United States of America v. Travis Trumane Barlow

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

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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

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(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.

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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.

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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

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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,

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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).

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.