Powell v. USA

I N THE UNITED STATES DISTRICT C OURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JEREMY GLENN POWELL 	§
ID #38703-177, 	§
Movant, 	§
§
V. 	§ 	NO. 3:25-CV-0781-D
§ 	NO. 3:17-CR-0511-D-1)
UNITED STATES OF AMERICA 	§
Respondent. 	§
MEMORANDUM OPINION AND ORDER
This matter is before the court on movant Jeremy Glenn Powell’s (“Powell’s”) motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The issues have been fully briefed,
and the matter is now ripe for ruling. For the following reasons, the court grants Powell’s
§ 2255 motion.
I
In 2018 Powell pleaded guilty to one count of felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(c). The appropriate sentencing range turned on whether Powell
had three prior violent felony convictions. If he did, he faced a minimum fifteen-year term of
imprisonment under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). That issue
depended on whether Powell’s prior Texas robberies—two of which were robbery-by-injury and
two of which were robbery-by-threat—were violent felony convictions under the ACCA.
The court initially determined that the ACCA did not apply, but the Fifth Circuit vacated
that decision after concluding that Texas robbery is categorically a violent felony under the
ACCA’s elements clause. United States v. Powell, 785 Fed. Appx. 227 (5th Cir. 2019) (per
curiam). Before Powell was resentenced, however, the Supreme Court held that a criminal offense
does not qualify as a violent felony under the elements clause of the ACCA if it can be committed
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with a mens rea of recklessness, which the Texas robbery statute allows in the case of a robbery-
by-injury. Borden v. United States, 593 U.S. 420, 423 (2021) (plurality opinion). In light
of Borden, the Supreme Court vacated Powell’s judgment and remanded the case to the Fifth
Circuit. Powell v. United States, ___ U.S. ___, 141 S. Ct. 2780, 2781 (2021). While that appeal
was pending, the Fifth Circuit held in United States v. Garrett, 24 F.4th 485 (5th Cir. 2022), that
the Texas robbery statute is divisible into two crimes—robbery-by-injury and robbery-by-threat—
and that robbery-by-threat qualifies as a violent felony under the elements clause. Id. at 491. In
light of Garrett, and concluding that Powell’s two robbery-by-threat convictions were violent
felonies under the ACCA, the Fifth Circuit remanded Powell’s case to this court for resentencing
under ACCA. United States v. Powell, 2022 WL 413943, at *1-2 (5th Cir. Feb. 10, 2022) (per
curiam).
On remand, this court resentenced Powell to 189 months’ imprisonment and three years of
supervised release. Powell appealed, but the Fifth Circuit upheld the judgment, and the Supreme
Court denied certiorari. United States v. Powell, 78 F.4th 203, 209-10 (5th Cir. 2023); Powell v.
United States, ––– U.S. ––––, 144 S. Ct. 1128 (2024).
On November 13, 2024 the Texas Court of Criminal Appeals held that Texas robbery is a
single offense. See Floyd v. State, ___ S.W.3d ___, 2024 WL 4757855, at *1 (Tex. Crim. App.
Nov. 13, 2024). And the Fifth Circuit recently held that Floyd “unequivocally abrogated” United
States v. Garrett. See United States v. Rose, 127 F.4th 619, 620 (5th Cir. 2025) (per curiam).
Based on these developments, Powell filed the present motion. He argues that Texas
robbery no longer qualifies as an ACCA predicate in any form, so his current ACCA sentence
exceeds the maximum sentence authorized by law.
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On April 1, 2025 the court ordered the government to file an answer or response to Powell’s
motion. In its response, the government agrees that Powell “is entitled to resentencing to a non-
ACCA sentence” and asks that the court “grant Powell’s 2255 motion and resentence him to a term
no longer than ten years’ imprisonment.” ECF No. 5 at 4.
II
There is no dispute that Powell’s prior robbery conviction, although considered a violent
felony under the ACCA at the time of resentencing, no longer qualifies as an ACCA predicate. See
id. 	Because without the robbery conviction Powell no longer has three qualifying convictions
under the ACCA, his current sentence exceeds the maximum sentence authorized by law.
Accordingly, the motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is
granted, the judgment is vacated, and it is ordered that Powell be resentenced without the ACCA
enhancement.
SO ORDERED.
January 13, 2026.
___________________________
SIDNEY A. FITZWATER
SENIOR JUDGE
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