United States v. Clark

Case: 21-11099 Document: 00516429382 Page: 1 Date Filed: 08/11/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 11, 2022 No. 21-11099 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Terrell M. Clark, Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19-CV-1071

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:* Terrell M. Clark pleaded guilty to theft of firearms from a licensed firearms dealer in violation of 18 U.S.C. § 924(m) and brandishing a firearm during a crime of violence in relation to 18 U.S.C. § 924(c)(1)(A)(ii).

Following the Supreme Court’s decision in United States v. Davis, 139 S. Ct.

Case: 21-11099 Document: 00516429382 Page: 2 Date Filed: 08/11/2022

No. 21-11099

2319 (2019), we vacated Clark’s §924(c) conviction as his underlying firearm theft was no longer deemed to be a crime of violence.

Clark moved for a certificate of innocence under 28 U.S.C. § 2513, which would enable him to bring a claim for damages for unjust conviction and imprisonment in the United States Court of Federal Claims under 28 U.S.C. § 1495. The district court denied his motion.

Clark is not entitled to a certificate of innocence because he cannot meet the requirements of § 2513(a)(2), which requires that Clark prove that he did not commit any of the acts charged or that none of his acts constituted an offense against the United States. Although his § 924(c) conviction was vacated, Clark’s § 924(m) conviction remains. Thus, his acts constituted an offense against the United States, barring him from obtaining a certificate of innocence. See Osborn v. United States, 322 F.2d 835, 841–43 (5th Cir. 1963).

The order of the district court, denying the motion for a certificate of innocence, is AFFIRMED.