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United States v. Griffin

United States Court of Appeals, Fifth Circuit

January 8, 2020

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
LEONARD GRIFFIN, Defendant-Appellant

          Appeal from the United States District Court for the Southern District of Mississippi

          Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

          PER CURIAM:

         The question is whether Mississippi aggravated assault, Miss. Code Ann. § 97-3-7(2) (West 1997), is a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e). We conclude that it is.

         I.

         The Armed Career Criminal Act (ACCA) imposes a fifteen-year minimum sentence on a defendant who is convicted of being a felon in possession of a firearm and has three previous convictions for "violent felon[ies]" or "serious drug offense[s]." 18 U.S.C. § 924(e)(1). Absent those prior convictions, the punishment range for the felon-in-possession offense is much lower-between zero and ten years. Id. §§ 922(g), 924(a)(2).

         The Act defines "violent felony" as a crime punishable by more than a year of imprisonment that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the elements clause); (2) is burglary, arson, extortion, or involves the use of explosives (the enumerated offenses clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). 18 U.S.C. § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). Johnson v. United States, 135 S.Ct. 2551 (2015), held that the last of these definitions, the residual clause, is unconstitutionally vague. Id. at 2563. Soon after, the Supreme Court announced that Johnson retroactively applies to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         Leonard Griffin invokes Johnson in this collateral challenge to his 2008 conviction for being a felon in possession of a firearm. The district court sentenced him as an armed career criminal after finding that he had three convictions for violent felonies. Two of his convictions were for Mississippi strong arm robbery. His third was for Mississippi aggravated assault. The court thus imposed the ACCA's fifteen-year minimum sentence.

         Within a year of Johnson, Griffin filed a successive section 2255 petition challenging his sentence. See 28 U.S.C. § 2255(f)(3). After we authorized Griffin to file the petition, the district court denied it on the merits. The district court ruled that Griffin's three predicate offenses still constituted violent felonies under the ACCA's elements clause, which Johnson did not affect. Although Griffin sought permission to appeal the classification of all three predicates as violent felonies, we granted him a certificate of appealability on only one issue: "whether the district court erred by denying [his] § 2255 motion based on its determination that Mississippi aggravated assault constitutes a violent felony post-Johnson."

         II.

         In ruling on the motion for postconviction relief, the district court recognized that it relied on the residual clause at Griffin's 2008 sentencing. Accordingly, there is jurisdiction to consider this successive habeas application. United States v. Clay, 921 F.3d 550, 559 (5th Cir. 2019).

         But reliance on the residual clause was harmless if Griffin's three convictions also satisfied the other, still-valid definitions of "violent felony." The certificate of appealability limits our review to Griffin's aggravated assault conviction. Because the ACCA does not list aggravated assault in its enumerated offense clause, Griffin's petition turns on whether Mississippi aggravated assault is a violent felony under the elements clause.[1]

         When Griffin was convicted of aggravated assault, the Mississippi statute read as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a ...

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