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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13477
Non-Argument Calendar
________________________
D.C. Docket Nos. 2:12-cv-08026-IPJ-JHE,
2:10-cr-00107-IPJ-RRA-1
COURTNEY MAYS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 29, 2016)
Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Courtney Mays appeals the district court’s denial of his first and only 28
U.S.C. § 2255 motion to vacate his sentence. Mays was convicted of two counts of
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being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He
was then sentenced pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career
Criminal Act (ACCA). Relying on Descamps v. United States, 570 U.S. __, 133 S.
Ct. 2276 (2013), and Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551
(2015), Mays asserts his sentence under § 924(e)(1) is illegal. Specifically, he
argues that, in light of Descamps and Johnson, he does not have the number of
qualifying prior convictions required to trigger a § 924(e)(1) sentence and,
therefore, his sentence under the section is unlawful. We agree and find that
Mays’s sentence is illegal. Although Descamps and Johnson were decided after
Mays’s conviction and sentence became final, we hold that both cases apply
retroactively in the first post-conviction context. Accordingly, we reverse the
district court’s denial of Mays’s motion and remand for resentencing.
I. SENTENCING UNDER THE ACCA
To provide the legal context for Mays’s appeal, we begin with a
brief discussion of Descamps, Johnson, and the relevant portions of § 924(e).
Under § 924(e)(1), “a person who violates 18 U.S.C. § 922(g) and has three
previous convictions for a violent felony or a serious drug offense is subject to
additional fines and a fifteen-year minimum sentence (and has an enhanced
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guidelines sentence under U.S.S.G. § 4B1.4).”1 United States v. Petite, 703 F.3d
1290, 1293 (11th Cir. 2013) (internal quotation marks omitted); see also 18 U.S.C.
§ 924(e)(1). The ACCA defines a violent felony as “any crime punishable by
imprisonment for a term exceeding one year” that: (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another”;
(2) “is burglary, arson, or extortion [or] involves use of explosives”; or (3)
“otherwise involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B). These three “clauses” are known as the
“elements clause,” the “enumerated clause,” and the “residual clause,”
respectively.
The Court in Descamps addressed our approach to determining whether a
crime constitutes a violent felony under the enumerated clause. The enumerated
clause only includes prior convictions for “generic” versions of the offenses it lists.
See Descamps, 133 S. Ct. at 2281. There are two approaches for determining
whether an offense is generic: the “categorical approach” and the “modified
categorical approach.” See id. Under the categorical approach, we “compare the
elements of the statute forming the basis of the defendant’s conviction with the
elements of the generic crime.” Id. (internal quotation marks omitted). “The prior
conviction qualifies as an ACCA predicate only if the statute’s elements are the
1
“Violent felonies” and “serious drug offenses,” as defined by the ACCA, are referred to
as “ACCA predicates.”
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same as, or narrower than, those of the generic offense.” Id. In contrast, under the
modified categorical approach, we may look beyond the statutory elements of the
prior conviction and consider a “limited class of documents, such as indictments
and jury instructions,” to determine whether the conviction was for a generic
offense. See id. In Descamps, the Supreme Court held that this analysis can only
be performed if the statute in question is “divisible,” meaning that it “sets out one
or more elements of the offense in the alternative.” See id. at 2281–82.
In Johnson, the Supreme Court considered a constitutional challenge to the
residual cause and determined that the clause is unconstitutionally vague. Johnson,
135 S. Ct. at 2557. As such, a defendant cannot be sentenced pursuant to §
924(e)(1) unless he has at least three prior convictions that each meet the criteria of
either the elements clause or the enumerated clause. See id. at 2563.
II. BACKGROUND
Mays was sentenced to two concurrent terms of 15 years’ imprisonment
pursuant to § 924(e)(1). The sentencing court imposed a § 924(e)(1) sentence
based on two prior convictions for possession of marijuana for other than personal
use under Alabama Code § 13A-12-213(a)(1) and one prior conviction for third
degree burglary under Alabama Code § 13A-7-7. The marijuana convictions were
found to be serious drug offenses and the burglary conviction was determined to be
a violent felony.
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In July 2012, Mays filed a pro se § 2255 motion for habeas relief, arguing
that he received ineffective assistance of counsel during his direct appeal. Soon
thereafter, the Supreme Court decided Descamps. In August 2013, Mays filed a
notice with the district court alleging he was wrongfully sentenced pursuant to §
924(e)(1). Specifically, he asserted that, under Descamps, his burglary conviction
was not a violent felony. He also generally claimed that his sentence is illegal
because he does not have at least three prior qualifying convictions under §
924(e)(1).2 The Government responded that Mays was procedurally barred from
making such an argument by § 2255’s period of limitations. See 28 U.S.C. §
2255(f)(3). The Government also argued that Mays’s burglary conviction is a
violent felony under the residual clause and, therefore, Descamps—which had no
effect on the residual clause—did not render Mays’s sentence illegal.
The district court accepted the Government’s period of limitations defense
and dismissed Mays’s challenge to his sentence as time-barred. The court also
denied Mays’s ineffective assistance of counsel claim. This court granted a
certificate of appealability (COA) on three issues: (1) whether the district court
erred by denying Mays’s ineffective assistance of counsel claim; (2) whether the
district court erred in dismissing Mays’s claim that his sentence is illegal under
2
Given Mays’s motion to vacate and supplemental notice were filed pro se, we construe
them liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (per
curiam).
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Descamps; and (3) whether the district court abused its discretion by denying
Mays’s motion to reconsider.
Mays was appointed counsel prior to filing his brief on appeal. A few
months after Mays submitted his brief, the Supreme Court decided Johnson, which
prompted him to file a notice of supplemental authority. In the notice, Mays
stated, inter alia, that Johnson disposed of the Government’s argument that his
burglary conviction is a violent felony under the residual clause. Following this
notice, the Government and Mays submitted a joint motion for resentencing. In the
motion, the Government agreed to withdraw its period of limitations defense
against Mays’s challenge to his sentence, and Mays agreed to dismiss his
ineffective assistance of counsel claim. The Government also conceded that, in
light of Johnson, it believes Mays’s sentence under § 924(e)(1) is unlawful.
After receiving Mays’s notice of supplemental authority and the parties’
joint motion for resentencing, we requested supplemental briefing on several issues
related to Johnson’s application to this case. In its responding supplemental
briefing, the Government stated that it is waiving non-retroactivity as a defense to
Mays’s Descamps and Johnson arguments. The Government also reiterated its
withdrawal of its period of limitations defense to Mays’s challenge to his sentence.
III. DISCUSSION
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The dispositive issue before us is whether Mays’s § 924(e)(1) sentence is
unlawful. This issue turns on two questions of law: whether (1) Descamps and (2)
Johnson apply retroactively to Mays despite being decided after his conviction and
sentence became final. If both Descamps and Johnson apply retroactively to
Mays—a first time habeas petitioner—then his burglary conviction is not a
qualifying conviction under § 924(e)(1), and his sentence is illegal because he does
not have at least three qualifying convictions. Accordingly, in considering the
legality of Mays’s sentence, we focus our analysis on resolving these Descamps
and Johnson “retroactivity” questions. However, we first briefly discuss a
threshold procedural issue: the scope of the COA.
A. Scope of the COA
All three issues included in the COA are now moot. Mays has withdrawn
his ineffective assistance of counsel claim, thereby mooting the first COA issue.
Furthermore, the “time-barred” issue that the district court relied on in denying
Mays’s challenge to his sentence is moot because the Government has waived its
period of limitations defense. See Bryant v. Warden, FCC Coleman-Medium, 738
F.3d 1253, 1261 (11th Cir. 2013) (“[T]he procedural-default rule is not
jurisdictional [in the post-conviction context], but is an affirmative defense that is
subject to waiver by the government.”). Therefore, the second and third COA
issues are also moot. Nonetheless, as noted above, the core issue raised by Mays
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before the district court—whether his sentence is legal—remains. Given this issue
is not included in the COA, we must consider whether the circumstances warrant
expanding the COA to include it.
We find that expansion of the COA is clearly warranted. “On exceptional
occasions,” we may expand a COA sua sponte to include issues that “reasonable
jurists would find . . . debatable.” See Dell v. United States, 710 F.3d 1267, 1272–
73 (11th Cir. 2013); Thomas v. Crosby, 371 F.3d 782, 796 (11th Cir. 2014) (“[O]ur
cases establish the power of our court to add issues to a COA sua sponte.”);
Hodges v. Att’y Gen., 506 F.3d 1337, 1341–42 (11th Cir. 2007). “Exceptional
occasions” include cases where we request supplemental briefing on issues not
included in the COA. See Dell, 710 F.3d at 1272–73. Here, we requested
supplemental briefing on issues related to the legality of Mays’s sentence. In
addition, as made apparent by the Government conceding that it believes Mays’s
sentence is illegal, this issue is one “that reasonable jurists would find . . .
debatable.” See id. at 1273. Lastly, if we did not expand the COA, remand to the
district court would be necessary. But, whether Mays’s sentence is illegal involves
purely legal questions that would not benefit from remand. See Reed v. Beto, 343
F.2d 723, 725 (5th Cir. 1965) (“Passing then to the merits of this argument, in view
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of its being a pure question of law, we see no need to remand it for a determination
by the District Court.”). 3
B. Legality of Mays’s Sentence
Mays’s challenge to his sentence turns on whether his Alabama Code § 13A-
7-7 conviction for third degree burglary is a violent felony. 4 We review de novo
whether that burglary conviction qualifies as a violent felony. See United States v.
Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). The only ACCA clauses that
could apply to the conviction are the enumerated and residual clauses.5 However,
we conclude that, in light of Descamps and Johnson, neither clause applies to
Mays.
1. Enumerated Clause
At the time Mays was sentenced, an Alabama Code § 13A-7-7 third degree
burglary conviction could qualify as a violent felony under the enumerated clause.
See United States v. Rainer, 616 F.3d 1212, 1213, 1216 (11th Cir. 2010). Post-
Descamps, this is no longer the case. Based on Descamps, we held in Howard that
3
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions of the “old Fifth” Circuit handed down prior to the close of business
on September 30, 1981 are binding precedent in the Eleventh Circuit).
4
There is no dispute that Mays’s two convictions under Alabama Code § 13A-12-
213(a)(1) qualify as serious drug offenses under § 924(e)(1). See United States v. Mays (Mays
I), 300 F. App’x 735, 737 (11th Cir. 2008) (per curiam).
5
The elements clause clearly is inapplicable. Alabama Code § 13A-7-7 provides “[a]
person commits the crime of burglary in the third degree if he knowingly enters or remains
unlawfully in a building with intent to commit a crime therein.” As such, third degree burglary
in Alabama does not have “as an element the use, attempted use, or threatened use of physical
force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i).
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a conviction for third degree burglary cannot qualify as a violent felony under the
enumerated clause because Alabama Code § 13A-7-7 is an indivisible, non-generic
statute. Howard, 742 F.3d at 1348–49. Thus, if Mays was sentenced today, the
enumerated clause would not apply to his burglary conviction. But, given that
Mays’s conviction and sentence became final prior to Descamps, our analysis does
not end here. We must consider whether Descamps and Howard apply
retroactively to Mays. This requires us to analyze Descamps through the
“retroactivity” framework set forth in Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060 (1989) and related Supreme Court cases.
In Teague and subsequent cases, the Supreme Court “laid out the framework
to be used in determining whether a rule announced in one of [its] opinions should
be applied retroactively to judgments in criminal cases that are already final.” 6
Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007). “Under the
Teague framework, an old rule applies both on direct and collateral review, but a
new rule is generally applicable only to cases that are still on direct review.” Id.
6
In its supplemental briefing, the Government states that it “waives any non-retroactivity
defense that would bar the application of Descamps to the merits of Mays’[s] claim.” Based on
this waiver, the Government asserts that we need not consider whether Descamps triggers a
“retroactivity” analysis under Teague. The Government takes a similar position with Johnson.
However, “Teague analysis is ordinarily our first step when we review a federal habeas case,”
and we have discretion to perform such analysis even where the Government completely fails to
raise a Teague argument. See Schiro v. Farley, 510 U.S. 222, 228–29, 114 S. Ct. 783, 788–89
(1994); Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 953 (1994) (“[A] federal court
may, but need not, decline to apply Teague if the [Government] does not argue it.”).
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“A new rule is defined as a rule that was not dictated by precedent existing at the
time the defendant’s conviction became final.” Id. at 416, 127 S. Ct. at 1181
(internal quotation marks omitted). As the Supreme Court and other circuits have
recognized, Descamps did not announce a new rule—its holding merely clarified
existing precedent. See Descamps, 133 S. Ct. at 2283 (“Our caselaw explaining
the categorical approach and its ‘modified’ counterpart all but resolves this case.”);
id. at 2285 (“That is the job, as we have always understood it, of the modified
approach . . . .” (emphasis added)); Ezell v. United States, 778 F.3d 762, 763 (9th
Cir. 2015) (“We hold that the Supreme Court did not announce a new rule of
constitutional law in Decamps. Rather, it clarified—as a matter of statutory
interpretation—application of the ACCA in light of existing precedent.”), cert.
denied, 136 S. Ct. 256 (2015); United States v. Davis, 751 F.3d 769, 775 (6th Cir.
2014) (“The Supreme Court in Descamps explained that it was not announcing a
new rule, but was simply reaffirming” an existing approach.).
Given Descamps did not announce a new rule, it and Howard apply here.
See Whorton, 549 U.S. at 416, 127 S. Ct. at 1180. Under Descamps and Howard,
third degree burglary convictions in Alabama cannot qualify as violent felonies
under the enumerated clause. Accordingly, the enumerated clause does not apply
to Mays’s burglary conviction.
2. Residual Clause
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Although we conclude that the enumerated clause does not apply, Mays’s
sentence could still be upheld if the residual clause is applicable. It is clear that the
residual clause is unconstitutional under Johnson, but Johnson was also decided
after Mays’s conviction and sentence became final. Thus, as with Descamps, the
dispositive “residual clause” question before us is whether Johnson applies
retroactively in the present context. 7 This means we must again turn to Teague.8
As noted above, under Teague, new rules are not typically applicable to
cases on collateral review. Whorton, 549 U.S. at 416, 127 S. Ct. at 1180.
However, the Supreme Court has established a general principle that new
substantive rules and watershed rules of criminal procedure are not subject to this
retroactivity bar. See Montgomery v. Louisiana, 577 U.S. __, __, 136 S. Ct. 718,
728 (2016); Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522
(2004); Teague, 489 U.S. at 307–09, 109 S. Ct. at 1073–74. New substantive rules
include, for example, “decisions that narrow the scope of a criminal statute by
interpreting its terms” and “constitutional determinations that place particular
7
Under our precedent prior to Johnson, burglary convictions similar to Mays’s qualified
as violent felonies under the residual clause. See United States v. Matthews, 466 F.3d 1271,
1275–76 (11th Cir. 2006). Therefore, if Johnson does not apply to Mays retroactively, his
sentence could be upheld through the residual clause.
8
As an initial matter, the Government contends that we may not consider Johnson
because Mays did not specifically raise any residual clause claims before the district court.
However, based on the record before us—including the supplemental briefing we requested on
Johnson—we disagree.
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conduct or persons covered by the statute beyond the State’s power to punish.”9
See Schriro, 542 U.S. at 351–52, 124 S. Ct. at 2522. “Such rules apply
retroactively because they necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make criminal or faces a
punishment that the law cannot impose upon him.” Id. at 352, 124 S. Ct. at 2522–
23 (internal quotation marks omitted). Under this framework, a new rule applies
retroactively if: (1) the Supreme Court holds the rule is not subject to the Teague
retroactivity bar; or (2) the Teague principles of retroactivity established by the
Court, such as those outlined above, provide for retroactive application of the rule.
See Tyler v. Cain, 533 U.S. 656, 663–66, 121 S. Ct. 2478, 2482–84 (2001); Bryant,
738 F.3d at 1277–78 (finding a new rule retroactive based on the Teague principles
of retroactivity but noting that, in the § 2255(h) context, only the Supreme Court
can find a rule retroactive).
In In re Rivero, we held that Johnson established a new substantive rule.
797 F.3d 986, 989 (11th Cir. 2015). Specifically, we found that Johnson
“narrowed the class of people who are eligible for an increased sentence under the”
9
Although the latter type of substantive rule is often characterized as a Teague exception,
the Schriro Court clarified that such a rule simply is not subject to the Teague retroactivity bar.
542 U.S. at 352, 124 S. Ct. at 2522 n.4. Indeed, the principle that this type of substantive rule
applies retroactively is independent of Teague—it arises from the Constitution. See
Montgomery, 136 S. Ct. at 729; Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J.,
concurring in part and dissenting in part) (providing the foundation for Teague, Justice Harlan
stated, “new ‘substantive due process’ rules, that is, those that place, as a matter of constitutional
interpretation, certain kinds of primary, private individual conduct beyond the power of criminal
law-making authority to proscribe, must, in my view, be placed on a different footing”).
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ACCA. Id. In that case, we considered a federal prisoner’s application to file a
second or successive habeas petition. Such an application may only be granted if it
involves newly discovered evidence or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.”10 28 U.S.C. § 2255(h) (emphasis added). The prisoner in Rivero
claimed Johnson satisfied the “new rule of constitutional law” requirement.
A new rule is only made retroactive by the Supreme Court if the Court
explicitly holds that the rule applies retroactively or such a holding results by
“logical necessity” from multiple Court opinions. Tyler, 533 U.S. at 668–70, 121
S. Ct. at 2485–86. “The Supreme Court does not make a rule retroactive when it
merely establishes principles of retroactivity[, such as the Teague principles,] and
leaves the application of those principles to lower courts.” See id. at 663, 121 S.
Ct. at 2482 (internal quotation marks omitted). In Rivero, we concluded that the
Supreme Court has not explicitly held Johnson to be retroactive and “[n]o
combination of holdings of the Supreme Court ‘necessarily dictate’ that Johnson
should be applied retroactively on collateral review.” 797 F.3d at 989.
Accordingly, we rejected the prisoner’s argument that Johnson was “made
retroactive . . . by the Supreme Court,” and we found that the prisoner failed to
satisfy § 2255(h). See id. (internal quotation marks omitted).
10
Section 2244(b)(2), which applies to state prisoners bringing a second or successive
habeas petition, includes similar language. See 18 U.S.C. § 2244(b)(2).
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In contrast to Rivero, we are presented here with a prisoner’s first habeas
petition, not an application for a second or successive petition. As such, § 2255(h)
and its “made retroactive . . . by the Supreme Court” requirement are not
applicable. This means we must engage in a broader retroactivity analysis than we
did in Rivero. In other words, Rivero is not controlling here. As noted above, the
retroactivity analysis demanded by 28 U.S.C. § 2255(h) is narrow—it is limited to
whether the Supreme Court has explicitly, or by logical necessity, made a rule
retroactive. See Bryant, 738 F.3d at 1278 (stating that the Supreme Court’s general
retroactivity jurisprudence “is quite different from the stricter, statutory
retroactivity requirements in 28 U.S.C. § 2255(h)”). Given that “the Supreme
Court does not make a rule retroactive when it merely establishes principles of
retroactivity and leaves the application of those principles to lower courts,” a §
2255(h) analysis does not address such principles. See Tyler, 533 U.S. at 663, 121
S. Ct. at 2482 (emphasis added); Bryant, 738 F.3d at 1278. However, we may not
ignore Supreme Court precedent regarding principles of retroactivity, such as the
Teague principles, when § 2255(h) is not implicated.
Applying the Teague principles, Johnson is retroactive because it qualifies
as a substantive rule.11 First, we have already found that Johnson is a new
substantive rule since it narrows the class of people that may be eligible for a
11
Notably, in its supplemental briefing, the Government stated that it believes Johnson
applies retroactively and that Mays is therefore entitled to relief.
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heightened sentence under the ACCA. See Rivero, 797 F.3d at 989. Second, “a
significant risk exists that some defendants . . . who were sentenced before
[Johnson] have erroneously received the increased penalties under § 924(e) and
now are serving prison terms . . . that the law cannot impose upon them.” See
Bryant, 738 F.3d at 1278 (citing Schriro, 542 U.S. at 352, 124 S. Ct. at 2522–23)
(internal quotation marks omitted). This case is demonstrative. Mays does not
simply face a significant risk of unlawful punishment in light of Johnson.
Unlawful punishment is guaranteed. Johnson “eliminated [the] State’s power to . .
. impose [the very] punishment” that Mays currently faces—a prison term based on
the residual clause. See Montgomery, 136 S. Ct. at 729–30 (discussing the scope
of and rationale underlying the Teague substantive rule principle). Finally, Rivero
supports a finding that Johnson applies retroactively under the Teague principles.
Referencing Schriro’s conclusion that, under Teague, “new substantive rules
generally apply retroactively on collateral review,” Rivero stated that Johnson
would apply retroactively to a prisoner “seeking a first collateral review of his
sentence.” See Rivero, 797 F.3d at 991. Therefore, we hold that Johnson applies
retroactively on collateral review to prisoners seeking habeas relief for the first
time.
In light of our finding that Johnson applies retroactively to prisoners, like
Mays, who are challenging their § 924(e)(1) sentence via an initial habeas petition,
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we conclude that Mays’s burglary conviction cannot be considered a violent felony
under the residual clause.
* * *
In sum, neither the enumerated clause nor the residual clause applies to
Mays’s burglary conviction. The conviction is, therefore, not a violent felony, and
Mays has, at most, two qualifying prior convictions under § 924(e)(1). As a result,
Mays’s sentence is illegal. 12
IV. CONCLUSION
We reverse the district court’s denial of Mays’s § 2255 motion to vacate and
remand this case to district court for resentencing, without the § 924(e)(1)
enhancement. In resentencing Mays, the district court shall perform a fresh review
of the 18 U.S.C. § 3553(a) factors. See United States v. Estrada, 777 F.3d 1318,
1323 (11th Cir. 2015) (per curiam) (ordering that, on remand for resentencing, “the
district court shall consider all appropriate 18 U.S.C. § 3553(a) factors in
determining a reasonable sentence”).
12
Moreover, such an illegal sentence warrants habeas relief. Defendants convicted under
§ 922(g)(1) are subject to a 10-year statutory maximum sentence unless they qualify for §
924(e)(1)’s 15-year minimum sentence. See 18 U.S.C. §§ 924(a)(2), (e)(1). Hence, erroneously
sentencing a defendant under § 924(e)(1) results in “actual prejudice”: a sentence 5 years above
the applicable statutory maximum. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct.
1710, 1722 (1993) (internal quotation marks omitted). Indeed, that sentencing error “affect[s]
[the defendant’s] substantial rights and seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” See United States v. Sanchez, 586 F.3d 918, 930 (11th
Cir. 2009) (internal quotation marks omitted) (holding that an error resulting in a sentence above
the statutory maximum meets even the plain error standard).
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REVERSED AND REMANDED.
18
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JORDAN, Circuit Judge, concurring.
We have held that Johnson v. United States, 135 S.Ct. 2551, 2557 (2015)—
which ruled that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §
924(e), is unconstitutionally vague—“announced a new substantive rule of
constitutional law.” In re Rivero, 786 F.3d 986, 988 (11th Cir. 2015) (denying
application for leave to file a second or successive motion to vacate because the
Supreme Court had not made Johnson retroactive to cases on collateral review).
Under Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016), which the Supreme
Court decided after Rivero, “when a new [substantive] rule of constitutional law
controls the outcome of a case, the Constitution requires” that rule to be given
retroactive effect on collateral review.
The combination of Rivero and Montgomery makes Johnson retroactive and
applicable to cases on initial collateral review. Whether or not Montgomery also
calls into question the retroactivity holding of Rivero itself (as to applications to
file a second or successive motion to vacate based on Johnson) is a matter left for
another day. I note also that Montgomery, which held that Miller v. Alabama, 132
S.Ct. 2455 (2012), announced a new substantive rule of constitutional law which
had to be given retroactive effect on collateral review, abrogates our contrary
decision (and much of the retroactivity analysis) in In re Morgan, 713 F.3d 1365
(11th Cir. 2013).
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Finally, I recognize that the Johnson issue is being raised for the first time
on appeal and that our review is therefore for plain error. That standard of review,
however, does not call for a different result here. We have held that, where a
sentence exceeds the statutory maximum, plain error exists and needs to be
corrected because it affects the defendant’s substantial rights as well as the
fairness, integrity, and public reputation of the judicial proceedings. See United
States v. Sanchez, 586 F.3d 918, 930 (11th Cir. 2009) (sentences of life
imprisonment, resulting from district court’s plain error in treating a defendant’s
prior Florida drug offenses as “serious drug offenses” under the “three strikes law,”
18 U.S.C. § 3559(c), had to be vacated because they exceeded the statutory
maximum terms of 20 years that would have otherwise applied); United States v.
Eldick, 393 F.3d 1354, 1354 n.1 (11th Cir. 2004) (“The sentence rendered was
plain error because it exceeded the statutory maximum.”).
With these thoughts, I join the court’s opinion in full.
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