHARINA HAYNES

UNITED STATES CIRCUIT JUDGE

Dennis v. United States

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Case: 16-10581

Document: 00513568209

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Date Filed: 06/28/2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10581

In re: RYAN DENNIS,

Movant

A True Copy

Certified order issued Jun 28, 2016

Clerk, U.S. Court of Appeals, Fifth Circuit

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 CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Ryan Dennis, federal prisoner # 38032-177, moves for authorization to

file a successive 28 U.S.C. § 2255 motion. He may file a successive motion if

he makes a prima facie showing that his motion contains either “newly

discovered evidence that . . . would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found the

movant guilty,” or “a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable.”

§ 2255(h); see Reyes-Requena v. United States, 243 F.3d 893, 897-98 (5th Cir.

2001).

Dennis relies on the new rule prong, invoking Johnson v. United States,

135 S. Ct. 2551, 2555-63 (2015), which struck down the residual clause of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as

unconstitutionally vague. He contends that his enhanced sentence under the

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ACCA appears to be based upon Johnson error because all of his prior Texas

convictions for aggravated assault under TEX. PENAL CODE § 22.02 could only

be violent felonies under the residual clause.

Johnson announced a new rule of constitutional law that the Supreme

Court has made retroactive to cases on collateral review. Welch v. United

States, 136 S. Ct. 1257, 1261-65 (2016); Johnson, 135 S. Ct. at 2560. The rule

announced by Johnson was previously unavailable. See, e.g., Johnson, 135 S.

Ct. at 2563, overruling James v. United States, 550 U.S. 192, 210 n.6 (2007).

Our assessment of Dennis’s motion is limited by the records available to

us, and we express no view of the ultimate merit of his claim. We have

sufficient information, however, to conclude that Dennis has made the

requisite prima facie showing for authorization to proceed further under

§ 2255(h)(2). See Reyes-Requena, 243 F.3d at 899.

IT IS ORDERED that the motion for authorization is GRANTED. Our

grant of authorization is tentative in that the district court must dismiss the

§ 2255 motion without reaching the merits if it determines that Dennis has

failed to make the showing required to file such a motion. See § 2244(b)(4);

Reyes-Requena, 243 F.3d at 899. The Clerk is DIRECTED to transfer the

motion for authorization and related pleadings to the district court for filing as

a § 2255 motion. See Dornbusch v. Comm’r, 860 F.2d 611, 612-15 (5th Cir.

1988).

The filing date shall be, at the latest, the date the motion for

authorization was received in this court, unless the district court determines

that an earlier filing date should apply. See Spotville v. Cain, 149 F.3d 374,

376 (5th Cir. 1998) (prisoner mailbox rule). The federal public defender’s

motion to appoint counsel is DENIED AS MOOT.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

RYAN DENNIS

VS.

UNITED STATES OF AMERICA

§

§

§

§

§

ACTION NO. 4:16-CV-577-Y

(Crim. No. 4:08-CR-109-Y

ORDER DENYING MOTION TO VACATE SENTENCE

Pending before the Court is defendant Ryan Dennis's Motion to

Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc.

1).

After review of the motion, the related briefs, and the

applicable law, the Court concludes that the motion should be denied.

In December 2008, a jury convicted Dennis of being a felon in

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

On

March 17, 2009, he was sentenced to 288 months in prison.

His

sentence was enhanced under the Armed Career Criminal Act ("ACCA"),

18 U.S.C. §924(e), due to his three prior convictions under Texas

law for aggravated assault with a deadly weapon.

Dennis appealed

his conviction, but the United States Court of Appeals for the Fifth

Circuit affirmed. He thereafter filed his first § 2255 motion, which

was denied, and that denial was affirmed by the Fifth Circuit.

After the United States Supreme Court's decisions in Johnson

v. United States, 135 S. Ct. 2251 (2015), and Welch v. United States,

136 S. Ct. 1257 (2016), Dennis timely filed the pending second § 2255

motion.

The motion was transferred to the Fifth Circuit, which

granted Dennis authorization to pursue the motion. Dennis contends

that his sentence enhancements under the ACCA are no longer valid

ORDER DENYING MOTION TO VACATE SENTENCE - Page 1

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in light of the Supreme Court's decisions in Johnson and Mathis v.

United States, 136 S. Ct. 2243 (2016) (holding that a prior conviction

under state law does not qualify as the generic form of a predicate

violent felony offense enumerated in the ACCA if an element of the

crime of conviction is broader than an element of the generic offense

because the crime of conviction enumerates various alternative factual

means of satisfying a single element).

After review, the Court concludes that Dennis's argument is

foreclosed by Fifth Circuit precedent. In United States v. Shepherd,

848 F.3d 425 (5th Cir. 2017), the Fifth Circuit concluded that the

district court did not err in holding that the defendant's conviction

for aggravated assault under Texas law was a "crime of violence" under

U.S.S.G. §4B1.2.

That sentencing guideline defines "crime of

violence" as an offense that "has as an element the use, attempted

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

another."

This definition is identical to the first prong of the

definition of "violent felony" under the ACCA.

See 18 U.S.C. §

924(e)(2)(B)(I). Citing United States v. Guzman, 797 Fl3d 346, 348

(5th Cir. 2015), the Fifth Circuit noted that it had already

found no plain error in holding that a defendant's Texas

conviction for aggravated assault has as an element the

threatened use of physical force against the person of

another. . . . [and that] the Supreme Court's recent

decision in Mathis . . . does not cast doubt on our

evaluation of the aggravated assault statute under the

guidelines. Because we have already held in GuillenAlvarez, 489 F.3d [197,] 200-01 [(5th Cir. 2007)] that Tex.

Penal Code 22.02(a)(2) qualifies as a conviction for the

enumerated offense of aggravated assault and is a crime

of violence, it is 'irrelevant whether the challenged

statutory alternatives are considered means or elements."

United States v. Villasenor-Ortiz, No. 16-10366, [675] Fed.

ORDER DENYING MOTION TO VACATE SENTENCE - Page 2

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Appx. [424], [428], 2017 WL 113917, at *3 (5th Cir. Jan.

11, 2017).

Shepherd, 848 F.3d at 427-28; cf. United States v. Lerma, No. 1641467, 2017 WL 6379724, *7 (5th Cir. Dec. 14, 2017) (concluding that

under Texas's aggravated-robbery statute, "threatening someone with

imminent bodily injury or death, or placing someone in fear of such,

while using or exhibiting a deadly weapon in the course of committing

theft with intent to obtain or maintain control of the property, has

as an element the threatened use of physical force against the person

of another" under the "use of force" prong of the definition of

"violent felony" under the ACCA).

As a result, because Dennis's aggravated-assault convictions

under Texas law remain predicate offenses under the ACCA, 18 U.S.C.

§ 924(e)(B)(2)(i), even after the decisions in Johnson and Mathis,

the Court concludes that Dennis's successive § 2255 motion should

be and hereby is DENIED. The Court further concludes that reasonable

jurists would not find this decision debatable or wrong, and therefore

declines to issue a certificate of appealability.

See 28 U.S.C. §

2253(c)(1)(B); FED. R. APP. P. 22(b); McGowen v. Thaler, 675 F.3d 482,

498 (5th Cir. 2012).

SIGNED December 19, 2017.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

ORDER DENYING MOTION TO VACATE SENTENCE - Page 3

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Case: 18-10025

Document: 00514707440

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Date Filed: 11/01/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10025

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

RYAN DENNIS,

Defendant−Appellant.

Appeal from the United States District Court

for the Northern District of Texas

O R D E R:

Ryan Dennis, federal prisoner #38032-177, was convicted of possessing

a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). The

district court sentenced him to 288 months in prison under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his Texas convictions of

aggravated assault with a deadly weapon. This court granted Dennis authorization to file a successive 28 U.S.C. § 2255 motion raising a claim that his

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Texas convictions no longer qualify as predicate offenses under the ACCA in

light of Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the

residual clause of § 924(e)(2)(B)(ii) is unconstitutionally vague. The district

court denied relief.

Dennis moves for a certificate of appealability (“COA”) to appeal the

denial of his § 2255 motion. To obtain a COA, Dennis must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has

rejected the constitutional claims on the merits, “[t]he [movant] must demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. The

decision whether to grant a COA is made “without full consideration of the

factual or legal bases adduced in support of the claims” and without deciding

the merits of the appeal. Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal

quotation marks and citation omitted).

Because Dennis has made the required showing, a COA is GRANTED on

whether, after Johnson, Dennis no longer qualifies for sentencing under the

ACCA based on his convictions of Texas aggravated assault and whether relief

in a successive § 2255 proceeding is therefore warranted. See Slack, 529 U.S.

at 484. The clerk will issue a briefing notice.

______/s/ Jerry E. Smith__________

JERRY E. SMITH

United States Circuit Judge

Dennis v. United States

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