MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge

Info@MoreLaw.com - 855-853-4800

Description:

New Orleans, LA - Criminal defense lawyer represented defendant with possession of a firearm by a convicted felon charge.

In 2013, Travis Trumane Barlow pled guilty to possession of a firearm
by a convicted felon in violation of 18 U.S.C. Section 922(g)(1). Relevant to
an argument raised now by the government, Barlow waived in the plea
agreement his “right to appeal . . . [or] challenge the conviction and sentence
in any post-conviction proceeding.” He reserved, though, the right to appeal
“any punishment imposed in excess of the statutory maximum” and to make
a “collateral attack respecting claims of ineffective assistance of counsel.”
In 2014, the district court accepted the agreement and sentenced
Barlow to 235 months in prison and two years of supervised release. The
length of the sentence resulted from the court’s finding that he was an armed
career criminal due to three convictions under state law for serious drug
offenses. See 18 U.S.C. § 924(e)(1). Barlow appealed. In 2015 we agreed
with his counsel that there were no nonfrivolous issues for appeal and
affirmed. United States v. Barlow, 616 Fed. App’x 131, 131 (5th Cir. 2015).
In 2016, Barlow filed a pro se motion under 28 U.S.C. Section 2255 to
vacate his sentence. Barlow argued that his counsel was ineffective at
multiple stages in his proceedings. Barlow also contended that his prior
convictions in state court for possession with intent to distribute marijuana
no longer qualified as serious drug offenses after the Supreme Court’s
decision in Mathis v. United States, 136 S. Ct. 2243 (2016). Those convictions
were for “Possession with Intent to Distribute Marijuana” in 2004 and 2005
and “Possession with Intent to Distribute/Manufacture a Controlled
Dangerous Substance – Schedule I” in 2005 under Louisiana Revised
Statutes Section 40:966(A).
In response, the government argued that Barlow did not show his
representation was inadequate and that he waived his right to bring a
collateral challenge to his sentence except as to ineffective assistance of
Case: 18-30994 Document: 00516085309 Page: 2 Date Filed: 11/08/2021
No. 18-30994
3
counsel. Regardless of waiver, the government maintained that convictions
under the Louisiana statute qualified as serious drug offenses under the
ACCA. Barlow responded that his sentence under the ACCA was illegal and
that the right to challenge an illegal sentence cannot be waived. He also
maintained that Section 40:966(A) was indivisible, asserting that “the
production, manufacture, distribution or dispensing are all means of
satisfying the single element of possession with intent” to distribute.
The district court denied Barlow’s Section 2255 motion, concluding
his ineffective assistance of counsel claims were meritless and that he had
waived his right to challenge his sentence on collateral review. Barlow filed
a timely appeal. The district court granted a certificate of appealability
(“COA”) on certain claims regarding the lack of effective counsel. We
subsequently granted an additional COA about his ACCA-based sentence.
DISCUSSION
We first briefly address Barlow’s arguments concerning the
effectiveness of his trial counsel. Barlow presented several claims about his
counsel in district court, which were rejected. The district court then
granted a COA for this court to consider them. Nonetheless, Barlow has
failed to brief those claims on appeal and has therefore abandoned them. See
Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
Barlow does make a new claim on appeal about his counsel’s
ineffectiveness. The claim is that his trial counsel failed to advise him before
he entered into the plea agreement that he could be subject to a 15-year
mandatory minimum sentence under the ACCA. He did not, however,
present that claim to the district court. Further, he neither sought nor
obtained a COA on this claim. “We do not consider claims raised for the first
time on appeal or issues not included in a COA.” United States v. Scruggs,
691 F.3d 660, 666 (5th Cir. 2012); see also Lackey v. Johnson, 116 F.3d 149, 152
Case: 18-30994 Document: 00516085309 Page: 3 Date Filed: 11/08/2021
No. 18-30994
4
(5th Cir. 1997) (applying this principle to a pro se petitioner). Therefore, we
have no issue to analyze regarding the effectiveness of Barlow’s counsel.
We now examine the sentencing issue. Barlow claimed in district
court that his prior Louisiana state-court convictions did not constitute
serious drug offenses that would allow him to be sentenced under the ACCA.
The district court did not reach the merits of the issue, instead concluding
that the waiver of the right to seek collateral review that appeared in his plea
agreement barred this challenge.
On appeal, Barlow contends that the collateral-review waiver does not
bar his challenge to his sentence because he reserved his right to appeal a
sentence imposed in excess of the statutory maximum. Essentially, Barlow
argues that if his prior Louisiana convictions for possession with intent to
distribute no longer qualified as “serious drug offenses” under Section
924(e)(1), his 235-month sentence would exceed the ten-year statutory
maximum sentence that otherwise applied to his conviction. See 18 U.S.C. §
924(a)(2). The government disagrees, arguing that Barlow’s waiver only
reserved the right to appeal, not collaterally attack, a sentence imposed in
excess of the statutory maximum.
We conclude that resolution of the waiver issue would be more
difficult than resolving whether Barlow’s state convictions were serious drug
offenses. That is particularly true because of the clarity that the Supreme
Court recently brought to the precise issue of defining “serious drug
offenses.” See Shular v. United States, 140 S. Ct. 779, 783 (2020). We
proceed along this alternative course even though the district court never
reached the merits of the argument. We have authority to do so inasmuch as
we may affirm on any basis supported by the record. United States v. Chacon,
742 F.3d 219, 220 (5th Cir. 2014). The record of the state convictions is clear,
and so is the law.
Case: 18-30994 Document: 00516085309 Page: 4 Date Filed: 11/08/2021
No. 18-30994
5
Barlow was convicted under Section 922(g)(1) as a convicted felon in
possession of a firearm that had traveled in interstate commerce. A
defendant convicted under this statute faces a maximum sentence of ten
years. 18 U.S.C. § 924(a)(2). The ACCA, however, imposes a 15-yearminimum sentence if the offender’s prior criminal record includes at least
three convictions for “violent felon[ies]” or “serious drug offense[s].” 18
U.S.C. § 924(e)(1). A state offense counts as a “serious drug offense” only
if it “involve[es] manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance” and is punishable by a
sentence of ten years or more. 18 U.S.C. § 924(e)(2)(A)(ii).
When deciding whether an offender’s prior convictions qualify for
minimum sentencing under the ACCA, courts apply what is called a
“categorical approach,” looking “only to the statutory definitions of the
prior offenses.” Taylor v. United States, 495 U.S. 575, 600 (1990). Applying
that doctrine to the category of “serious drug offenses” under the ACCA,
the Supreme Court quite recently held that the state offense simply must
“involve” the conduct described in Section 924(e)(2)(A)(ii), namely, the
“manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance” and which is punishable by at least a tenyear sentence. Shular, 140 S. Ct. at 785.1
1 The government argued in district court as to Barlow that the “modified
categorical approach” applied, citing Mathis, 136 S. Ct. at 2249. Because a “statute may
list elements in the alternative,” the categorical approach is modified when there are
alternative elements. Id. In Shular, the Supreme Court discussed only the categorical
approach, and we similarly limit our terminology. 140 S. Ct. at 784–85. The Court
discussed different conduct, not different elements, hence the label of “modified
categorical approach” is a poor fit. See id. We understand the Court to have meant,
though, that if the state statute of conviction included, for example, manufacturing
controlled substances as one of several categories of conduct, and it was only for
manufacturing that the defendant was convicted, the ACCA would apply.
Case: 18-30994 Document: 00516085309 Page: 5 Date Filed: 11/08/2021
No. 18-30994
6
The counterargument rejected in Shular was that the elements of
generic offenses of manufacturing, distribution, or possessing controlled
substances with the correct intent had first to be defined, then those elements
compared to those of the state offense. Id. at 784. Not only did Section
924(e)(2)(A)(ii) apply “to all offenders who engaged in certain conduct,”
but the Court found that the section’s “text and context leave no doubt that
it refers to an offense involving” that conduct. Id. at 787. In other words,
there was no statutory ambiguity. Id.
In two recent opinions, we have applied Shular to uphold mandatory
sentences imposed under the ACCA. See United States v. Bass, 996 F.3d 729,
735–742 (5th Cir. 2021) (holding that convictions for “possession with intent
to deliver” under Arkansas law qualified as “serious drug offenses” under
the ACCA); United States v. Prentice, 956 F.3d 295, 300 (5th Cir. 2020)
(holding the same for “possession with intent to deliver” under Texas law).
In both opinions, this court emphasized Shular’s central “holding that
Section 924(e)(2)(A)(ii) requires only that the state offense involve the
conduct specified in the federal statute.” See Bass, 996 F.3d at 741; Prentice,
956 F.3d at 299–300 (noting Shular “broadens the understanding of ‘a
serious drug offense’ by focusing on the underlying conduct”)(emphasis in
original). We apply that analysis to the Louisiana statute, Section 40:966(A).
As we just explained, before Barlow’s prior convictions qualify under
Section 924(e)(2)(A)(ii), the state statute on which those convictions were
based must criminalize the conduct of “manufacturing, distributing, or
possessing with intent to manufacture or distribute” a controlled substance.
Shular, 140 S. Ct. at 784. What we know about the prior convictions comes
from the presentence report (“PSR”) and Barlow’s briefing. The PSR gives,
among other details, the dates and sentences of each qualifying offense, and
describes them (without references to any state statute) as “Possession with
Intent to Distribute Marijuana” in 2004, “Possession with Intent to
Case: 18-30994 Document: 00516085309 Page: 6 Date Filed: 11/08/2021
No. 18-30994
7
Distribute/Manufacture a Controlled Dangerous Substance – Schedule I” in
2005, and “Possession with Intent to Distribute Marijuana” in 2005.
Barlow’s briefing acknowledges that Section 40:966(A) was the basis for all
the convictions. Though generally we would be provided the actual court
records, we have sufficient information because Barlow has identified the
relevant statute.
At the time that Barlow was charged with his state offenses, the
Louisiana statute provided that it was “unlawful for any person knowingly or
intentionally: (1) To produce, manufacture, distribute or dispense or possess
with intent to produce, manufacture, distribute, or dispense, a controlled
dangerous substance or controlled substance analogue classified in Schedule
I.” La. R.S. § 40:966(A) (2004). The referenced Schedule I contained a list
of various controlled substances, including marijuana. La. R.S. § 40:964
(2004). Thus, the same conduct which is necessary for a “serious drug
offense” under the ACCA was the conduct criminalized by Section
40:966(A). See § 924(e)(2)(A)(ii).
Before we can conclude that the ACCA applies, though, we must also
determine if the convictions were punishable by a “maximum term of
imprisonment of ten years of more.” § 924(e)(2)(A)(ii). Section 40:966
provided for three different sentencing ranges, depending on the controlled
substance that a defendant was found to possess with intent to distribute.
Any Schedule I substance classified as a “narcotic” would subject a
defendant to “imprisonment for not less than five nor more than fifty
years . . . at least five years of which [would] be served without benefit of
probation, or suspension of [their] sentence.” La. R.S. § 40:966(B)(1)
(2004). “[A]ny other controlled dangerous substance classified in Schedule
I,” with the exception of marijuana, would subject a defendant to
“imprisonment . . . for not less than five years nor more than thirty years, at
least five years of which shall be served without benefit of parole, probation,
Case: 18-30994 Document: 00516085309 Page: 7 Date Filed: 11/08/2021
No. 18-30994
8
or suspension of sentence.” La. R.S. § 40:966(B)(2) (2004). Lastly, a
marijuana-related conviction for possession with intent to distribute was
punishable by “imprisonment . . . for not less than five nor more than thirty
years.” La. R.S. § 40:966(B)(3) (2004). Thus, each of Barlow’s convictions
was punishable by a sentence of ten years or more. See § 924(e)(2)(A)(ii).

Outcome: We hold that Barlow’s convictions under Section 40:966(A) for
“possession with intent to distribute” are “serious drug offenses” for the
purpose of sentence enhancement under the ACCA. As the Supreme Court
indicated in Shular, this result follows from the unambiguous language of this
subsection of the ACCA.
AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: