In 2019, the federal district court for the Northern District of Texas held that “deadly conduct” under Texas Penal Code § 22.05 is not a “violent felony” under the Armed Career Criminal Act (ACCA). That meant it could not be used as one of the three prior convictions the ACCA requires for its 15-year minimum sentence.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
How did Bivins get an ACCA sentence?
On December 5, 2011, Quentin Bivins was convicted of possessing a firearm as a felon under 18 U.S.C. § 922(g). Because of his prior convictions, his sentence was enhanced under the ACCA, 18 U.S.C. § 924(e). He was sentenced to 188 months in prison. Bivins soon filed his first motion for post-conviction relief under 28 USC §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. Bivins’ prior Texas convictions, two for burglary of a habitation and one for evading arrest, qualified as violent felonies. After Bivins lost his first § 2255 motion, the Supreme Court decided Johnson v. United States, 576 U.S. 591 (2015), which struck down the ACCA’s “residual clause.” Relying on Johnson, Bivins asked the Fifth Circuit for permission to file a successive § 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.”
What happened in the second § 2255 motion?
Bivins filed his second section 2255 motion based on Johnson. His case was put on hold while the Fifth Circuit decided United States v. Herrold, which held that Texas burglary convictions were not violent felonies under the ACCA. (The law on Texas burglary later changed again in further proceedings in Herrold; check current law before relying on it.)
With Johnson and Herrold, Bivins had a strong argument. However, the government argued that because of his previous deadly conduct felonies, Bivins qualified for ACCA enhancements.
The district court addressed this question anyway. Herrold invalidated burglary convictions as violent felonies for ACCA purposes. 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 predicates to qualify. Regardless, the court considered the deadly conduct felony.
Why wasn’t deadly conduct a violent felony?
The government argued that Bivins qualified because the use of a firearm involved “the use of explosives”. In short, the government’s argument stated that because firearms require exploding gunpowder, they are explosives. Crimes that involve “use of explosives” are specifically listed as violent felonies in the ACCA. The court rejected 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 under ACCA guidelines 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. This decision cleared the way for Bivins to be resentenced without the ACCA enhancement.
Source: Bivins v. United States, 2019 U.S. Dist. LEXIS 14023 (N.D. Tex. Jan. 9, 2019).
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