USA v. Kendall, No. 18-60661 (5th Cir. 2021)
Annotate this Case
Download PDF
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 Summary Calendar Lyle W. Cayce 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 * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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 appealability 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 threatened use of physical force.” Accordingly, it follows that Kendall’s first-degree 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. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
