United States v. Joiner

United States Court of Appeals
for the Fifth Circuit

No. 18-50136
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Roshawn Deon Joiner, also known as Shon Joiner,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:16-CV-1069

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Roshawn Deon Joiner was convicted of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Joiner was subject to
the enhanced penalty provisions of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e)(2)(B), based on his prior Texas convictions for robbery,

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 6, 2020

Lyle W. Cayce
Clerk
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No. 18-50136
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aggravated robbery, and attempted murder. He was sentenced below the
ACCA’s 15-year mandatory minimum term of imprisonment to 151 months
of imprisonment and five years of supervised release.
Relevant here, Joiner filed a successive motion to vacate sentence
under 28 U.S.C. § 2255 based on Johnson v. United States, 135 S. Ct. 2551,
2555-56 (2015), and Welch v. United States, 136 S. Ct. 1257, 1268 (2016). The
district court denied the motion, and we granted Joiner a certificate of
appealability on two issues: whether the sentencing court relied upon the
now-invalid residual clause of § 924(e)(2)(B) in determining that Joiner’s
prior convictions were violent felonies under the ACCA, and whether
Joiner’s two Texas simple robbery convictions supported the application of
the ACCA. During the pendency of the appeal, however, we issued United
States v. Burris, 920 F.3d 942, 945 (5th Cir. 2019), petition for cert. filed (U.S.
Oct. 3, 2019) (No. 19-6186), holding that Texas simple robbery, whether
committed by force or by threat, has as an element the use, attempted use, or
threatened use of physical force against the person of another and therefore
qualifies as a felony under the ACCA after Johnson. Based on Burris, the
Federal Public Defender (FPD) appointed to represent Joiner filed a motion
under Anders v. California, 386 U.S. 738 (1967), which was granted. Joiner,
through the FPD, later filed an unopposed petition for rehearing seeking to
reinstate his appeal so that he could preserve his arguments pending the
potential grant of certiorari in Burris. We granted the petition, reappointed
the FPD, and directed the parties to address whether the district court had
jurisdiction over Joiner’s § 2255 motion.
Here, Joiner argues—and the Government agrees—that the district
court had jurisdiction over his § 2255 motion. He also argues that Texas
simple robbery does not qualify as an ACCA predicate under the elements,
or use-of-force, clause. While he argues that Burris was wrongly decided, he
concedes that his argument is foreclosed by Burris, and he raises the issue to
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preserve it for further possible review in light of the Supreme Court’s recent
grant of certiorari in Borden v. United States, 140 S. Ct. 1262 (2020).
The Government has submitted an unopposed motion for summary
affirmance in light of Burris or, alternatively, an extension of time to file a
brief. The Government also moves for leave to file its motion for summary
affirmance out of time. The motion for leave is GRANTED. See 5th Cir.
R. 31.4. Summary affirmance is appropriate if “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). Although the merits question would be
subject to summary affirmance,
1
the jurisdictional question is not;
accordingly, summary affirmance is not appropriate. Nonetheless, further
briefing is not needed.
Having reviewed the state of the law at the time of Joiner’s sentencing
in 2012, we agree with the parties that it is more likely than not that the
sentencing court relied on the residual clause in determining that Joiner’s
simple robbery convictions qualified as violent felonies under the ACCA
based on the existing legal landscape of that time. See United States v. Clay,
921 F.3d 550, 559 (5th Cir. 2019), cert. denied, 140 S. Ct. 866 (2020); see also
United States v. Wiese, 896 F.3d 720, 726 (5th Cir. 2018). Accordingly, the
district court had jurisdiction, as do we. Turning to the merits, as Joiner
concedes, his argument that his Texas robbery convictions are not violent
felonies is foreclosed by Burris.

1
The pending certiorari petition in Burris and grant of certiorari in Borden, a Sixth
Circuit case, do not alter this analysis, as this court is bound by its own precedent unless
and until that precedent is altered by a decision of the Supreme Court. See Wicker v.
McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986).

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Accordingly, the judgment of the district court is AFFIRMED; the
Government’s unopposed motion for summary affirmance is DENIED, and
its alternative motion for an extension of time to file its brief is DENIED as
unnecessary.
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