# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10364

**United States of America,**

Plaintiff

— Appellee **,**

versus

**Terrell M. Clark,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CV

- 1071

Before **Jones** , **Costa** , and **Duncan** , Circuit Judges

**. Per Curiam**  **:** *

Terrell Clark ’s successive § 2255 petition challenge d his conviction
under 18 U.S.C. § 924(c) pursuant to United States v. Davis , 139 S. Ct. 2319 (2019) . W e are constrained to **REVERSE** the district court decision to the
contrary and **VACATE** Clark ’ s § 924(c) conviction.

* Pursuant to **5th Circuit Rule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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 Circ uit 

### FILED April 27, 2021
Lyle W. Cayce Clerk Case: 20-10364 Document: 00515837409 Page: 1 Date Filed: 04/27/2021No. 20

- 10364

2 I. Background

In 2004, Clark pled guilty to theft of firearms from a licensed firearms dealer in violation of 18 U.S.C. § 924(m) (Count 1) and us ing or carrying a firearm during and in relation to a crime of violence in violation of § 924(c) (Count Two). This appeal centers on Count Two and whether the supposed “crime of violence” Clark committed fell within § 924(c)’s elements clause or its constitutionally defective residual clause. 1
Regarding the § 924(c) offense, Clark’s indictment listed the
follow ing predicate crimes of violence: I nterference with commerce by robbery in violation of 18 U.S.C. § 1951(a) and theft of firearms from a licensed dealer in violation of § 924(m). Clark’s factual resume, howeve r, solely identified the § 924(m) offense all eged in Count One as the predicate
crime of violence

. And both the government and district court acknowledged
the § 924(m) offense as the relevant crime of violence at Clark’s rearraignment.

Clark received an 87

- month prison term for the § 924(m) offense, a consecutive 153

- month prison term for the § 924(c) offense, and concurrent
three

- year terms of supervised release, which was affirmed on direct appeal.
See United States v. Clark , 214 F. App’x 372, 374

– 76 (5th Cir. 2006) (affirming the same aggregate s entence the district court had previously

1 § 924(c) defines “crime of violence” as a felony that either (1) “ has as an e lement the use, attempted use, or threatened use of physical force against the person or property of another ” (the elements clause), or (2) “by its nature, involves a substantial risk that physical force against the person or property of another may be use d in the course of committing the offense” (the residual clause). § 924(c)(3)(A)

- (B); see United States v. Bowens , 907 F.3d 347, 353 (5th Cir. 2018) (describing these clauses). The residual clause was found unconstitutionally vague by the Supreme Court i n Davis . 139 S. Ct. at 2336. Case: 20-10364 Document: 00515837409 Page: 2 Date Filed: 04/27/2021No. 20

- 10364

3 imposed after the district court resentenced Clark pursuant to an earlier remand from the Fifth Circuit).
In 2019, relying on Davis , Clark moved for authorization to file a successive § 2255 motion. 2 This court granted his motion, concluding that Clark had made a showing of possible merit warranting further exploration by the district court. In re Clark , No. 19

- 10989, slip op. at 1 (5th Cir. Dec. 31, 2019) (unpublished).

Clark raise d his claim based o n Davis , and two other claims not at issue in this appeal, before the district court. In its briefing, t he government “concede[d] that Clark ’ s Section 924(c) conviction is premised on a crime

— theft of firearms from a federal firearms licensee

— that no long er qualifies as
a ‘crime of violence’ after Davis ” and asked the district court to “vacate
Clark ’ s Section 924(c) conviction.” The government recognized that
Clark’s Davis claim was “arguably procedurally barred because he failed to
raise the issue on dir ect appeal , ” but it “affirmatively waive[d] any procedural

- default defense” pursuant to government policy.
Notwithstanding the government’s position, the district court rejected Clark’s Davis

- based claim, observed it was not bound by the government’s conce ssion , and held that the claim was barred because Clark’s § 924(m) offense remained a crime of violence after Davis under the still
valid elements clause . The court also denied a certificate of appealability (“ COA ”) . Clark filed a timely notice of appeal

. Approximately one week later, the district court sua sponte issued a n order to “clarify” its prior order,

2 The district court had previously dismissed Clark’s initial § 2255 motion as time barred. Clark v. United States , No. 4:08

- CV

- 432

- A (N.D. Tex. Jul. 23, 2008). Clark had also previously filed two unsuccessful motions for authorization to file successive § 2255 motions. See United States v. Clark , No. 12

- 10720 (5th Cir. Dec. 21, 2012) (unpublished); In re Clark , No. 16

- 10706 (5th Cir. Sept. 30, 2016) (unpublished). Case: 20-10364 Document: 00515837409 Page: 3 Date Filed: 04/27/2021No. 20

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4 explaining that its denial of § 2255 relief was based on both the merits of
Clark’s Davis claim and the procedural bar.

A judge of this court granted Clark’s request for a COA. The court directed the parties to “address the jurisdictional issue whether Clark proved in the district court that the relief he sought relied on a new, retroactive r ule of constitutional law, including whether he showed that it was more likely than not that the district court sentenced him under the part of § 924(c)’s
crime

- of

- violence definition rendered unconstitutional in Davis .” Order 2

– 3, ECF No. 40

- 2 (citations omitted). Additionally, a COA was gra n ted as to (1) whether the district court erred in rejecting Clark’s claim that, after
Davis , his § 924(c) conviction is invalid because his § 924(m) conviction no longer qualifies as a predicate crime of violence; an d (2) whether the district court erred in alternatively determining that Clark’s claim was procedurally
barred where the g overnment waived the issue. Id.

II. Discussion
This court reviews the district court’s factual findings for clear error and its leg al conclusions de novo

. See United States v. Clay , 921 F.3d 550, 554 (5th Cir. 2019) (articulating this standard for appeals of a district court’s
decision under § 2255 ).

A. Jurisdiction al Issue
Clark meets the jurisdictional requirement because (1) it is more likely than not that he was sentenced under § 924(c) ’s residual clause , which was invalidated in Davis ; and (2) this court has treat ed the rule announced in
Davis as retroactive to cases on collateral review. Case: 20-10364 Document: 00515837409 Page: 4 Date Filed: 04/27/2021No. 20

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5 There is little questi on that Clark was sentenced under § 924(c) ’s
residual clause , which was found unconstitutionally vague in Davis

. 3 As
discussed in Part B , the district court erred by not applying the categorical approach to analyzing whether Count Two’s predicate § 924(m) offense was a crime of violence under § 924(c) , 4 and the plain language of § 924(m)
demonstrates his conviction could only be a crime of violence under § 924(c)’ s residual clause.
Furthermore, we are constrained to follow other panels of this court in applying Davis retroactively to a successive § 2255 motion. See In re
Harris , 988 F.3d 239, 240

– 41 (5th Cir. 2021) (Oldham, J., concurring) (recognizing the “ numero us Fifth Circuit panels that have authorized successive motions under § 2255(h)(2) to raise Davis claims ,” and observing
that “ the Government has contested none of them ”)

.
B. Invalidity of Clark’s § 924(c) Conviction After Davis

The district court erred by concluding that § 924(m) fell within § 924(c)’s elements clause, which survive d Davis

. Applying the categori c al approach, even the government agrees that the § 924(m) predicate offense

was not a crime of violence based on its plain language. Sec tion 924(m) states
that “ [a] person who steals any firearm from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector shall be fined under this

3 Clark’s indictment l isted both the § 924(m) offense in Count One and interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) as predicate crimes of violence. Nevertheless, the government and the district court order under appeal have analyzed § 924(m) alone as the predicate offense. T h at is because the factual resume for Count Two identified § 924(m) alone as the predicate crime of violence, and both the government and district court identified § 924(m) as the predicate crime of violence at Clark’s rearraig nment.

4 The categorical approach “ requires us to look at the elements of an offense, rather than the specific facts of a case. ” Bowen , 907 F.3d at 353 n.10 (citations omitted). Case: 20-10364 Document: 00515837409 Page: 5 Date Filed: 04/27/2021No. 20

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6 title, imprisoned not more than 10 years, or both.” The text do es not suggest that the “ use, attempted use, or threat ened use of physical force ” is an element of the offense

. § 924(c)(3)(A) (the element s clause). Thus, applying the categorical approach of Davis , § 924(m) could only be a crime of violence by relying on the constitutionally defunct residual clause. See Davis , 139 S. Ct. at 2328 (recognizing that “ the statutory text commands the categorical approach ”)

. The district court tries to escape this obvious result in two ways. First,
the court distinguish ed this court’s decision in Schmidt by arguing that the statute at issue there, § 922(u), prohibited stealing “from the person or the premises of a person” lic ensed to deal in firearms. United States v. Schmidt,

623 F.3d 257, 261

– 64 (5 th Cir. 2010) (holding that 18 U.S.C. § 922(u) is not, under the categorical approach, a violent offense under the elements test). Schmidt was convicted under the premises prong. See id. at 261 ; Because the statute at issue here, § 924(m), does not distinguish between person s and premises, the district court conclude d that Schmidt was inapposite

. Be that as it may , the district court also look ed to the indictment and
factual resume to establish that § 924(m) was a crime of violence, because “[i]n this case, movant stole the firearms from a licensed firearms dealer through armed robbery.” But , irrespective of the intuitive common sense of
this lo gic, the categorical approach looks to the elements of the statute and

not the substance of the crime committed . Thus, the district court’s analysis and emphasis on the facts of Clark’s particular crime are unpersuasive

. Because a person could violate § 924(m) without the use , attempted use , or threatened use of force, § 924(m) does not constitute a crime of violence without relying on the constitutionally defective residual clause. The district Case: 20-10364 Document: 00515837409 Page: 6 Date Filed: 04/27/2021No. 20

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7 court errored in concluding that Clark was “convicted of a crime that was inherently violent.” 5

C. Procedural Bar
Based on the posture of this case, we must also conclude that t he district court abused its discretion by sua sponte raising the issue of procedural
bar and alternatively denying Clark’s claim on that basis. 6 District courts may raise the issue of procedural bar sua sponte but should not do so lightly.
United States v. Willis , 273 F.3d 592, 597 (5th Cir. 2001). Before doing so,
the district court should consider “ whether the petitioner has been given notice that procedural default will be an issue for consideration, whether the petitioner has had a reasonable opportunity to argue against the application of the bar, and whether the State intentionally waived the defense .” Smith v.
Johnson , 216 F .3d 521, 523

– 24 (5th Cir. 2000); see Prieto v. Quarterman , 456 F.3d 511, 518 (5th Cir. 2006) ( similar ) ; Willis , 273 F.3d at 597 (simila r). 7 Most important, t he government affirmatively waived procedural default as

5 The district court also cited a Fifth Circuit case that “reiterated that robbery by intimidation is a crime of violence.” See United States v. James , 950 F.3d 289 (5th Cir. 2020)); But that case fulfills the categorical approach, as it explicitly recognized Louisiana armed robbery as “the taking of anything o f value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation , while armed with a dangerous weapon.” Id. at 291 (quoting L A

. R EV

. S TAT

. A NN

. § 14:64(A)) (emphasis added).

6 See Pr ieto v. Quarterman , 456 F.3d 511, 518

– 19 (5th Cir. 2006) (reviewing district court’s sua sponte procedural bar ruling for abuse of discretion).

7 As t he government recognizes , Clark waived this argument by failing to brief it before this court. Although t he briefs of pro se litigants are held to less stringent standards,

even pro se litigants must brief arguments and reasonably comply with the briefing requirements of Rule 28. See Grant v. Cuellar , 59 F.3d 523, 524 (5th Cir. 1995) (citing F ED

. R. A PP

. P. 28(a) ). Nevertheless, we have “discretion to consider a noncompliant brief” and have “allowed pro se plaintiffs to proceed when the plaintiff’s noncompliance did not prejudice the opposing party.” Id. at 525 (footnote and citation omitted). Such is the case here. Case: 20-10364 Document: 00515837409 Page: 7 Date Filed: 04/27/2021No. 20

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8 a defense. Additionally, Clark had mini mal notice regarding the procedural
bar issue

. 8 And he had no opportunity to raise counterarguments because the government’s response indicated it was waiving the defense before the
district court decid ed the issue against him

. Accordingly, t he district court abused its discretion by alternatively deciding this case on the procedural bar
issue

. 9

III. Conclusion
Based on the foregoing, we **REVERSE** the district court ’s judgment
and **VACATE** Clark ’ s § 924(c) conviction

.

8 The district court’s order requiring Clark to explain how he satisfies the requirements for filing a successive § 2255 motion arguably provided Clark with some notice regarding the procedural bar issue. But this was insufficient under the totality of circumstances here.

9 In any event, we are not convinced that Clark’s motion is procedurally barred irrespective of waiver. In R eece , this court rejected the government’s argument that a § 2255 motion was procedurally barred because it had not been raised on direct appeal. United States v. Reece , 938 F.3d 630, 634 n.3 (5th Cir. 2019). The panel concluded that if Reece’s convictio ns were based on § 924(c)’s residual clause “ then he would be actually innocent of those charges under Davis ” and “ the cause and prejudice standard does not apply .” Id. Clark raises this argument on appeal. Case: 20-10364 Document: 00515837409 Page: 8 Date Filed: 04/27/2021