Case: 20-50351     Document: 00515614069          Page: 1    Date Filed: 10/23/2020




              United States Court of Appeals
                   for the Fifth Circuit                          United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                   No. 20-50351                    October 23, 2020
                                                                    Lyle W. Cayce
                                                                         Clerk
   In re: Sherman Lamont Fields,

                                                                           Movant.


                          Motion for an order authorizing
                      the United States District Court for the
                       Western District of Texas to consider
                       a successive 28 U.S.C. § 2255 motion


   Before Higginbotham, Graves, and Costa, Circuit Judges.
   Per Curiam:*
          Sherman Lamont Fields, who was sentenced to death, moves for
   authorization to file a successive 28 U.S.C. § 2255 motion in which he intends
   to challenge three convictions under 18 U.S.C. § 924(c)(1).            We may
   authorize such a motion only if Fields’s claims rely on “newly discovered
   evidence that, if proven and viewed in light of the evidence as a whole, would
   be sufficient to establish by clear and convincing evidence that no reasonable
   factfinder would have found the movant guilty of the offense” or “a new rule
   of constitutional law, made retroactive to cases on collateral review by the
   Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).


          *
            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   opinion should not be published and is not precedent except under the limited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.
Case: 20-50351      Document: 00515614069           Page: 2     Date Filed: 10/23/2020




                                     No. 20-50351


          Fields invokes the latter ground. He argues that, in light of United
   States v. Davis, 

, 2336 (2019), he was erroneously convicted
   and sentenced under section 924(c) based on predicate offenses that are not
   “crimes of violence.”

And he contends that Davis has been made
   retroactive to cases on collateral review by the Supreme Court.              The
   government agrees that Supreme Court precedent makes Davis retroactive
   to cases on collateral review. See Welch v. United States, 

, 1268
   (2016) (holding that rulings that “alter[] the range of conduct . . . that the law
   punishes” are substantive and have “retroactive effect in cases on collateral
   review” (quotation omitted)); Tyler v. Cain, 

, 666 (2001) (stating
   that multiple cases taken together can “render a new rule retroactive” if logic
   so dictates); see also In re Sparks, 

, 262 (5th Cir. 2011) (applying
   Tyler to find that the combined effect of previous Supreme Court cases taken
   together rendered a new rule retroactive “as a matter of logical necessity”).
   Indeed, we have authorized a number of successive petitions based on Davis.
   See, e.g., United States v. Dixon, 799 F. App’x 308, 308–09 (5th Cir. 2020)
   (per curiam); In re Bocanegra, No. 20-10311 (5th Cir. June 2, 2020) (per
   curiam); In re Woods, No. 19-30731 (5th Cir. Oct. 23, 2019) (per curiam).
          While agreeing that Davis can serve as the basis for a successive
   motion, the parties disagree about how many of Fields’s convictions are
   affected by Davis. We agree with the government that two of them are.
   Those two section 924(c) convictions stem from the predicate “crimes of
   violence” of conspiracy to escape and/or escape from federal custody. Fields
   has made a prima facie showing that neither is a crime of violence after Davis.
   See United States v. Robinson, 783 F. App’x 401, 402–03 (5th Cir. 2019)
   (holding that conspiring to escape from federal custody is not a crime of
   violence after Davis) (per curiam); United States v. Taylor, 

, 309
   (5th Cir. 1991) (listing elements of escape offense).




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Case: 20-50351       Document: 00515614069         Page: 3   Date Filed: 10/23/2020




                                    No. 20-50351


            Fields’s third challenged section 924(c) conviction, is based on a
   predicate offense of carjacking. Carjacking remains a crime of violence post-
   Davis, as it “has as an element the use, attempted use, or threatened use of
   physical force.” 18 U.S.C. § 924(c)(3)(A); United Sates v. Jones, 

, 740 (5th Cir. 2017). Thus Fields has not demonstrated that the district
   court need review this conviction in light of Davis.
             Accordingly, IT IS ORDERED that Fields’s motion for
   authorization is GRANTED IN PART and DENIED IN PART. Our
   grant of authorization is tentative, however, in that the district court must
   dismiss the motion without reaching its merits if the court determines that
   Fields has failed to satisfy the requirements of section 2255(h). See 28 U.S.C.
   § 2244(b)(4); Reyes-Requena v. United States, 

, 897–99 (5th Cir.
   2001).




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