IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60361

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID LAMONT LIDDELL,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:16-CV-480

Before STEWART, Chief Judge, and HIGGINSON and COSTA, Circuit 

Judges.

PER CURIAM:*

David Lamont Liddell, federal prisoner # 09745-043, was convicted of 

being a felon in possession of a firearm, and the district court determined that 

he was subject to sentencing under the Armed Career Criminal Act (ACCA). 

Although, on the Government’s motion, the district court disregarded the 

ACCA’s mandatory minimum sentence and imposed a 120-month term of 

 

* Pursuant to 5TH CIR. R. 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 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2019

Lyle W. Cayce

Clerk

 Case: 17-60361 Document: 00515103748 Page: 1 Date Filed: 09/04/2019
No. 17-60361

2

imprisonment, Liddell filed a 28 U.S.C. § 2255 motion challenging the five-year 

term of supervised release that was imposed as part of his sentence, in light of 

Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied 

relief, concluding that Liddell’s prior Mississippi convictions of armed robbery 

and aggravated assault qualify as violent felonies under the ACCA. This court 

granted a certificate of appealability on whether the district court erred in that 

decision.

We review the district court’s determination that a prior conviction 

qualifies as a ‘violent felony’ under ACCA de novo. United States v. Seyfert, 67 

F.3d 544, 546 (5th Cir. 1995); United States v. Vidaure, 861 F.2d 1337, 1340 

(5th Cir. 1988). A “violent felony” is a crime punishable by more than one year 

in prison that (1) has as an element the use, attempted use, or threatened use 

of physical force against another (the elements clause), (2) is the enumerated 

offense of burglary, arson, or extortion, or involves the use of explosives (the 

enumerated offenses clause), or (3) “otherwise involves conduct that presents 

a serious potential risk of physical injury to another” (the residual clause). 18 

U.S.C. § 924(e)(2)(B); United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 

2017). Johnson has no effect on the elements or enumerated offenses clauses, 

but a sentence imposed under the residual clause is now unconstitutional. See

135 S. Ct. at 2563.

Under Mississippi Code Annotated § 97-3-79, armed robbery is 

committed by “feloniously tak[ing] or attempt[ing] to take from the person or 

from the presence the personal property of another and against his will by 

violence to his person or by putting such person in fear of immediate injury to 

his person by the exhibition of a deadly weapon.” Liddell challenges his armed 

robbery conviction as a valid ACCA predicate because § 97-3-79 can be violated 

by putting a victim in fear. His argument is unavailing, however, in light of 

 Case: 17-60361 Document: 00515103748 Page: 2 Date Filed: 09/04/2019
No. 17-60361

3

recent holdings that similarly-worded robbery statues involve sufficient force

to meet the elements clause definition of “violent felony.” See Stokeling v. 

United States, 139 S. Ct. 544, 554 (2019); United States v. Burris, 920 F.3d 942, 

958 (5th Cir. 2019).

In 2005, when Liddell was convicted under Mississippi Code Annotated 

§ 97-3-7(2) (West. 2005), aggravated assault was committed by “attempt[ing]

to cause serious bodily injury to another, or caus[ing] such injury purposely, 

knowingly or recklessly under circumstances manifesting extreme indifference 

to the value of human life” or by “attempt[ing] to cause or purposely or 

knowingly caus[ing] bodily injury to another with a deadly weapon or other 

means likely to produce death or serious bodily harm.” Hutchinson v. State, 

594 So. 2d 17, 19 n.1 (Miss. 1992); see also Snowden v. State, 131 So. 3d 1251, 

1255-56 & n.2 (Miss. Ct. App. 2014) (recognizing that statute’s 2012 

amendment). Liddell contends that his aggravated assault conviction is not a 

valid ACCA predicate offense because it can be committed using non-violent 

force, such as poison.

In United States v. Reyes-Contreras, 910 F.3d 169, 180-84 (5th Cir. 2018) 

(en banc), we considered 18 U.S.C. § 16(a), which defines “crime of violence” as 

“an offense that has as an element the use, attempted use, or threatened use 

of physical force against the person or property of another.” Overruling prior 

caselaw to the extent it distinguished between direct and indirect force, we

held that the use of force can include knowing or reckless conduct, indirect 

force can constitute the use of physical force, and there is no distinction 

between causation of injury and use of force. Id. (relying on, inter alia, United 

States v. Castleman, 572 U.S. 157 (2014), and Voisine v. United States, 136 S. 

Ct. 2272 (2016)).

 Case: 17-60361 Document: 00515103748 Page: 3 Date Filed: 09/04/2019
No. 17-60361

4

In light of the foregoing, the district court correctly ruled that Liddell’s 

armed robbery and aggravated assault convictions qualified as predicate 

offenses under § 924(e)(2)(B)(i)’s elements clause definition. The judgment of 

the district court is AFFIRMED.

 Case: 17-60361 Document: 00515103748 Page: 4 Date Filed: 09/04/2019