United States v. Donald Givens

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-50027
Summary Calendar

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 8, 2020

Lyle W. Cayce
Clerk
Case: 18-50027 Document: 00515262705 Page: 1 Date Filed: 01/08/2020

No. 18-50027
2
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.

Case: 18-50027 Document: 00515262705 Page: 2 Date Filed: 01/08/2020