United States of America v. Matthew West, Also Known As Titus Shackleford

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2023 Decided June 2, 2023
No. 18-3063
UNITED STATES OF AMERICA,
APPELLEE
v.
MATTHEW WEST, ALSO KNOWN AS TITUS SHACKLEFORD,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cr-00093-1)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb and
Nicholas P. Coleman, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, WALKER, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.

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RANDOLPH, Senior Circuit Judge: Federal law forbids those
previously convicted of a felony from shipping, possessing, or
receiving firearms. 18 U.S.C. § 922(g). Violations were
generally punishable by up to 10 years’ imprisonment. Id.
§ 924(a)(2).1 But if the violator has three or more prior
convictions for “violent” felonies, the Armed Career Criminal
Act increases his prison term to a minimum of 15 years and a
maximum of life. Id. § 924(e)(1).
The Armed Career Criminal Act defines “violent” felony
as:
[A]ny crime punishable by imprisonment for a term
exceeding one year . . . that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.
Id. § 924(e)(2)(B) (emphasis added). Clause (i) has become
known as the “elements clause.” The italicized portion of clause
(ii) has become known as the “residual clause.”
Johnson v. United States held that the Act’s residual clause
violated the Due Process Clause of the Fifth Amendment
1 The Bipartisan Safer Communities Act, Pub. L. No. 117-159,
136 Stat. 1313, 1329 (2022), amended the Armed Career Criminal Act
to provide that violators shall be fined, imprisoned for not more than
15 years, or both. 18 U.S.C. § 924(a)(8). We cite the statute in effect
at the time of West’s conviction and sentencing.

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because of its indeterminacy. 576 U.S. 591, 597 (2015). A year
after Johnson, the Supreme Court in Welch v. United States held
that Johnson was retroactively applicable on collateral review.
578 U.S. 120, 130 (2016).
The Court’s Johnson decision, combined with Welch,
generated a large number of prisoner petitions pursuant to 28
U.S.C. § 2255, the federal habeas corpus statute for federal
prisoners.2 Appeals in district court denials of such petitions are
doubtless declining. The federal habeas statute set a 1 year
limitation period for § 2255 petitions based on Supreme Court
decisions recognizing a new constitutional right and making it
retroactive to cases on collateral review. 28 U.S.C.
§ 2255(f), (h). At this writing, we are now about 7 years beyond
the 1 year deadline.
Which brings us to the specifics of Matthew West’s § 2255
petition. In 2005, after a jury convicted West of unlawful
possession of a firearm by a felon (18 U.S.C. § 922(g)), the
district court (Leon, J.), relying on the Armed Career Criminal
Act, sentenced West to 18 years’ imprisonment and 5 years’
supervised release. We affirmed. United States v. West, 458
F.3d 1, 14 (D.C. Cir. 2006).
The Supreme Court’s Johnson decision came down in 2015.
Within a year West brought a § 2255 habeas petition,3 seeking
to have his sentence vacated or corrected. West brings this
appeal from Judge Leon’s decision, in a comprehensive opinion,
2 United States v. Durham, 2023 WL 1926893 (W.D. Ky. Feb.
11, 2023).
3 West had already filed several habeas petitions, none of which
dealt with Johnson, all of which were denied.

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denying his petition.4 See United States v. West, 314 F. Supp. 3d
223, 237–38 (D.D.C. 2018).
The main question facing Judge Leon was whether he had
sentenced West to more than the 10 year maximum relying on
the Act’s residual clause. Judge Leon determined that West had
failed to establish that his enhanced sentence rested on the
invalid residual clause; and second, that even if his sentence
rested on that clause it was a harmless error because his sentence
was warranted under the Act’s elements clause. See id. at 223,
226, 232, 234, 237. Of West’s three predicate convictions, two
were under New Jersey’s law punishing aggravated assault; his
other conviction was under the State’s second-degree robbery
law. Id. at 233–37. West’s assault convictions were for beating
a person with a sawed-off shotgun, swinging “it like a golf club”
into the victim’s head many times; and for beating a fellow
prison inmate. His robbery conviction was for forcibly robbing
a woman of jewelry.5
A federal prisoner “claiming the right to be released upon
the ground that the sentence was imposed in violation of the
4 28 U.S.C. § 2253(c) requires a § 2255 petitioner to obtain a
certificate of appealability to appeal a district court’s final order. A
court of appeals may grant such a certificate if the petitioner “has
made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). We granted West a certificate of appealability.
5 In its Sentencing Memorandum, the government stated: “The
defendant has a lengthy criminal record that includes numerous violent
crimes. The defendant’s criminal activity began when he was 14 years
old, with his arrest for a first-degree robbery and two weapons
charges. He was arrested five more times before turning 18. As an
adult, he was convicted of four separate violent crimes – two charges
of aggravated assault, one robbery by force, and one assault on a
correctional officer.” Appendix 25.

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Constitution or laws of the United States” may bring a habeas
corpus petition in the sentencing court. 28 U.S.C. § 2255(a); see
also id. § 2255(h). Making such a claim in a § 2255 petition, as
West has done, is one thing. Prevailing on such a claim is quite
another. See Welch, 578 U.S. at 127; Miller-El v. Cockrell, 537
U.S. 322, 337 (2003).
The district court used the preponderance of evidence
standard in determining that West failed to show that it was
more likely than not that his sentence relied on the residual
clause. West, 314 F. Supp. 3d at 230. We agree with the district
court’s use of that evidentiary standard. It has been adopted by
the majority of circuits to have addressed the issue.6 The more
likely than not standard is the usual standard applied in § 2255
cases, so it makes sense to apply it here. See Beeman v. United
States, 871 F.3d 1215, 1222 (11th Cir. 2017) (collecting cases);
United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973)
(per curiam). Furthermore, the standard is consistent with the
stringent requirements of collateral review. See, e.g., Miller-El,
537 U.S. at 337; United States v. Clay, 921 F.3d 550, 559 (5th
Cir. 2019), as revised (Apr. 25, 2019).
West argues in favor of an alternative – namely, that it
should be enough for him to show that the sentencing court
“may have” relied upon the residual clause.7 In support of that
6 See Dimott v. United States, 881 F.3d 232 (1st Cir. 2018);
United States v. Bentley, 49 F.4th 275 (3d Cir. 2022); United States v.
Clay, 921 F.3d 550 (5th Cir. 2019), as revised (Apr. 25, 2019); Potter
v. United States, 887 F.3d 785 (6th Cir. 2018); Walker v. United
States, 900 F.3d 1012 (8th Cir. 2018); United States v. Washington,
890 F.3d 891 (10th Cir. 2018); Beeman v. United States, 871 F.3d
1215 (11th Cir. 2017).
7 Two circuits appear to use this “may have” approach in
evaluating post-Johnson habeas cases. United States v. Winston, 850

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approach West invokes the holding in Stromberg v. California,
283 U.S. 359 (1931), that when a general jury verdict may rest
on several possible grounds and one of those grounds is
unconstitutional, the conviction must be set aside. With general
jury verdicts the reviewing court has no objective way to
determine whether the jury relied on the unconstitutional
ground. But in Johnson cases such as West’s the court can
examine the record and the legal background at the time of
sentencing. See United States v. Washington, 890 F.3d 891, 896
(10th Cir. 2018). Furthermore, the contexts are different.
Congress has placed strict limits on habeas petitions. See, e.g.,
Dimott v. United States, 881 F.3d 232, 241 (1st Cir. 2018). The
preponderance of evidence standard is not arbitrary: whether a
defendant satisfies his burden depends on the evidence in the
record and the background legal context and, perhaps, the
sentencing judge’s memory. See Beeman, 871 F.3d at 1224.
This brings us to the question whether West has carried his
burden. Nothing in the record indicates whether West’s
sentence rested on the residual clause, or on the elements clause,
or on both. The government’s sentencing memorandum, the
presentence report, and the court’s statements indicate only that
West’s prior convictions were violent felonies and therefore
subjected him to the sentencing enhancement. An additional
consideration weighs against West. As the district court
discussed (West, 314 F. Supp. 3d at 231–32), the law of our
circuit at the time of West’s sentencing was that the residual
clause dealt with “felonies against property (such as burglary,
arson, extortion, etc.)” while the elements clause dealt with
“felonies against the person.” See United States v. Mathis, 963
F.2d 399, 405 (D.C. Cir. 1992) (emphasis omitted). Mathis
pointed out that the elements clause was introduced to “include
F.3d 677, 681–82 (4th Cir. 2017); United States v. Geozos, 870 F.3d
890, 894–95 (9th Cir. 2017).

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felonies involving physical force against a person such as
murder, rape, assault, robbery, etc.” Id. at 407 (quoting H.R.
Rep. No. 99-849, at 3 (1986)). It follows that in determining
whether an aggravated assault or a forcible robbery amounted to
a “violent” felony, the district court, following circuit precedent,
would have relied on the elements clause, not the residual
clause, in reaching its sentencing decision. See, e.g., id. at 408;
United States v. Williams, 358 F.3d 956, 965 (D.C. Cir. 2004);
United States v. Hill, 131 F.3d 1056, 1062–63 (D.C. Cir. 1997);
see also United States v. Thomas, 2 F.3d 79, 81 (4th Cir. 1993)
(“an aggravated assault under New Jersey law is a violent felony
as defined by federal law” in the elements clause).8
West also argues that his convictions would not have
qualified under the elements clause in 2005,9 so the sentencing
court must have relied on the residual clause. His convictions
would not have qualified, he tells us, because New Jersey law
made reckless conduct an element of his prior offenses and a
crime with the mens rea of recklessness does not qualify as a
violent felony. In mounting this claim West does not distinguish
between his three convictions – two for aggravated assault and
one for second-degree robbery. Despite the lack of precision in
8 West argues that in one of our decisions before his sentencing,
United States v. Thomas, the court used an analysis that was
inconsistent with Mathis. 361 F.3d 653, 658, 660 (D.C. Cir. 2004),
vacated on other grounds, 543 U.S. 1111 (2005). The Thomas case
dealt with the Sentencing Guidelines, which contain a provision like
the residual clause. See id. at 656. The crime analyzed in Thomas was
neither aggravated assault nor forcible robbery, both of which Mathis
placed under the elements clause. The crime in Thomas was instead
escape from custody. Id. at 657.
9 We do not reach the question whether West’s three prior
convictions would satisfy the elements clause under current
interpretations.

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West’s claim, we will confine our response to his convictions
for aggravated assault. We do so because we find it impossible
to believe that someone could accidentally violate New Jersey’s
second-degree robbery law.10
Before West’s sentencing, the Supreme Court in Leocal v.
Ashcroft decided that a crime (drunk driving causing serious
bodily injury) with a mens rea of negligence was not a crime of
violence under 18 U.S.C. § 16. 543 U.S. 1, 4, 13 (2004). West
contends that after his sentencing there were cases suggesting
that a crime with a mens rea of recklessness would not qualify
as a violent felony. E.g., Oyebanji v. Gonzales, 418 F.3d 260,
264–65 (3d Cir. 2005). This line of authority does not help
West. The aggravated assault statutes, N.J. Rev. Stat. §
2C:12-1-b(1), (7), (13), punish attempts to cause or causing
“bodily injury purposely” or with “extreme indifference to the
value of human life recklessly causes such” injury. The New
Jersey statutes thus required, not mere reckless conduct, but
extreme recklessness. The circuit courts considering “extreme”
or “depraved heart” recklessness as in the New Jersey statutes
have concluded that elevated recklessness satisfied the elements
clause.11 We do not have to decide whether we agree with those
10 Under New Jersey law at the time, second-degree robbery
occurred if the individual, in committing a theft, “inflicts bodily injury
or uses force against another.” West, 314 F. Supp. 3d at 235 (citing
New Jersey v. Sein, 124 N.J. 209 (1991)).
11 The Supreme Court in Borden v. United States held that a crime
that can be committed with a mens rea of recklessness does not qualify
as a violent felony under the Armed Career Criminal Act. 141 S. Ct.
1817, 1834 (2021) (plurality opinion); id. at 1835 (Thomas, J.,
concurring). In a footnote, the plurality opinion, however, expressly
reserved whether a crime that can be committed with a mens rea of
extreme recklessness qualifies, Borden, 141 S. Ct. at 1825 n.4
(plurality opinion); id. at 1856 n.21 (Kavanaugh, J., dissenting), a

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decisions. All of them deal with current statutory interpretation,
not constitutional law. The important point is that such
authorities are enough to refute West’s contention that the
district court likely relied on the residual clause because it could
not have relied on the elements clause.
Affirmed.
question that has been answered in the affirmative by those post-
Borden circuits to address it. See, e.g., United States v. Manley, 52
F.4th 143 (4th Cir. 2022); United States v. Harrison, 54 F.4th 884 (6th
Cir. 2022); United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en
banc); Alvarado-Linares v. United States, 44 F.4th 1334 (11th Cir.
2022).

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