5th Circuit Says Defendant Need Not Prove Sentencing Under Residual Clause – Update for October 16, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Lawrence Taylor was convicted of being a felon in possession of a gun, and received a 15-year Armed Career Criminal Act sentence because he had three prior state convictions that the judge held to be crimes of violence.

After the Supreme Court’s Johnson v. United States decision, Lawrence filed a post-conviction motion under 28 USC 2255 claiming that one of his prior offenses, a Texas conviction for injury to a child, no longer qualified as one of the three offenses needed to impose an ACCA sentence.

Up until Johnson, the ACCA definition of a crime of violence had three subsections. First, four specific offenses – burglary, arson, extortion and use of explosives – were categorically included. This subset is known as the “enumerated crimes” clause. Second, all crimes that involved use or threat of physical force against another person were included. This subset is known as the “elements” clause. Finally, a “residual clause” held that a any crime posing a substantial risk of physical harm to another was considered a crime of violence as well. Johnson held that the “residual clause” was unconstitutionally vague, because no one could reasonably tell whether an offense would qualify under it or not.

McBryde171016When Lawrence was sentenced back in 2006, the district court did not specify whether the injury-to-a-child predicate offense qualified under the residual clause or the elements clause. At the time, no courts were parsing ACCA convictions that finely. That did not prevent the District Judge – John H. McBryde, who for our money is as poor a federal district judge as can be found in America – from peremptorily deciding 10 years after the fact that the ACCA’s residual clause “did not play any role” in Lawrence’s sentencing. Judge McBryde additionally complained that Lawrence should have asked at sentencing which clause – “elements” or “residual” – the court relied on to make the injury-to-a-child prior into a predicate ACCA offense.

Last week, the 5th Circuit reversed Judge McBryde. It held Lawrence was not to blame for not objecting that the district court did not specify “elements” or “residual,” because at the time, a defendant had “no legal right to such a determination.”

win171916It turned out Lawrence had two ways to win. First, the Circuit said Texas’ injury-to-a-child offense is clearly broader than the ACCA’s elements clause, which is to say that commission of that crime does not necessarily require use or threat of physical force. Because the offense is too broad to rely on the “elements” clause, the district court must have relied the residual clause, no matter what Judge McBryde may say now, and that clause has been declared unconstitutional. So under either element, the injury-to-a-child offense does not qualify him for an ACCA enhancement.

But was it Lawrence’s fault for not objecting to the paucity of the record back in 2006? The appeals court said no. “Theoretically,” the 5th said, “the district court mistakenly could have been thinking of the elements clause when sentencing Taylor. But this court will not hold a defendant responsible for what may or may not have crossed a judge’s mind during sentencing.”

release160523Without the ACCA conviction, Lawrence’s felon-in-possession offense carries a statutory maximum sentence of 10 years. He has already served nine months more than that. Although opposing Lawrence’s position that a defendant making a Johnson claim need not prove which element a sentencing court relied on when it imposed an ACCA sentence, the government nevertheless conceded that “if this Court determines that Taylor’s current motion presents a constitutional claim… we would agree to relief.” Thus, the 5th Circuit vacated Lawrence’s ACCA enhancement and ordered his immediate release.

United States v. Taylor, Case No. 16-11384 (5th Cir., Oct. 12, 2017)

– Thomas L. Root


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