USA v. Roy Wells, Jr.

Filing

UNPUBLISHED OPINION FILED. [15-51050 Affirmed ] Judge: EGJ , Judge: LHS , Judge: SAH Mandate pull date is 04/24/2017; denying as moot motion for immediate release filed by Appellant Mr. Roy Lee Wells, Jr. [8293846-2], denying as moot motion to dismiss the indictment filed by Appellant Mr. Roy Lee Wells, Jr. [8082278-2]; granting motion for summary affirmance filed by Appellee USA [8279623-2]; denying as unnecessary motion to extend time to file appellee's brief filed by Appellee USA [8279623-3]; granting motion for certificate of appealability filed by Appellant Mr. Roy Lee Wells, Jr. [8420530-2] [15-51050]

Case: 15-51050

Document: 00513936245

Page: 1

Date Filed: 04/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-51050
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
April 3, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROY LEE WELLS, JR.,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:88-CR-32-1
Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *

Roy Lee Wells, Jr., federal prisoner # 40052-080, was sentenced in 1988
under the Armed Career Criminal Act (ACCA) to 480 months of imprisonment
and five years of supervised release. Wells filed a motion invoking Johnson v.
United States, 135 S. Ct. 2551, 2563 (2015), which invalidated the ACCA’s
residual clause, and 28 U.S.C. § 2255. The motion was denied, and Wells
appealed.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 15-51050

Document: 00513936245

Page: 2

Date Filed: 04/03/2017

No. 15-51050
Wells’s brief requests a certificate of appealability (COA), which must
issue for this court to exercise appellate jurisdiction. Gonzalez v. Thaler, 565
U.S. 134, 142 (2012) (§ 2254 case). Wells’s contention that Johnson applies
retroactively and implicates the constitutionality of his conviction under the
ACCA satisfies the threshold COA standard. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Nevertheless, we agree with the Government that Wells’s
claims are ultimately without merit in light of his three Texas controlled
substance offenses. These convictions are ACCA predicates separate from
residual clause offenses. See 18 U.S.C. § 924(e)(2)(A)(ii); United States v.
Vickers, 540 F.3d 356, 363–66 (5th Cir. 2008). Further briefing is therefore
unnecessary. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
For these reasons, we GRANT Wells a COA; we GRANT the
Government’s motion for summary affirmance and AFFIRM; we DENY as
unnecessary the Government’s alternative request for additional time to file a
brief; and we DENY Wells’s motion to dismiss the indictment as moot.

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