District Court Rules that Texas “Deadly Conduct” Conviction No Longer Qualifies as ACCA Predicate

The Northern District Court of Texas ruled that deadly conduct under Texas Penal Code §22-05 is not a violent felony. As a result, the Armed Career Criminal Act (ACCA) enumerated offense clause will no longer use deadly conduct as a predicate offense sentence enhancement.


Bivin’s Deadly Conduct Sentence

On December 5, 2011, Quentin Bivins found himself convicted of felony firearm possession under 18 USC §922(g). Bivins, convicted of three violent felonies prior, now faced a fourth. Only this conviction now had a sentence enhancement under ACCA, 18 USC §924(e). When he finally received his sentence, Bivins faced 188 months in prison for the offense. 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. Not long after Bivins lost his first section 2255 motion, the U.S. Supreme Court decided Johnson v United States. Johnson invalidated the ACCA’s “residual clause.” Johnson 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.”

Bivin’s Files for Another Section 2255 Motion

Bivins filed his second section 2255 motion based on Johnson. However, he ultimately had his case stayed while the Fifth Circuit decided United States v Herrold. This ruling stated that Texas burglary convictions are no longer considered violent felonies and thus are ineligible ACCA sentence enhancements.

Between Johnson and Herrold, Bivins now had a great case for section 2255 relief. However, the government argued that because of his previous deadly conduct felonies, Bivins qualified for ACCA enhancements.

The district court chose to address this question, though it is not clear why. 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.

Deadly Conduct Conviction Not Applicable

The government argued that Bevin’s 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. The use of two 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 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 paved the way for Bivins to have his sentence vacated and retried 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 should not 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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