United States v. Donald Givens

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 8, 2020
• Docket: 18-50027
• Status: Unpublished

Opinion

Case: 18-50027 Document: 00515262705 Page: 1 Date Filed: 01/08/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED January 8, 2020 No. 18-50027 Lyle W. Cayce Summary Calendar Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD LYNN GIVENS,

Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:16-CV-515 USDC No. 1:01-CR-212-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Donald Lynn Givens, federal prisoner # 28525-180, appeals the denial of his 28 U.S.C. § 2255 motion as untimely. His § 2255 motion challenged his sentence for bank robbery with the use of a dangerous weapon. We granted a certificate of appealability. Relying on Johnson v. United States, 135 S. Ct. 2551, 2557, 2563 (2015), Givens argues that his Texas burglary convictions did

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-50027 Document: 00515262705 Page: 2 Date Filed: 01/08/2020

No. 18-50027

not implicate career-offender classification under U.S.S.G. § 4B1.1 for the purposes of the mandatory Guidelines prior to United States v. Booker, 543 U.S. 220, 245 (2005). Givens contends that Johnson renders his pre-Booker sentence unconstitutionally vague and that he timely filed his § 2255 motion within one year of Johnson. Givens, however, has not asserted a right dictated by Johnson and therefore he is not entitled to a new period of limitations under § 2255(f)(3). United States v. London, 937 F.3d 502, 507-09 (5th Cir. 2019). Accordingly, his § 2255 motion was not timely. Id. We AFFIRM the judgment of the district court.