Case: 18-10058     Document: 00515592646         Page: 1     Date Filed: 10/07/2020




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

                                                                             FILED
                                                                       October 7, 2020
                                  No. 18-10058                          Lyle W. Cayce
                                Summary Calendar                             Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Karlos Marshall,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:16-CV-1916
                           USDC No. 3:10-CR-158-1


   Before Higginbotham, Jones, and Costa, Circuit Judges.
   Per Curiam:*
          In 2011, Karlos Marshall was convicted of being a felon in possession
   of a firearm in violation of 18 U.S.C. § 922(g)(1). Marshall received an
   enhanced 15-year prison sentence under 18 U.S.C. § 924(e), the Armed



          *
            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   opinion should not be published and is not precedent except under the limited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: 18-10058     Document: 00515592646           Page: 2   Date Filed: 10/07/2020




                                    No. 18-10058


   Career Criminal Act (ACCA), based in relevant part on his prior Texas
   conviction for aggravated assault in violation of Texas Penal Code
   §§ 22.01(a)(1) and 22.02(a)(2). We affirmed on direct appeal, and the
   Supreme Court denied Marshall’s petition for a writ of certiorari. United
   States v. Marshall, 487 F. App’x 895, 896-901 (5th Cir. 2012), cert. denied,
   

(2013). Marshall filed an unsuccessful 28 U.S.C. § 2255
   motion, and we denied a certificate of appealability (COA).
          Following the Supreme Court’s decision in Johnson v. United States,
   

, 606 (2015), which struck down the residual clause of the
   violent-felony definition found at § 924(e)(2)(B)(ii) as unconstitutionally
   vague, we granted Marshall authorization to file a successive § 2255 motion
   challenging the validity of his enhanced 15-year sentence. The district court
   denied relief on the merits, concluding that, even without relying on the
   residual clause, Marshall’s prior Texas conviction for aggravated assault with
   a deadly weapon met the requirements for an enhanced sentence under the
   still-valid elements clause of the ACCA. Marshall timely appealed.
          Marshall persists that, post-Johnson, his prior Texas conviction for
   aggravated assault with a deadly weapon was improperly used as a predicate
   violent felony for purposes of the ACCA. He asserts that several of this
   court’s decisions, published and unpublished, when taken together, appear
   to foreclose his argument. He maintains, though, that those cases were
   wrongly decided and raises the issue here to preserve it for further review.
   The Government has filed an unopposed motion for summary affirmance.
   We conclude that summary affirmance is not appropriate here, see Groendyke
   Transp., Inc. v. Davis, 

, 1162 (5th Cir. 1969), and the
   Government’s motion is DENIED. Nevertheless, this case can be resolved
   on the record before us. We therefore dispense with further briefing, and the
   Government’s alternative motion for an extension of time for briefing is
   DENIED as unnecessary.



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Case: 18-10058      Document: 00515592646          Page: 3   Date Filed: 10/07/2020




                                    No. 18-10058


          A prisoner making a Johnson claim in a successive § 2255 motion bears
   the burden of proving that “it was more likely than not that he was sentenced
   under the residual clause.” United States v. Clay, 

, 559 (5th Cir.
   2019), cert. denied, 

(2020). In considering the jurisdictional
   question presented here, we “must look to the law at the time of sentencing
   to determine whether a sentence was imposed under” the now-invalid
   residual clause of § 924(e) or one of its remaining clauses. 

; see also 

. We may also consider the sentencing
   record, the presentence report, and other relevant materials before the
   sentencing court. 

. Our review of the law and other
   materials satisfies us that Marshall has failed to meet his burden of showing
   that it is “more likely than not” that the sentencing court relied upon the
   residual clause. See 

.
          In light of the foregoing, the district court lacked jurisdiction to
   consider the merits of Marshall’s successive § 2255 motion, and we lack
   jurisdiction to do so on appeal. 

, 726. Accordingly, we
   VACATE the judgment of the district court denying relief and remand with
   instructions to DISMISS Marshall’s § 2255 motion for lack of jurisdiction.




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