Case: 18-60661 Document: 00515741838 Page: 1 Date Filed: 02/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
February 11, 2021
No. 18-60661 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Michael Robbie Kendall,
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:18-CV-105
Before Weiner, Southwick, and Duncan, Circuit Judges.
Michael Robbie Kendall, federal prisoner # 11097-042, was convicted
of (1) first-degree murder within a special territorial jurisdiction of the United
States, in violation of 18 U.S.C. §§ 7 and 1111, and (2) use of a firearm in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and (j)(1).
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opinion should not be published and is not precedent except under the limited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: 18-60661 Document: 00515741838 Page: 2 Date Filed: 02/11/2021
He filed a 28 U.S.C. § 2255 motion, which the district court dismissed as
time barred and alternatively denied on the merits.
On appeal, Kendall asserts that his § 2255 motion was timely under
28 U.S.C. § 2255(f)(3) based on the Supreme Court deciding United States v.
139 S. Ct. 2319
(2019), while his motion for a certificate of appealabil-
ity was pending. He also asserts that his conviction and sentence under §
924(c) are unconstitutional in light of Davis because the predicate offense of
first-degree murder, in violation of § 1111, no longer qualifies as a crime of
violence under § 924(c)(3).
We need not reach the timeliness issue because Kendall is not entitled
to relief on the merits. In United States v. Smith,
957 F.3d 590
(5th Cir.), cert.
2020 WL 6551848
(U.S. Nov. 9, 2020) (No. 20-5871), we concluded
that “attempted murder invariably requires the actual, attempted, or threat-
ened use of physical force.” Accordingly, it follows that Kendall’s first-de-
gree murder conviction necessarily qualifies as a crime of violence under §
id. at 596.
Accordingly, the judgment of the district court is AFFIRMED.