DEADLY CONDUCT CONVICTION The United States District Court for the Northern District of Texas ruled that because deadly conduct under Texas Penal Code §22.05 is not a violent felony under the Armed Career Criminal Act’s (ACCA) enumerated offense clause, it cannot be used as a predicate offense for ACCA enhancement purposes.

On December 5, 2011, Quentin Bivins was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §922(g). Because he had three previous violent felonies, his sentence was enhanced under the ACCA, 18 U.S.C. §924(e). He was sentenced to 188 months for the offense. Bivins soon filed his first motion for post-conviction relief under 28 U.S.C. §2255. He argued that his counsel provided ineffective assistance of counsel by failing to challenge the ACCA’s application to his case. The court rejected this claim, finding that Bivins’ prior Texas convictions, two for burglary of a habitation and one for evading arrest, qualified as violent felonies under the ACCA. Not long after Bivins lost his first section 2255 motion, the U.S. Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson invalidated the ACCA’s “residual clause.”  John in hand, Bivins went to the Fifth Circuit and requested permission to file a successive section 2255 motion.

The Fifth Circuit granted Bivins’ motion, finding that “pursuant to Johnson, at least one of the three convictions relied on by the district court no longer qualifies as a predicate conviction under the ACCA.”

Bivins filed his second section 2255 motion based on Johnson.  The case was stayed while the Fifth Circuit decided United States v. Herrold, 883 F.3d 517 (5th Cir. 2018)(en bane). Herrold ultimately held that post-Johnson, Texas burglary convictions no longer qualify as violent felonies, .and thus cannot be used to enhance sentences under the ACCA.

Between Johnson and Herrold, Bivins now had a great case for section 2255 relief. The government argued that regardless of these cases, Bivins was still a candidate for an ACCA enhancement due to a previous conviction for deadly conduct, which it argued remained a violent felony.

The district court chose to address this question, though it is not clear why. Herrold invalidated burglary convictions as violent felonies for ACCA purposes, and the parties all agreed that because evading arrest could only fall under the residual clause, that predicate was invalid too. As such, it appeared as if Bivins only had one potential predicate conviction–the deadly conduct charge. But the ACCA requires three. Regardless, the court considered the deadly conduct felony.

The government argued that is was an enumerated violent felony because it involved the discharge of a firearm, which necessarily involves “the use of explosives.” This sounds crazy, but what the government was saying was that bullets are fired from a gun by way of exploding gunpowder.  And the use of 2 explosives is a violent felony that is specifically enumerated in the ACCA. The court did not buy this argument. Significantly, a plain reading of §924(e)(2)(B)(ii).indicates that “involves the use of explosives” does not mean the discharge of a firearm.  The ACCA, said the court, “specifically provides for enhanced punishment for firearms offenses, thus, there would be no logical reason for Congress to avoid including the discharge of a firearm among the enumerated offenses [(which it did)] in the definition of violent felony if that is indeed what it intended.”(emphasis in original).

As such, the government’s attempt to conflate setting off a bomb with firing a gun to avoid the now-deceased residual clause failed.

Pursuant to this analysis, the court concluded that Texas deadly conduct is not a violent felony under the ACCA. Without this predicate felony, Bivins no longer qualified as an armed career criminal. His sentence was vacated, and the court ordered resentencing without the ACCA enhancement.

Violent felonies are dropping like flies due to the Supreme Court’s evolving jurisprudence. If you or a loved one believe that your sentence shouldn’t have been enhanced, contact our firm. The attorneys at the Law Offices of Brandon Sample are experienced section 2255 litigators, and may be able to help you.Src: Bivins v. United States, 2019 U.S. Dist. LEXIS 14023 (N.D. Tex. January 9, 2019)


About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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