### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 1 7

- 50445

UNITED STATES OF AMERICA,
Plaintiff

- Appellee

v. EDDIE RAY WIESE, JR., also known as Eddie Ray Weise, Jr.,
Defendant

- Appellant

Appeal from the United States District Court for the Western District of Texas

Before DAVIS , HAYNES , and DUNCAN , Circuit Judges

. HAYNES, Circuit Judge : We granted Eddie Ray Wiese, Jr. a certificate of appealability on his successive habeas corpus motion . He argues that his sentence sho uld not have been enhanced under the Armed Career Criminal Act (“ACCA”). Because Wiese had not established a jurisdictional predicate for his successive habeas motion at the district court level , w e VACATE the district court’s judgment and DISMISS Wiese’s motion for lack of jurisdiction

. I. Background In 2003, Wiese was charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) with being a felon in possession of a firearm following a 1988 Texas burglary of a habitation conviction. Wiese pleaded guilty pursuant to a written plea United States Court of Appeals Fifth Circuit 

### FILED July 23, 2018 Lyle W. Cayce Clerk Case: 17-50445 Document: 00514567301 Page: 1 Date Filed: 07/23/2018No. 17

- 50445

2 agreement. 1 At his rearraignme nt, Wiese pleaded true to the fact that he had four prior violent felony or serious drug offense convictions, subjecting him to a statutory mandatory minimum sentence of fifteen years in prison and up to five years of supervised release. His guidelines ra nge was 188 to 235 months in prison. T he district court sentenced Wiese to 235 months in prison and a five

- ye ar term of supervised release. Wiese filed his initial habeas applica tion in 2004, arguing that his sentence was unconstitutional under Blakely v. Washington , 542 U.S. 29 6 (2004) . The district court denied relief . He filed the current, second motion in June 2016, following the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2551 (2015) . In Johnson , the Court determined that ACCA’ s residual clause defining a “violent felony” was unconstitutional ly vague. 135 S. Ct. at 2555

– 57

. In Welch v. United States , 136 S. Ct. 1257, 1268 (2016) , t he Court held that Johnson retroactively applied to cases on collateral review. Wiese sought and received authorization from this court to file his second 28 U.S.C. § 2255 motion

. See § 2255(h). In the authorization, we cautioned that it was

“ tentative in that the district court must dismiss the § 2255 motion without reaching the merits if it determines that Wiese has failed to make the showing required to file such a motion.” See 28 U.S.C. § 2244(b)(4). The district court d enied Wiese’s motion . It first determined that it had jurisdiction to reach the merits. T he argument forming the basis for Wiese’s motion

— that the Texas burglary statute was not divisible

— was based on statutory interpretation following Mathis v. United States , 136 S. Ct. 2243 (2016) , a case which we had held did not apply retroactively. See In re Lott ,

1 In his plea agreement, Wiese voluntarily and knowingly waived his right to contest his sentence in a post

- conviction proceedin g, including under 28 U.S.C. § 2255. However, because the Government must invoke an appeal waiver to enforce it and has not done so here, Wiese’s action is proper. See United States v. Story, 439 F.3d 226, 231 (5th Cir. 2006)

. Case: 17-50445 Document: 00514567301 Page: 2 Date Filed: 07/23/2018No. 17

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3 838 F.3d 522, 523 ( 5th Cir. 2016) (per curiam) . Nonetheless, the district court held that because Johnson applied retroactively, it was inconsequential that Mathis did not . It reasoned that Wiese could have been convicted under a non

generic form of Texas burglary, Texas P enal Code § 30.02(a)(3), which only qualified for ACCA purposes under the residual clause. See United States v. Constante , 544 F.3d 584, 587 (5th Cir. 2008 ) (per curiam). After finding jurisdiction , the district court denied relief based upon our decision in United States v. Uribe to hold that any argument that the Texas burglary statute was in divisible was foreclosed, because we held in Uribe that the Texas burglary statute was divisible. 838 F.3d 667 (5th Cir. 2016), cert. denied , 137 S. Ct. 13 59 (2017), overruled by United States v. Herrold , 883 F.3d 517 , 529 (5th Cir. 2018), pets. for cert. filed (U.S. April 18, 2018) (No. 17

- 1445), and (U.S. May 21, 2018) (No. 17

- 9127)

. The district court looked to the Shepard 2 documents provided by the Gove rnment to determine under which subsection of the Texas burglary statute Wiese had been convicted. The documents indicated that all of the ten burglaries submitted to the court had been committed with the intent required for generic burglary. Thus, the d istrict court denied Wiese’s § 2255 motion and further denied him a certificate of appealability, because “Wiese ha[d] failed to make a substantial showing of the denial of a constitutional right.” Wiese appealed the district court’s decision and requested a certificate of appealability from this court. While his request was pending, we decided Herrold and held that the Texas burglary statute is indivisible, overruling Uribe

. Herrold , 883 F.3d at 5 29, 541. We subsequently granted Wiese’s certificate of appealability “ as to the issue [of] whether he should receive relief on his claim that he no longer qu alifies for sentencing under [] ACCA. ”

2 Shepard v. United States , 544 U.S. 13 (2005). Case: 17-50445 Document: 00514567301 Page: 3 Date Filed: 07/23/2018No. 17

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4 II. Discussion We must initially determine whether the distric t court properly reached the merits of Wiese’s motion

. 3 The Government argues that the district court improperly ruled on the merits of Wiese’s § 2255 motion, because it lacked jurisdiction to do so. If the district court did not have jurisdiction to rea ch the merits, naturally, we cannot reach the merits on appeal. See United States v. Key , 205 F.3d 773, 774 (5th Cir. 2000) (per curiam) (“If the distr ict court lacked jurisdiction, ‘ [o]ur jurisdiction extends not to the merits but merely for the
purpose of correcting the error of the lower court in entertaining the suit. ’ ” (alteration in original) (quoting N .Y. Life Ins. Co. v. Deshotel , 142 F.3d 873, 882 (5th Cir. 1998) ) )

. A second or successive habeas application must meet strict procedural requir ements before a district court can properly reach the merits of the application

. See §§ 2244(b), 2255(h); Reyes

- Requena v. United States , 243 F.3d 893, 896

– 900 (5th Cir. 2001) . There are two requirements, or “gat es,” which a prisoner making a second or success ive habeas mo tion must pass to have it heard on the merits. Reyes

- Requena , 243 F.3d at 899. First, we must grant the prisoner permission to file a second or successive mo tion , which requires the prisoner to make a “prima facie showing” that the mo tion relies on a new claim resulting from either (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” or (2) newly discovered, clear and convincing evidence that but for th e error no reasonable fact finder would have found the defendant guilty. See § § 2244(b)(2), (3) (A), (3)(C), 2255(h). We granted such permission

3 We have appellate jurisdiction over the case under 28 U.S.C. § 2253 , a s a final order in a § 2255 proceeding on which Wiese was granted a certificate of appealability

. We review a district court’s ultimate decision whether to grant a second or successive habeas mo ti on de novo as a question of law and factual findings for clear error. See Hardemon v. Quarterman , 516 F.3d 272, 274 (5th Cir. 2008). Case: 17-50445 Document: 00514567301 Page: 4 Date Filed: 07/23/2018No. 17

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5 here, and t he Government does not contest that Wiese made a prima facie showing as to a new, retroactive rule of constitutional law based on Johnson

. 4 Second, the prisoner must actually prove at the district court level that the relief he seeks relies either on a new, retroactive rule of constitutional law or on new evidence. See § 2244(b)(2), (4). If the mo tion does not, the district court must dismiss without reaching the merits

. See i d. We noted as much when we granted Wiese permission to file his second habeas mo tion , stating that the grant was “ tentative in that the district court must dismiss the § 2255

m otion without reaching the merits if it determines that Wiese has failed to make the showing required to file such a motion, ” citing § 2244(b)(4) and Reyes

Requena , 243 F. 3d at 899

. The Government argues that Wiese did not meet this requirement because his claim does not rely on a new, retroactive rule of constitutional law. The dispositive question for jurisdictional purposes here is whether the sentencing court relied on the resid ual clause in making its sentencin g determination

— if it did, then Johnson creates a jurisdictional predicate for the district court, and for our court on appeal, to reach the merits of Wiese’s motion . We join the majority of our sister circuits in conclud ing that we must look to the law at the time of sentencing to determine whether a sentence was imposed under the enumerated offenses clause or the residual clause. See United States v. Washington , 890 F.3d 891, 897

– 98 (10th Cir. 2018) ; Potter v. United St ates , 887 F.3d 785, 788 (6th Cir. 2018) ; Dimott v. United States , 881 F.3d 232, 243 (1st Cir. 2018) , cert. denied sub nom. Casey v. United States , 2018 WL 1243146 (U.S. June 25, 2018) (No. 17

- 1251) ; Beeman v. United States , 871 F.3d 1215, 1221

– 22 (11th Cir. 2017)

.

4 Wiese did not argue that his motion arises from new evidence, and thus, we did not grant permission to file a second or successive habeas motion on that basis and do not look to evidentiary considerations here. Case: 17-50445 Document: 00514567301 Page: 5 Date Filed: 07/23/2018No. 17

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6 That said, the circuits are not in accord on how we decide whether the original sentencing court relied on the residual clause, and w e previously have not established a standard to determine whether the sentencing court relied on the residual c lause for Johnson purposes
. S ee United States v. Taylor , 873 F.3d 476, 481 (5th Cir. 2017) ; compare Washington, 890 F.3d at 896 (applying a “more likely than not” standard and collecting cases that have determined the burden of proof) , Potter , 887 F.3d at 788, Dimott , 881 F.3d at 240, and Beeman , 871 F.3d at 1221

– 22 , 5 with United States v. Geozos , 870 F.3d 890, 896 (9th Cir. 2017) (“ We therefore hold that, when it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have , the defendant’s § 2255 claim ‘relies on’ the constitutional rule announced in [ Johnson ]

. ”), and United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) (articulating that the same “may h ave” standard applies “r egardless of any non

- essential conclusions a court may or may not have articulated on the record in deter mining the defendant’s sentence”). We note that the “more likely than not” standard appears to be the more appropriate standar d since it comports with the general civil standard for review and with the stringent and limited approach of AEDPA to successive habeas applications. But we need not conclusively decide that here because even under the standard Wiese argues is most favo rable to him

— the Fourth Circuit’s standard requiring a defendant to show that the sentencing court “may have” relied on

5 As Wiese notes in his reply brief, Dimott and Beeman both were original habeas claims under § 2255, as opposed to second or successive application s under § 224 4. See Dimott, 881 F.3d at 233

– 34; Beeman , 871 F.3d at 1218

– 19. Other courts have used some of the analysis from those cases to illuminate the successive issue. See Washington , 890 F.3d at 896 . Moreover, as the standard to grant relief under a second or successive habeas application is even more limited than that of an original habeas applica tion, this distinction does not aid Wiese. Cf. Gonzalez v. Crosby , 545 U.S. 524, 529

– 30 (2005) (noting the restrictions placed on second or successive habeas peti tions due to AEDPA)

. Case: 17-50445 Document: 00514567301 Page: 6 Date Filed: 07/23/2018No. 17

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7 the residual clause for a court to consider a collateral challenge based on Johnson , as articulated in Winston , 850 F.3d at 682

— Wiese has not shown that the sentencing court “may have” relied on the residual clause. I n determining potential reliance on the residual clause by the sentencing court , we may look to (1) the sentencing record for direct evidence of a sentence, Beeman , 871 F.3 d at 1224 n.4 , see also Massey v. United States ,

--- F.3d

---- , No. 17

- 1676, 2018 WL 3370584, at *3 (2d Cir. July 11, 2018) , and (2) “‘the relevant background legal environment that existed at the time of [the defendant’s] sentencing’ and the [presentence report (“PSR”)] and other relevant materials before the district court,” Washington , 890 F.3d at 896 ( citing United States v. Snyder , 871 F.3d 1122, 1128

– 30 (10th Cir. 2017), cert. denied , 138 S. Ct. 1696 (2018) ). Here, although the sentencing judge did not make any statement as to which clause was used for the sentencing enhancement , it is not “more likely than not” that the residual clause came into play. As well , there is nothing to indicate that the sentencin g judge “may have” relied on the residual clause. In 2003, when Wiese was convicted of being a felon in possession, all of § 30.02(a) was considered generic burglary under the enumerated offenses clause of ACCA. See United States v. Silva , 957 F.2d 157, 162 (5th Cir. 1992) ; see also United States v. Stone , 72 F. App’ x 149, 150 (5th Cir. 2003) (per curiam) (citing Silva , 957 F.2d at 161

– 62). 6 That we held five years later that § 30.02(a)(3) is not generic burglary , United States v. Constante , 544 F.3d 584 , 587 (5th Cir. 2008) (per curiam) , or that we held earlier this year that § 30.02 (a) is indivisible, Herrold , 883 F.3d at 529, are of no consequence to determining the mindset of a sentencing judge in 2003. Indeed, Herrold ’s state law analysis

6 Although S tone is not “controlling precedent,” it “may be [cited as] persuasive authority.” Ballard v. Burton , 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4). Case: 17-50445 Document: 00514567301 Page: 7 Date Filed: 07/23/2018No. 17

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8 that undergirded the divisibility determination was largely based upon a Texas Court of Appeals case decided five years after the sentencing in this case. See Herrold , 883 F.3d at 523, 525 ( citing Martinez v. State , 269 S.W.3d 777 (Tex. App.

— Austin 2008 , no pe t. ) )

. Thus, at the time of sentencing, the re was absolutely nothing to put the residual clause on the sentencing court’s radar in this case. What is more, the PSR and other documents before the sentencing court clearly indicate that the sentencing judge would have relied on the enumerated offenses clause in sentencing Wiese. T he PSR identifies “Burglary of a Habitation” as the offense which led to Wiese’s sentence enhancement, and the charges against Wiese in all ten instances for which the Government pr ovided Shepard documents reflect that he was convicted with the requisite intent under Texas Penal Code § 30.02(a)(1). W e have never held that subs ection (a)(1), alone, does not constitute generic burglary ; Herrold declined to reach that issue

. Herrold , 883 F.3d at 541

. Thus, the actual charges that Wiese was convicted of did not present a situation where the residual clause would have, in any way, been considered as a basis for ACCA sentencing enhancement. Neither Mathis nor Herrold can save Wiese’s motion

. Mathis did not state a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court , In re Lott , 838 F.3d at 523, and neither did Herrold , a decision of this court. To the extent that Wiese atte mpts to use Mathis and Herrold to argue that, in light of Johnson , convictions under the enumerated offenses clause must also be re considered, n umerous circuit courts have expressly rejected that cont ention. See Perez v. United States , --- F. App’x

---- , N o. 16

- 17751, 2018 WL 1750555, at *5 (11th Cir. Apr. 12, 2018) (per curiam) , pet. for cert. filed (U.S. Jul. 10, 2018) (No. 18

- 5217) ; Dimott , 881 F.3d at 237; United States v. Safford , 707 F. App’x 571, 573 (10th Cir. 2017) (“What Defendant is attempting is to leverage the irrelevant Johnson decision Case: 17-50445 Document: 00514567301 Page: 8 Date Filed: 07/23/2018No. 17

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9 to enable him to apply Mathis retroactively. We can admire the effort, but we

can not permit such a circumvention of habeas law.”), pet. for cert. filed (U.S. May 25, 2018) (No. 17

- 9170); Holt v. United States , 843 F.3d 720, 723

– 24 (7th Cir. 2016) ; cf. Massey , --- F.3d

---- , 2018 WL 3370584, at *4 ( analogizing to Dimott to hold that similarly bootstrapping Curtis Johnson v. United States , 5 59 U.S. 133 (2010) , to Johnson to support a successive habeas motion “cannot be right” (quoting Dimott , 881 F.3d at 238) ). Although we have not addressed this precise argument before today , we have implicitly rejected the contention as well. See In re Lott , 838 F.3d at 522

– 23 (rejecting the contentions that (1) Johnson applied to a sentencing enhancement based on the enumerated offenses clause, and (2) Mathis could apply to set forth a new, retroactive rule of constitutional law). We expressly reject i t here. Johnson only applied to the residual clause and can not be used to attack sentences under the enumerated offenses clause . If the district court did not rely on the residual clause, Johnson cannot be a jurisdictional predicate, regardless of subseq uent changes in the law , if they are not new, retroactive rule s of constitutional law by the Supreme Court

. In sum, Wiese has not established that the sentencing court “more likely than not” relied upon the residual clause. E ven if we apply the less dema nding “may have relied” standard, t here is no evidence that the sentencing court “may have” relied on the residual clause in sentencing Wiese. Merely a theoretical possibility cannot satisfy this standard. Cf. United States v. Jeffries , 822 F.3d 192, 193

– 94 (5th Cir. 2016) (holding that even if Johnson applied to the residual clause of U nited States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2, a defendant sentenced as a career offender under U.S.S.G. § 4B1.1 would not have an arguable claim for relief beca use his crime was a specifically enumerated crime of violence in the Application Note), cert. denied , 137 S. Ct. 1328 (2017). Therefore, the district court erred in reaching the Case: 17-50445 Document: 00514567301 Page: 9 Date Filed: 07/23/2018No. 17

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10 merits of Wiese’s motion , and we likewise lack jurisdiction to do so. III. Conclusion Because Johnson is not a jurisdictional predicate for Wiese’s § 2255 motion , the district court did not have jurisdiction to reach the merits of the motion . Consequently, we VACATE the district court’s judgment and DISMISS Wiese’s § 2255 motio n for lack of jurisdiction

. Case: 17-50445 Document: 00514567301 Page: 10 Date Filed: 07/23/2018