United States District Court, N.D. Texas, Dallas Division
KARLOS MARSHALL, (BOP Registration No. 42105-177), Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
KINKEADE, UNITED STATES DISTRICT JUDGE.
Karlos Marshall, a federal prisoner, has filed a 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his
federal sentence. See Dkt. No. 2. The Court
DENIES the motion as meritless.
found Marshall guilty of being a felon in possession of a
firearm. See United States v. Marshall,
3:10-cr-158-K (01), Dkt. No. 44. Because Marshall had two
prior felony convictions for controlled substance offenses,
and one prior violent felony conviction, he was sentenced
under the Armed Career Criminal provisions of 18 U.S.C.
§ 924(e) and U.S.S.G. § 4B1.4 to 180 months in
prison. See United States v. Marshall, 3:10-cr-158-K
(01), Dkt. No. 59. His conviction and sentence were affirmed
on direct appeal. See United States v. Marshall, 487
F. App'x 895 (5th Cir. 2012).
argues that his sentence must be overturned in the wake of
Johnson v. United States, 135 S.Ct. 2551 (2015)
because his Texas conviction for aggravated assault, in
violation of Tex. Penal Code § 22.01 § 22.02(a), is
no longer a “violent felony” under the definition
codified in 18 U.S.C. § 924(e)(2)(B). See Dkt
No. 2 at 7.
Supreme Court of the United States recounted in
Federal law forbids certain people-such as convicted felons,
persons committed to mental institutions, and drug users-to
ship, possess, and receive firearms. § 922(g). In
general, the law punishes violation of this ban by up to 10
years' imprisonment. § 924(a)(2). But if the
violator has three or more earlier convictions for a
“serious drug offense” or a “violent
felony, ” [Section 924] increases his prison term to a
minimum of 15 years and a maximum of life. § 924(e)(1);
Curtis Johnson v. United States, 559 U.S. 133, 136
(2010). The Act defines “violent felony” as
“any crime punishable by imprisonment for a term
exceeding one year . . . that -
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to
another.” § 924(e)(2)(B) (emphasis added).
The closing words of this definition, italicized above, have
come to be known as the Act's residual clause.
135 S.Ct. at 2555-56 (citation modified).
Johnson, the Supreme Court struck down the residual
clause, holding “that imposing an increased sentence
under the residual clause of the Armed Career Criminal Act
violates the Constitution's guarantee of due
process.” Id. at 2563. But Johnson
did “not call into question application of the Act to
the four enumerated offenses, or the remainder of the
Act's definition of a violent felony.” Id.
at 2563. So, after Johnson, “[a] violent
felony is one of a number of enumerated offenses or a felony
that ‘has an element the use, attempted use, or
threatened use of physical force against the ...