IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11384

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

LAWRENCE JAMES TAYLOR, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

We are tasked with deciding whether Lawrence James Taylor’s claim 

that his sentence enhancement is no longer valid under the Armed Career 

Criminal Act (“ACCA”) is constitutionally or statutorily based in light of the 

district court’s conclusion that the now constitutionally defunct residual clause 

“played no role” at his sentencing. We hold that Taylor’s claim is 

constitutionally based and warrants relief under 28 U.S.C. § 2255. 

FACTS AND PROCEEDINGS

In 2006, Lawrence James Taylor pleaded guilty to possession of a firearm 

by a convicted felon—which usually carries a maximum sentence of 10 years’

imprisonment. See 18 U.S.C. § 924(a)(2). The presentence report (“PSR”) 

United States Court of Appeals

Fifth Circuit

FILED

October 12, 2017

Lyle W. Cayce

Clerk

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recommended an enhanced sentence under the ACCA because Taylor had two 

“violent felony”1 convictions for burglary of a building and one “crime of 

violence”2 conviction for injury to a child. See 18 U.S.C. § 924(e)(2)(B). In 

accordance with the ACCA enhancement, the PSR calculated a guideline range 

of 235 to 293 months’ imprisonment. 

Taylor objected to several aspects of the PSR. He did not object or claim, 

however, that his Texas conviction for injury to a child was excluded as an 

ACCA predicate. At his sentencing, Taylor conceded his injury-to-a-child 

conviction was a “crime of violence.” The district court adopted the findings 

and conclusions of the PSR and imposed a prison term of 260 months. Taylor 

appealed his sentence, but did not contend that the district court erred when 

it determined his injury-to-a-child conviction was an ACCA predicate. This 

court affirmed. See United States v. Taylor, 263 F. App’x 402, 407 (5th Cir. 

2008). 

Taylor subsequently filed two motions under § 2255 to vacate his 

sentence. The district court denied relief as to both motions, and this court 

affirmed. 

 

1 Under the ACCA, a “violent felony” means “any 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.

§ 924(e)(2)(B). The first clause is known as the “elements clause.” The beginning of (ii) 

is the “enumerated offenses clause,” and the italicized portion of the text has become known 

as the “residual clause.”

2 “Crime of violence” was mistakenly used to refer to the injury-to-a-child offense 

rather than “violent felony.” This mistake was of no legal consequence, though the 

government argues Taylor’s failure to raise the matter at sentencing makes it more difficult 

for him now to overcome the sentencing court’s finding that the residual clause played no role 

in his sentence.

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In 2015, the Supreme Court held that “imposing an increased sentence 

under the residual clause of the [ACCA] violates the Constitution’s guarantee 

of due process.” Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The 

Court subsequently announced this was a new, substantive rule and therefore 

applied retroactively. See Welch v. United States, 136 S. Ct. 1257, 1268 (2016). 

Taylor sought assistance from the Federal Public Defender’s office 

(“FPD”) to determine whether his injury-to-a-child conviction still counted as 

an ACCA predicate after Johnson. The FPD moved the district court for 

appointment as Taylor’s counsel. The district court denied the motion,

reasoning it “would result in a waste of judicial resources.” 

Taylor requested authorization from this court to file another petition 

under § 2255(h) and again asked for appointment of counsel. While those 

motions were pending before this court, Taylor filed a “placeholder” petition in 

the district court to guard against exceeding the one-year deadline to file 

motions based on Johnson. Taylor moved the court to stay or abate the 

placeholder action until this court could rule on the motions that remained 

pending here.

Before this court ruled on Taylor’s motions, the district court denied the 

placeholder petition and the motion to stay. The district court ruled that the 

placeholder petition was untimely3 and that the ACCA’s residual clause “did 

not play any role in Movant’s sentencing.” The district court noted Taylor’s 

concession that the injury-to-a-child offense counted as a violent felony, and it 

stated that Taylor should have challenged the classification of the conviction 

at sentencing. The district court opined that if Taylor were allowed to file his 

successive § 2255 motion, “the [federal] sentencing scheme . . . would be 

 

3 The government does not dispute Taylor’s assertion that his motion was timely. 

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upended.” The court further declared that because Taylor did not argue that 

his injury-to-a-child conviction fell outside the definition of a violent felony at 

sentencing, “there would be no basis for a § 2255 review of that issue even if 

his second and successive § 2255 motion had been his first and even if it had 

been timely filed.” 

This court subsequently appointed the FPD as counsel and granted 

authorization to file a successive § 2255 petition. When granting authorization 

to file the petition, this court explained that Fifth Circuit precedent indicated 

that a Texas conviction for injury to a child may not qualify as an ACCA 

predicate offense in light of Johnson.4 This court warned, however, that “[the]

grant of authorization is tentative in that the district court must dismiss 

the § 2255 motion without reaching the merits if it determines that Taylor has 

failed to make the showing required to file such a motion.” The case was

transferred back to the district court “for filing as a § 2255 motion.” 

Within a week, and before any documents were filed, the district court 

entered a sua sponte order dismissing the action, adopting its reasoning from 

its previous order dismissing the placeholder motion. The district court denied 

Taylor’s request for a certificate of appealability and concluded that Taylor 

could not make the showing this court required because Taylor failed to make 

the argument that injury to a child is not an ACCA predicate offense at the 

time of his sentencing and on appeal. 

 

4 The court cited United States v. Gracia-Cantu, 302 F.3d 308, 311-13 (5th Cir. 2002), 

United States v. Andino-Ortega, 608 F.3d 305, 311 (5th Cir. 2010), and United States v. Moore, 

635 F.3d 774, 776 (5th Cir. 2011). This court has since issued an opinion holding that Texas’s 

injury-to-a-child offense is broader than ACCA’s elements clause. United States v. MartinezRodriguez, 857 F.3d 282, 286 (5th Cir. 2017). 

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Taylor appealed and this court granted a certificate of appealability as 

to three issues5 and ordered expedited briefing. Taylor now asks this court to 

exercise its statutory authority under 28 U.S.C. § 2106 to render judgment in 

his favor and grant Taylor’s motion to vacate the ACCA sentence. He has 

already served more than 129 months of his 260 month sentence. 

STANDARD OF REVIEW

When considering challenges to a district court’s decisions under 28 

U.S.C. § 2255, this court reviews questions of law de novo. United States v. 

Faubion, 19 F.3d 226, 228 (5th Cir. 1994). All of the certified issues raise 

questions of law. 

DISCUSSION

As an initial matter, the government concedes two of the issues certified 

on appeal. It acknowledges that, under this court’s precedent, Taylor’s injuryto-a-child conviction no longer counts as an ACCA predicate after Johnson. See 

United States v. Martinez-Rodriguez, 857 F.3d 282, 286 (5th Cir. 2017) (holding 

as a matter of statutory construction that Texas’s injury-to-a-child offense is 

broader than ACCA’s elements clause). The government further concedes that 

if Taylor’s claim is constitutionally based, then Taylor’s sentence exceeds the 

statutory maximum.6

The government does not contend that the new rule the Supreme Court 

announced in Johnson was available to Taylor at the time of sentencing or that 

 

5 The issues included: (1) whether the district court erred in concluding that Taylor 

should have challenged his Texas injury-to-a-child conviction as an ACCA predicate at 

sentencing; (2) whether the conviction qualifies as an ACCA predicate after United States v. 

Johnson; and (3) whether the sentence imposed now exceeds the statutory maximum.

6 “[I]f this Court determines that Taylor’s current motion presents a constitutional 

claim under section 2255(h)(2), . . . [the government] would agree to relief from the 260-month

sentence as exceeding the 10-year statutory maximum for possessing a firearm as a convicted 

felon.” 

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Taylor should have challenged his Texas injury-to-a-child conviction.7 Rather, 

the government argues that Congress has authorized relief under § 2255(h)(2) 

only if it is based on “a new rule of constitutional law, made retroactive to cases 

on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2) (emphasis 

added). Pointing to the district court’s conclusion that the residual clause 

played no role at Taylor’s sentencing, the government contends that Taylor 

bears the burden of proof to show that the district court, at his sentencing 

hearing, construed his injury-to-a-child conviction as an ACCA predicate under 

the residual clause, rather than the still-valid elements clause. However, the 

government points to no precedential authority at the time of sentencing 

finding this crime to be a violent felony under the elements clause.

If Taylor can show that the district court sentenced him under the now 

constitutionally infirm “residual clause,” the government acknowledges that 

he will have demonstrated that a constitutional error occurred and that he 

warrants the relief he seeks. If, however, Taylor cannot make that showing—

whether because the district court simply did not explicitly determine which 

clause of the ACCA it used to enhance Taylor’s sentence or for some other 

reason—then, according to the government, the mistake is statutory, not 

constitutional. In that event, relief could be granted only under 28 

U.S.C. § 2241, if at all. Put simply, this case turns on a single issue: Whether 

Taylor’s claim is constitutionally or statutorily based.

Many courts considering this question have rejected the government’s 

position that the defendant must demonstrate that the district judge actually 

 

7 “[T]he government [does] not assert the procedural defense inherent in the first 

certified issue.” 

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relied on the residual clause during sentencing. These courts’ reasons for 

rejecting the government’s position have been many and varied. 

For example, the Fourth Circuit addressed an action in which “the record 

[did] not establish that the residual clause served as the basis for concluding 

that [defendant’s] prior convictions . . . qualified as violent felonies.” United 

States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017). That court declined to 

“penalize a movant for a court’s discretionary choice not to specify under which 

clause of Section 924(e)(2)(B) an offense qualified as a violent felony.” Id. The 

court explained that “nothing in the law requires a court to specify which 

clause it relied upon in imposing a sentence.” Id. (quoting In re Chance, 831 

F.3d 1335, 1340 (11th Cir. 2016)). The Fourth Circuit worried that “imposing 

the burden on movants urged by the government . . . would result in ‘selective 

application’ of the new rule of constitutional law announced in Johnson II.” Id.

That result would violate “‘the principle of treating similarly situated 

defendants the same.’” Id. (quoting Teague v. Lane, 489 U.S. 288, 304 (1989)). 

The Ninth Circuit has stated that “when it is unclear from the record 

whether the sentencing court relied on the residual clause, it necessarily is 

unclear whether the court relied on a constitutionally valid or a 

constitutionally invalid legal theory.” United States v. Geozos, 870 F.3d 890, 

895 (9th Cir. 2017). The court analogized this situation to that of a defendant 

who has been convicted by a jury that was instructed on two theories of 

liability, one valid and the other invalid. Id. at 896. Of course, in such 

situations, under what is known as the “Stromberg principle,” the Constitution 

is “violated by a general verdict that may have rested on that [invalid] ground.” 

Id. (quoting Griffin v. United States, 502 U.S. 46, 53 (1991)); see also Stromberg 

v. California, 283 U.S. 359 (1931). The Ninth Circuit was persuaded that a rule 

analogous to the Stromberg principle should apply in the sentencing context. 

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Id. Accordingly, the court held 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 II.” Id.

Numerous district courts around the country have similarly concluded 

that the government’s position is constitutionally untenable. See United States 

v. Wilson, No. CR 96-0157 (ESH), 2017 WL 1383644, at *3 (D.D.C. Apr. 18, 

2017) (collecting cases). One district court noted that the fact that a record may 

be unclear as to whether a judge relied on the elements clause or the residual 

clause during sentencing “is neither []surprising nor fatal.” United States v. 

Booker, 240 F. Supp. 3d 164, 168 (D.D.C. 2017). That court opined that the 

position the government adopted would create “the absurd result” that of two 

defendants who had filed the same motions and had the same prior convictions, 

one would be entitled to relief if the sentencing judge years earlier had 

“thought to make clear that she relied on the residual clause.” Id. at 169 

(quoting Chance, 831 F.3d at 1340). The court also concluded that adopting the 

government’s position would violate Teague’s requirement that similarly 

situated defendants must be treated the same. Id. (quoting Teague, 489 U.S. 

at 304).

The Tenth and Eleventh Circuits, however, have required movants to 

show something more. The Tenth Circuit determined it is possible to tell

whether a district court relied upon the residual clause when the sentencing 

record is unclear “by looking to the relevant background legal environment at 

the time of sentencing.” United States v. Snyder, No. 16-8117, 2017 WL 

4171886, at *5 (10th Cir. Sept. 21, 2017) (quoting Geozos, 870 F.3d at 896). 

Courts take a “snapshot” of the law at the time of the sentencing and determine 

whether a defendant’s convictions “fell within the scope” of the other ACCA 

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clauses. Id. If there “would have been no need for reliance on the residual 

clause,” then the defendant fails to meet his burden. Id. at *6. 

A few panels of the Eleventh Circuit first suggested in dicta that 

defendants must bear the burden of demonstrating definitively that the 

district court relied upon the residual clause when sentencing them under the 

ACCA. See In re Moore, 830 F.3d 1268, 1271-72 (11th Cir. 2016) (suggesting 

that a movant has the burden of showing that he is entitled to relief even when 

it is unclear whether the district court relied on the residual clause or other 

ACCA clauses); In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (opining 

that a prisoner “must show that he was sentenced under the residual clause in 

the ACCA”). 

A subsequent panel of the Eleventh Circuit subverted those decisions

and criticized Moore for “suggest[ing] that the sentencing court must 

ignore . . . precedent unless the sentencing judge uttered the magic words 

‘residual clause.’” Chance, 831 F.3d at 1340. The Chance panel stated, “[n]ot 

only is Moore’s dicta just that—dicta—but it also seems quite wrong.” Id. at 

1339. The Chance panel acknowledged, of course, that “the inmate is the one 

who has to make the showing that his sentence is now unlawful,” id. at 1341, 

but the panel argued that a defendant should be required to show no more than 

that § 924(e)(2)(B)(ii)8 may no longer authorize his sentence after Johnson—

“not proof of what the judge said or thought at a decades-old sentencing.” Id.

at 1341. The Chance panel acknowledged, however, that its own opinion was 

merely dicta. Id. at 1339.

 

8 The provision at issue in Chance was not § 924(e)(2)(B), but rather was the “‘very 

similar’ § 924(c)(3)(B) residual clause.” Id. at 1337.

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Finally, a panel of the Eleventh Circuit ruled, over dissent, that “[t]o 

prove a Johnson claim, the movant must show that—more likely than not—it 

was use of the residual clause that led to the sentencing court’s enhancement 

of his sentence.” Beeman v. United States, No. 16-16710, 2017 WL 4210419, at 

*5 (11th Cir. Sept. 22, 2017). But the court acknowledged in a footnote that “if 

the law was clear at the time of sentencing that only the residual clause would 

authorize a finding that the prior conviction was a violent felony, that 

circumstance would strongly point to a sentencing per the residual clause.” Id. 

at *7 n.5. The court stressed that it is the state of the law at the time of the 

sentencing that matters, and subsequent legal decisions would “cast[] very 

little light, if any,” on the question of whether the defendant was sentenced 

under the residual clause. Id. 

We need not decide today which, if any, of these standards we will adopt 

because we conclude that Taylor’s § 2255 claim merits relief under all of them.

Like the cases discussed above, here the district court did not specify under 

which clause of the ACCA it was sentencing Taylor. The district court later

concluded that the ACCA’s residual clause “did not play any role in Movant’s 

sentencing.” The district judge faulted Taylor for failing to object or to obtain 

clarification. But, as noted by other courts, Taylor had no legal right to such a 

determination. See, e.g., Winston, 850 F.3d at 682; Chance, 831 F.3d at 1340 

(“Nothing in the law requires a judge to specify which clause of 

[§ 924(e)(2)(B)]—residual or elements clause—it relied upon in imposing a 

sentence.”). And there was no reason for him to object in 2006 because nearly 

a decade passed before the Supreme Court decided Johnson.

As the government concedes, under Martinez-Rodriguez, Texas’s injuryto-a-child offense is broader than the ACCA’s elements clause. 857 F.3d at 286. 

And the injury-to-a-child conviction is necessary to sustain Taylor’s sentence 

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enhancement because it is one of the three required predicate 

offenses. See § 924(e). This is sufficient to show that § 924(e)(2)(B)(ii) “may no 

longer authorize his sentence as that statute stands after Johnson.” Chance, 

831 F.3d at 1341. Thus, Taylor’s claim would merit relief in both the Fourth 

and Ninth Circuits. 

At the time of Taylor’s sentencing, this court had not ruled directly on 

the question of whether Texas’s injury-to-a-child offense is broader than the 

ACCA’s elements clause. But here, unlike the cases from the Tenth and 

Eleventh Circuits, there was precedent suggesting that Taylor’s third 

predicate conviction could have applied only under the residual clause. See

United States v. Gracia-Cantu, 302 F.3d 308, 311-13 (5th Cir. 2002). Thus, even 

using the Tenth Circuit’s “snapshot” inquiry or the Eleventh Circuit’s “more 

likely than not” test, Taylor would prevail. Theoretically, the district court 

mistakenly could have been thinking of the elements clause when sentencing 

Taylor. But this court will not hold a defendant responsible for what may or 

may not have crossed a judge’s mind during sentencing. 

Thus, Taylor demonstrated a constitutional injury and satisfies the 

showing required under § 2255(h)(2). Accordingly, we hold that the district 

court erred and REVERSE its dismissal of Taylor’s § 2255 motion.

Because Taylor has already exceeded the 10-year statutory maximum for 

his sentence—he has served more than 129 months—and because the 

government stated that “if this Court determines that Taylor’s current motion 

presents a constitutional claim, . . . [the government] would agree to relief,” we

exercise our authority under § 2106 and vacate the ACCA enhancement of his 

sentence. 

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CONCLUSION

For the aforementioned reasons, we REVERSE the district court and 

grant Taylor’s 28 U.S.C. § 2255 motion. We further exercise our authority 

under 28 U.S.C. § 2106 to vacate the ACCA enhancement and reform Taylor’s

sentence to the statutory maximum of 10 years. Because he has served more 

than the 10-year maximum, we order Taylor’s immediate release. 

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