In Re: Andreco Lott, No. 16-10866 (5th Cir. 2016)

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Movant was convicted of one count of conspiring to commit bank robbery, two counts of bank robbery and aiding and abetting, two counts of conspiring to obstruct interstate commerce by robbery and aiding and abetting, and four counts of using and carrying a firearm during a crime of violence and aiding and abetting. Movant seeks authorization to file a successive 28 U.S.C. 2255 motion challenging his convictions under 18 U.S.C. 924(c) for using and carrying a firearm during a crime of violence and aiding and abetting, as well as his convictions for bank robbery and conspiring to obstruct interstate commerce by robbery and aiding and abetting. The court concluded that movant has failed to make the requisite showing where Johnson v. United States does not provide a basis for authorizing a successive section 2255 motion challenging a conviction under section 924(c); the bank robbery and conspiracy to obstruct interstate commerce by robbery statutes that movant was convicted under do not contain language similar to the provision that the Supreme Court found unconstitutionally vague in Johnson; and movant failed to make a prima facie showing that Mathis v. United States and McDonnell v. United States set forth new rules of constitutional law that have been made retroactive to cases on collateral review. Accordingly, the court denied the motion for authorization and the motion to hold his case in abeyance.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10866 United States Court of Appeals Fifth Circuit FILED In re: ANDRECO LOTT, September 26, 2016 Movant Lyle W. Cayce Clerk Motion for an order authorizing the United States District Court for the Northern District of Texas, Fort Worth to consider a successive 28 U.S.C. § 2255 motion Before SMITH, ELROD, and HAYNES, Circuit Judges. PER CURIAM: A jury convicted Andreco Lott, federal prisoner # 27068-177, of one count of conspiring to commit bank robbery, two counts of bank robbery and aiding and abetting, two counts of conspiring to obstruct interstate commerce by robbery and aiding and abetting, and four counts of using and carrying a firearm during a crime of violence and aiding and abetting. He now moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his convictions under 18 U.S.C. § 924(c) for using and carrying a firearm during a crime of violence and aiding and abetting as well as his convictions for bank robbery and conspiring to obstruct interstate commerce by robbery and aiding and abetting. See 28 U.S.C. §§ 2244(b)(3)(C), 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir. 2001). Invoking Johnson v. United States, 135 S. Ct. 2551 (2015), Lott argues that these convictions are invalid. He also argues that his firearms and bank robbery convictions are invalid in No. 16-10866 light of the Supreme Court’s recent decisions in Mathis v. United States, 136 S. Ct. 2243 (2016), and McDonnell v. United States, 136 S. Ct. 2355 (2016). Lott has not made the requisite showing. We have held that Johnson does not provide a basis for authorizing a successive § 2255 motion challenging a conviction under § 924(c). See In re Fields, 826 F.3d 785, 786-87 (5th Cir. 2016). Moreover, the bank robbery and conspiracy to obstruct interstate commerce by robbery statutes that Lott was convicted under do not contain language similar to the provision that the Supreme Court found unconstitutionally vague in Johnson, compare Johnson, 135 S. Ct. at 2555-57, with 18 U.S.C. § 2113(a) (bank robbery), and 18 U.S.C. § 1951 (conspiracy to obstruct interstate commerce by robbery), and so Johnson has no bearing on them. Finally, Lott has failed to make a prima facie showing that Mathis and McDonnell set forth new rules of constitutional law that have been made retroactive to cases on collateral review. See § 2255(h)(2); § 2244(b)(3)(C); Reyes-Requena, 243 F.3d at 897-99. Accordingly, IT IS ORDERED that Lott’s motion for authorization is DENIED. IT IS FURTHER ORDERED that Lott’s motion to hold his case in abeyance in light of the Supreme Court’s grant of certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016), is DENIED. 2

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