Lott v. Willis

Filing 4

MEMORANDUM OPINION AND ORDER. Certificate of Appealability is DENIED.. Signed by Judge David C Guaderrama. (mc4)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ALLEN SHANE LOTT,

Petitioner,

§

JIN 26

tM 9:

)YP&JTY

§

v.

21fl7

EP-16-CV-514-DCG

§

J.S. WILLIS, Warden,
Respondent.

§

§

MEMORANDUM OPINION AND ORDER
Allen Shane Lott, a federal prisoner at the La Tuna Federal Correctional Institution in
Anthony, Texas,' challenges his sentence through a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2241. Relying on Mathis v. United States, 136 S. Ct. 2243 (2016), Lott asserts
that his prior state-court conviction for delivery of a controlled substance, in violation of Texas
Health and Safety Code

§

481.112(a), does not qualify as a predicate offense for an enhancement

as a career offender under Sentencing Guidelines § 4B 1.1 and § 4B 1.2.2 He asks the Court to

grant him an evidentiary hearing, resentence him, and give him any other relief that justice may
require.3

After reviewing the record and for the reasons discussed below, the Court will, on its

own motion, deny Lott's petition, pursuant to 28 U.S.C. § 2243.

Anthony is located in El Paso County, Texas, which is within the territorial confines of
the Western District of Texas, El Paso Division. 28 U.S.C. § 124(d)(3) (2012).
2

Pet'r's Pet. 7, Dec.

36

U3RICT COu;r
Dtcr OF TE.XAS

§
§
§

Reg. No. 71160-280,

FILED

19, 2016, ECF No. 1.

Id. at 8.

See 28 U.S.C. § 2243 (2012) ("A court ... entertaining an application for a writ of habeas
shall forthwith award the writ or issue an order directing the respondent to show cause why
corpus
the writ should not be granted, unless it appears from the application that the applicant or person
detained is not entitled thereto.").
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BACKGROUND AND PROCEDURAL HISTORY
Lott was indicated by grand jury in the Western District of Texas, Midland Division, for
conspiring to possess with the intent to distribute "crack" cocaine ("count one"), distributing

"crack" cocaine ("count two"), possessing with the intent to distribute "crack" cocaine ("count
three"), and aiding and abetting in intentionally distributing "crack" cocaine ("count four"). His
counsel successfully negotiated a plea agreement with the

Government.5

Under its terms, Lott

agreed to plead guilty count one of the indictment and waive his "right to seek collateral relief in

post-conviction proceedings
remaining counts of the
imprisonment.8

.,'

In exchange, the Government agreed to move to dismiss the

indictment.7

Lott was sentenced as a career offender to 151 months'

He did not appeal.

Lott filed a collateral attack on his sentence, pursuant to 28 U.S.C.

§

2255, alleging that the

Court erred when it enhanced his sentence under Sentencing Guidelines § 4B i.i9 and § 4B 1.2,10

Plea Agreement, United States

v.

Lott, 7:1 1-CR-19-RAJ (W.D. Tex.), Feb. 25, 2011,

ECF No. 41.
6

Id. at3.
Id.
J., United States v. Lott, 7:1 1-CR-19-RAJ (W.D. Tex.), June 8, 2011, ECF No. 77.

U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a) (U.S. SENTENCING
COMM'N 2010) ("A defendant is a career offender if(1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.").
10

Id. § 4B1.2(b) ("The term 'controlled substance offense' means an offense under federal

or state law, punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit
-2-

based on his prior conviction for "delivery of a controlled substance," in violation of Texas
Health and Safety Code

§ 481.112(a).'2

Relying on Descamps v. United States, 133 S. Ct. 2276

(2013), he argued that section 481.112(a) did not qualify as controlled substance offense because it
set forth various means of committing an offense, but did not establish separate offenses in the
disjunctive.'3

Specifically, he maintained that because section 481.112(a) criminalized an offer

to sell, while the federal definition of a controlled substance offense did not include such an

offense, the state delivery of a controlled substance offense was broader than the Guidelines'

definition of a "controlled substance offense," and could not be used to enhance his sentence. The
Court denied the motion without reaching the merits of the claim, reasoning Lott's motion was

time barred.'4
In a second section 2255 motion, Lott again challenged his sentence as a career offender

under Sentencing Guidelines § 4B 1.1 and § 4B 1.2.15 This time relying on Johnson v. United

substance) or the possession of a controlled substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.").
First Mot. to Vacate 4, United States
2014, ECF No. 89.

v.

Lott, 7:11-CR-19-RAJ (W.D. Tex.), June 25,

Tex. Health & Safety Code Ann. § 481.112(a) (West) ("Except as authorized by this
chapter, a person commits an offense if the person knowingly manufactures, delivers, or possesses
with intent to deliver a controlled substance ..."); Tex. Health & Safety Code Ann. § 481.002(8)
(West) ("Deliver' means to transfer, actually or constructively, to another a controlled substance,
counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship.
The term includes offering to sell a controlled substance, counterfeit substance, or drug
paraphernalia.") (emphasis added).
12

' First Mot. to Vacate 4.
14

'

Order, United States

v.

Lott, 7:1 1-CR-19-RAJ (W.D. Tex.), July 16, 2014, ECF No. 91.

Second Mot. to Vacate 4, United States
-3-

v.

Lott, 7:11-CR-19-RAJ (W.D. Tex.), June 27,

States, 135 S.Ct. 2551(2015), he claimed that his prior conviction for burglary of a habitation in a

Texas state court only qualified as a "crime of violence" under the unconstitutionally vague
"residual clause" of the career offender

guideline.'6

The Court stayed the proceedings pending an

authorization from the Fifth Circuit Court of Appeals to file a second

§

2255

motion.17

The Fifth

Circuit subsequently denied Lott's motion for leave to file a successive section 2255 motion,

reasoning that it was foreclosed by In re Arnick, 826 F.3d 787, 788 (5th Cir.

2016).18

In his instant section 2241 petition, Lott argues that Mathis v. United States, 136 S. Ct.

2243 (2016), "invalidated [his] prior Texas delivery conviction from qualifying as a 4B 1.1
predicate."9

He asks the Court to resentence him without the career offender

enhancement.20

2016, ECF No. 110.
16

See U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (U.S.
SENTENCING COMM'N 2010) ("The term 'crime of violence' means any offense under federal
or state law, punishable by imprisonment for a term exceeding one year, that -- (1) has as an
element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.").
Id.

17

Order Granting Mot. for Stay, United States
2016, ECF No. 115.
5,

v.

Lott, 7:11-CR-I 9-RAJ (W.D. Tex.), July

In re Allen Shane LoU, No. 16-50794 (5th Cir. Aug. 16, 2016). See In re Arnick, 826
F.3d 787, 788 (5th Cir. 2016) ("Johnson announced a new rule of constitutional law that has been
made retroactive by the Supreme Court to cases on collateral review. Welch v. United States,
(2016). However, Johnson did not
L.Ed.2d
, 136 S.Ct. 1257, 1264-65,
U.S.
address Section 4B1.2(a)(2) of the Guidelines. See Johnson, 135 S.Ct. at 2555-57. Nor has the
Supreme Court held that a Guidelines enhancement that increases the Guidelines range implicates
the same due process concerns as a statute that increases a statutory penalty. See United States v.
Pearson, 910 F.2d 221, 223 (5th Cir. 1990); see also United States v. Wilson, 622 Fed.Appx. 393,
, 136 S.Ct. 992, 194 L.Ed.2d 13 (2016).").
405 n. 51(5th Cir. 2015), cert. denied,
18

U.S.

19

Pet'r's Mem. in Supp. 5, Dec.

20

Id. at. 20.

19, 2016, ECF No. 2.

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LEGAL STANDARD

"A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks
the manner in which his sentence is carried out or the prison authorities' determination of
its duration."2'

To prevail, a section 2241 petitioner must show that he is "in custody in

violation of the Constitution or laws or treaties of the United States."22
Ordinarily, a federal prisoner may collaterally attack a sentence only through a
motion pursuant to 28 U.S.C. § 2255.23 But under the "savings clause" of section 2255(e),
he may file a section 2241 habeas petition if a section 2255 motion is "inadequate or
ineffective to test the legality of his detention."24 Section 2255 is "inadequate or

ineffective" if:
2241] petition raises a claim "that is based on a
retroactively applicable Supreme Court decision"; (2) the
claim was previously "foreclosed by circuit law at the time
when [it] should have been raised in petitioner's trial, appeal or
first § 2255 motion"; and (3) that retroactively applicable
decision establishes that "the petitioner may have been
convicted of a nonexistent offense."25
(1) the

[

Section 2241 is not a mere substitute for section 2255, and "[t]he petitioner bears the burden of

21

Packv. Yusuff 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted).

22

28 U.S.C. § 224 l(c)(3) (2012).

23

Kenemore v. Roy, 690 F.3d 639, 640 (5th Cir. 2012).

24

28 U.S.C. § 2255(e) (2012).

25

Garland v. Roy, 615 F.3d 391, 394 (5th Cir. 2010) (quoting Reyes-Requena
States, 243 F.3d 893, 895 (5th Cir. 2001)).
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v.

United

demonstrating that the section 2255 remedy is inadequate or ineffective."26
With these principles in mind, the Court turns to Lott's claim.

ANALYSIS
Loft attacks the manner in which the Court determined his sentence in his section 2241

petition by challenging the enhancement for his prior delivery-of-a-controlled-substance
conviction. Lott cites Mathis v. United States, to support his claim.

He argues "Mathis applies

retroactively ... in this instant proceeding because he is among a class of individuals in the Fifth
Circuit that was prejudiced by the Fifth Circuits prior precedence that erroneously permitted
sentencing courts to provide unlawful

enhancements."27

Mathis is relevant to a determination as to whether a section 481.112(a) conviction

represents "a controlled substance offense" under Sentencing Guideline § 4B 1.1(a).
this determination, a court will generally start with a "categorical

approach"28

In making

and "compare the

elements of the statute forming the basis of the defendant's conviction with the elements of the

"generic" crimei.e., the offense as commonly understood."29

The prior conviction will

qualify as a Sentencing Guideline "predicate only if the statute's elements are the same as, or

narrower than, those of the generic

offense."3°

Some criminal statutes, however, have multiple

26

Pack, 218 F.3d at 452.

27

Pet'r's Mem. in Supp.

28

United States

29

Descamps v. United States, 133 5. Ct. 2276, 2281 (2013).

30

Id.

v.

15, Dec. 19, 2016, ECF No. 2.

Howell, 838 F.3d 489, 494 (5th Cir. 2016).

alternative elements and are

"divisible."31

In these situations, a court may use a "modified

categorical approach" and "examine 'a limited class of documents (for example, the indictment,

jury instructions, or plea agreement and colloquy) to determine what crime, with what elements,
a defendant was convicted

of."32

The court will then apply the categorical approach and

determine whether that precise crime matches an offense described in the

criminal statutes may appear to be divisible, but are not.

Guidelines.33

Other

An indivisible statute may list

"various factual means of committing a single element," rather than providing alternative
elements.34

If a statute under which a defendant was previously convicted is indivisible, a court

may not use the modified categorical approach.
In Mathis, the Supreme Court held that a prior conviction could not qualify as a predicate
offense under the enumerated-offense clause of the Armed Career Criminal Act if an indivisible

element of the offense was broader than an element of the generic offense.35

It further held that

Iowa's burglary statutewhich defined "structure" as "any building, structure, [or] land, water,
or air vehicle"could not qualify as a predicate offense because it was both indivisible and
overbroad, and, therefore, incapable of supporting an
In United States

v.

enhancement.36

Gonzales, the Fifth Circuit Court of Appeals held that a conviction for

31

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).

32

Id.
Id.

'

Id.
Id.

36

at 2251-52.

Id. at 2256-57.

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delivery of a controlled substance under
the

Guidelines.37

§

481.112(a) was not a drug trafficking offense under

Further, in United States

v.

Hinkle, 832 F.3d 569, 574 (5th Cir. 2016), the

Fifth Circuit added that "[t]he decision in Mathis plainly and unmistakably leads to the

conclusion that the definition of 'delivery' in section 481.002(8), as authoritatively interpreted by
the Texas Court of Criminal Appeals, sets forth various means of committing an offense and

does not set forth in the disjunctive separate

offenses."38

The Fifth Circuit concluded it could

not, therefore, support an enhancement:
The "delivery" element of Hinkle's crime of conviction
criminalizes a "greater swath of conduct than the elements of the
relevant [Guidelines] offense." This "mismatch of elements"
means that Hinkle's conviction for the knowing delivery of heroin
is not a controlled substance offense under the Guidelines. That
prior conviction cannot serve as a predicate offense under the
Career Offender Guideline provision, which is § 4B i.i.39
Finally, in United States v. Tanksley, the Fifth Circuit held "[s]ection 481.112(a) is an indivisible

statute to which the modified categorical approach does not

apply."4°

Moreover, the Court

found "[s]ection 481.112(a) 'criminalizes a 'greater swath of conduct than the elements of the
relevant [Guidelines]

offense."41

United States

v.

Thus, the Fifth Circuit concluded that section 481.112(a)

Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (per curiam).

38

United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016) (citing Lopez
293, 299 (Tex. Crim. App. 2003)).
S.W.3d

v.

State, 108

Id. at 576-77.

Tanksley, No. 15-11078, 2017 WL 213835, at *3 (5th Cir. Jan. 18,

40

United States

41

Id. at *4 (quoting Hinkle, 832 F.3d at 576).

v.

2017).

does not qualify as a "controlled substance offense under the Sentencing Guidelines."42

Mathis, Gonzalez, Hinkle, and Tanksley, involve direct appeals of sentences.

makes a collateral attack on his sentence through a section 2241 petition.

if he can meet the stringent test for the section 2255(e) "savings

clause."43

Lott

Lott may prevail only
Section 2255(e)

provides that a court may entertain a petition for writ of habeas corpus challenging a federal
criminal sentence only if it concludes that filing a motion pursuant to section 2255 is inadequate
to challenge a prisoner's

detention.44

A petitioner must satisfy a two-prong test before he may

invoke the "savings clause" to address errors occurring at sentencing in a petition filed pursuant
to section 2241:
[T]he savings clause of § 2255 applies to a claim (i) that is based
on a retroactively applicable Supreme Court decision which
establishes that the petitioner may have been convicted of a
nonexistent offense and (ii) that was foreclosed by circuit law at
the time when the claim should have been raised in the petitioner's
trial, appeal, or first § 2255 motion.45

In general, "a new rule is not 'made retroactive to cases on collateral review' unless the
Supreme Court holds it to be

42

retroactive."46

The exception relevant here is for "watershed rules

Id.

Kinder

v.

Purdy, 222 F.3d 209, 212 (5th Cir. 2000).

"

See 28 U.S.C. 2255(e) ("An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his detention.") (emphasis
added).
'
46

Reyes-Requena
Tyler

v.

v.

United States, 243 F.3d 893, 904 (5th Cir. 2001).

Cain, 533 U.S. 656, 663 (2001).

of criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding."47

To fall within this exception, infringement of the rule must "seriously diminish

the likelihood of obtaining an accurate conviction," and (2) the rule must "'alter our

understanding of the bedrock procedural elements' essential to the fairness of a proceeding."48
The Supreme Court has not expressly held that Mathias applies retroactively to cases on

collateral review.

The Supreme Court also has not suggested that Mathias announced a

watershed rule of criminal procedure or that an infringement of the rule would seriously diminish
the likelihood of an accurate conviction.

"Lott has failed to make a prima facie showing that

Mathis ... set[s] forth new rules of constitutional law that have been made retroactive to cases on
collateral review."49

Furthermore, the Fifth Circuit decided Gonzaleswhich held that a conviction for
delivery of a controlled substance under section 481.112(a) was not a "drug trafficking offense"
for the purposes of the

Guidelinesin 2OO7.° This was well before the federal grand jury

indicted Lott in the Western District of Texas for trafficking cocaine.

He could have raised his

claim at trial, during an appeal, or in a timely section 2255 motion, but he failed to do so.
Additionally, the core idea of the "savings clause" in section 2255 "is that the petitioner

"

Graham

v.

Collins, 506 U.S. 461, 478 (1993).

48

Sawyer v. Smith, 497 U.S. 227, 242 (1990) (quoting Teague
311(1989)).

v.

Lane, 489 U.S. 288,

'

In re Andreco Lott, 838 F.3d 522, 523 (5th Cir. 2016) (citing § 2255(h)(2); §
2244(b)(3)(C); Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir. 2001)).
50

United States

v.

Gonzales, 484 F.3d 712, 716 (5th Cir. 2007) (per curiam).
-10-

may have been imprisoned for conduct which was not prohibited by law."5'

attack his conviction; he challenges his sentencing enhancement.
suggest that he was convicted of a nonexistent

Lott does not

Thus, his challenge does not

offense.52

Finally, Lott's counsel negotiated a plea agreement with the

Government.53

Under its

terms, Lott agreed to plead guilty count one of the indictment and waive his "right to seek

collateral relief in post-conviction proceedings . .
move to dismiss the remaining counts of the

In exchange, the Government agreed to

indictment.55

A criminal defendant may waive the

right to collateral review, so long as the waiver is knowing and voluntary.56

challenge the validity of the plea agreement or his guilty plea.

Lott does not now

His claim is foreclosed by the

waiver in the written plea agreement.
Lott has failed to meet his burden of showing that the section 2255 remedy is inadequate or
ineffective to collaterally challenge his detention. He is not entitled to section 2241 relief on his
claim.

CONCLUSION AND ORDERS
Since Lott's claim does not meet the stringent requirements of the "savings clause," the

51

Reyes-Requena, 243 F.3d at 903.

Padilla v. United States, 416 F.3d 424, 427 (5th Cir. 2005); ReyesRequena, 243 F.3d at
Kinder v. Purdy, 222 F.3d 209, 2 13-14 (5th Cir. 2000).
904;
52

Plea Agreement, United States

v.

Lott, 7:1 1-CR-19-RAJ (W.D. Tex.), Feb. 25, 2011,

ECF No. 41.
Id. at3.

Id.
56

United States v. White, 307 F.3d 336, 339 (5th Cir. 2002).
-11-

Court will not allow him to proceed with a claim pursuant to section 2241. The Court will,

therefore, deny Lott' s petition as frivolous. To the extent that Lott' s petition may be construed as
a successive section 2255 motion, the Court will dismiss his cause for lack

ofjurisdiction57

and

deny him a certificate of appealability.58 Accordingly, the Court enters the following orders:

IT IS ORDERED that Lott's pro

se

petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 is DENIED and his cause is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that all pending motions in this cause, if any, are
DENIED AS MOOT.

IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

day of January, 2017.

UADERRAMA
UNITED STATES DISTRICT JUDGE
DA ID C.

Ojo

v.

INS, 106 F.3d 680, 683 (5th Cir. 1997).

See 28 U.S.C. foll. § 2255 R. 11(a) ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
58

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