United States v. Kendall

U
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
                                                                            Fifth Circuit

                                                                          FILED
                                                                   February 11, 2021
                                   No. 18-60661                      Lyle W. Cayce
                                 Summary Calendar                         Clerk


   United States of America,

                                                                Plaintiff—Appellee,

                                        versus

   Michael Robbie Kendall,

                                                            Defendant—Appellant.


                   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.
   Per Curiam:*
          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   opinion should not be published and is not precedent except under the limited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




                                     No. 18-60661


   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.
   Davis, 

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.
   denied, 

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 §
   924(c)(3)(A). See

id. at 596.

          Accordingly, the judgment of the district court is AFFIRMED.




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