from the United States District Court for the Southern
District of Mississippi
OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
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.
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. §§
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).
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
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
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.
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.
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 ...