FILED
FOR PUBLICATION
AUG 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-35018
Plaintiff-Appellee, D.C. Nos. 3:15-cv-00227-RRB
3:06-cr-00082-RRB-1
v.
DAVID P. GEOZOS, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 15, 2017
Anchorage, Alaska
Before: Susan P. Graber, Richard R. Clifton, and Milan D. Smith, Jr., Circuit
Judges.
Opinion by Judge Graber
GRABER, Circuit Judge:
Defendant David P. Geozos appeals the district court’s denial of his 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. When
Defendant was sentenced in 2007, the district court determined that he was an
armed career criminal under the Armed Career Criminal Act of 1984 ("ACCA"),
18 U.S.C. 924(e), and sentenced him to 15 years in prison—the mandatory
minimum sentence under ACCA. The court found that Defendant had five
convictions that qualified as "violent felonies" under ACCA, but the court did not
specify whether it found each of those convictions to qualify under the "residual
clause" of the statute, the "force clause," or both.1
In Johnson v. United States (Johnson II), 135 S. Ct. 2551, 2563 (2015), the
Supreme Court held that "imposing an increased sentence under the residual clause
1
ACCA defines a "violent felony" as follows:
[T]he term "violent felony" means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such
term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). The first part of this definition (§ 924(e)(2)(B)(i)) is
called the "force clause." United States v. Strickland, 860 F.3d 1224, 1226 (9th
Cir. 2017). The second part (§ 924(e)(2)(B)(ii)) has two clauses: the "enumerated
felonies clause," which lists certain generic crimes that qualify as violent felonies;
and the "residual clause," which provides that any felony that "involves conduct
that presents a serious potential risk of physical injury to another" is a violent
felony. Id.
2
of [ACCA] violates the Constitution’s guarantee of due process." The Court made
that rule of constitutional law retroactively applicable to cases on collateral review
in Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Before Johnson II and
Welch were decided, Defendant unsuccessfully moved to vacate, set aside, or
correct his sentence under § 2255. Defendant now brings a second § 2255 motion.
He argues that his new motion relies on the rule announced in Johnson II and that,
therefore, he may bring his motion under one of the narrow exceptions to the bar
on second or successive § 2255 motions. He also argues that any reliance by the
sentencing court on the now-invalidated residual clause of ACCA is not harmless,
because at least three of his convictions do not qualify as "violent felonies" under
any of the remaining valid ACCA clauses. We agree with Defendant on both
points, and we therefore reverse.
FACTUAL AND PROCEDURAL HISTORY
In October 2006, Defendant was indicted on one count of possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and one count of
felony possession of cocaine. In January 2007, Defendant pleaded guilty to both
counts, and the Government agreed that it would dismiss the drug charge at
sentencing.
3
The Presentence Investigation Report ("PSR"), prepared in advance of
Defendant’s sentencing hearing, stated that Defendant was "subject to an enhanced
sentence" for the firearms charge under ACCA because of his criminal history.
ACCA provides that "a person who violates [§] 922(g) . . . and has three previous
convictions by any court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, . . . shall be fined under this
title and imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). The PSR
did not specify which of Defendant’s prior convictions qualified as "violent
felonies" or "serious drug offenses" for ACCA purposes. There were six
convictions listed in the PSR that could conceivably have qualified: (1) a 2001
conviction for assault in the third degree in Alaska, (2) a 1992 conviction for
possession of cocaine in Florida, (3) a 1992 conviction for burglary in Florida, (4)
a 1981 conviction for armed robbery in Florida, (5) a 1981 conviction for robbery
and for using a firearm in the commission of a felony in Florida,2 and (6) another
1981 conviction for armed robbery in Florida.
2
Technically, these were two separate convictions, but only one may be
counted for ACCA purposes because the convictions were for crimes that were
"part of one criminal episode." United States v. McElyea, 158 F.3d 1016, 1021
(9th Cir. 1998). For simplicity’s sake, we will refer to the two armed robbery
convictions, the robbery conviction, and the conviction for using a firearm in the
commission of a felony as the "Florida robbery convictions."
4
The sentencing court found that Defendant qualified as an armed career
criminal, but it did not specify which of the prior convictions served as the three
predicate convictions. It is clear from the record that the court did not rely on the
conviction for possession of cocaine,3 and it appears that the court found that all
five of the other convictions qualified as convictions for "violent felonies." But the
court did not say whether it found any or all of those convictions to qualify as a
conviction for a violent felony under the residual clause of ACCA. On direct
appeal, we affirmed Defendant’s sentence, holding that the three Florida robbery
convictions and the Alaska assault conviction qualified as convictions for violent
felonies under ACCA and declining to decide whether the Florida burglary
conviction qualified. United States v. Geozos, 286 F. App’x 517, 518 n.1 (9th Cir.
2008) (unpublished).
In late 2009, Defendant filed a motion to vacate his sentence under § 2255,
claiming that his lawyers had provided ineffective assistance at sentencing. United
States v. Geozos, No. 3:06-cr-082-RRB-JDR, 2010 WL 4942571, at *1 (D. Alaska
Nov. 24, 2010). The district court denied Defendant’s motion in early 2011.
3
The Government concedes expressly that the conviction for possession was
not a conviction for a "serious drug offense."
5
In the meantime, the Supreme Court decided Johnson v. United States
(Johnson I), 559 U.S. 133 (2010), a case involving the interpretation of the "force
clause" of ACCA. In Johnson I, the Supreme Court held that "the phrase ‘physical
force’" in the force clause "means violent force—that is, force capable of causing
physical pain or injury to another person." Id. at 140.
Five years later, the Supreme Court invalidated the residual clause of ACCA
in Johnson II, 135 S. Ct. at 2563. Less than one year after that, in Welch, 136 S.
Ct. at 1268, the Court held that the rule of Johnson II applies retroactively to cases
on collateral review.
Following the Court’s decision in Johnson II, Defendant sought leave of this
court to file a second § 2255 motion in district court. After Welch was decided, we
granted Defendant leave, and he filed his motion. The district court denied the
motion. We granted a certificate of appealability, and he now brings this timely
appeal.
STANDARD OF REVIEW
We review de novo a district court’s decision to deny a § 2255 motion.
United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).
DISCUSSION
6
This case presents a question that has cropped up somewhat frequently4 in
the wake of Johnson II and Welch: When a defendant was sentenced as an armed
career criminal, but the sentencing court did not specify under which clause(s) it
found the predicate "violent felony" convictions to qualify, how can the defendant
show that a new claim "relies on" Johnson II, a decision that invalidated only the
residual clause? We address that question first. Because we hold that Defendant’s
claim "relies on" Johnson II, we then address the merits of the claim and consider
whether the Johnson II error at Defendant’s sentencing was harmless.
A. What It Means for a Claim to "Rely On" Johnson II
The threshold question is whether Defendant’s claim relies on the rule
announced in Johnson II such that he may bring that claim in a second or
successive § 2255 motion. See United States v. Buenrostro, 638 F.3d 720, 721
(9th Cir. 2011) (per curiam) ("[T]he Anti-Terrorism and Effective Death Penalty
Act of 1996 precludes [a movant] from filing a ‘second or successive’ § 2255
motion unless he can show either that he relies on a new rule of constitutional law,
4
The question has cropped up somewhat frequently because "[n]othing in
the law requires a [court] to specify which clause of [the statute]—residual or
elements clause—it relied upon in imposing a sentence." In re Chance, 831 F.3d
1335, 1340 (11th Cir. 2016). Thus, at many pre-Johnson II sentencings, the court
did not specify under which clause it found the ACCA predicate offenses to
qualify.
7
§ 2255(h)(2), or ‘that no reasonable factfinder would have found [him] guilty of
the offense,’ § 2255(h)(1)." (alteration in original)).5 We hold that his claim does
rely on Johnson II.
The relevant exception to the bar on second or successive § 2255 motions
requires a movant to show that the claim relies on "a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable." 28 U.S.C. § 2255(h)(2) (emphasis added). A claim
necessarily "relies on" a rule of constitutional law if the claim is that the movant
was sentenced in violation of that constitutional rule. So, to show that a claim
relies on "a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable," it is sufficient for a
5
Though we authorized Defendant to file a second or successive motion,
that authorization required only a prima facie demonstration that Defendant’s claim
"relies on" Johnson II, see 28 U.S.C. § 2244(b)(3)(C); our authorization did not
compel the district court to find that Defendant’s claim actually relies on Johnson
II, nor does it bind us now. See Bible v. Schriro, 651 F.3d 1060, 1064 n.1 (9th Cir.
2011) (per curiam) ("A prima facie showing is a sufficient showing of possible
merit to warrant a fuller exploration by the district court, and we will grant an
application for [a second or successive] petition if it appears reasonably likely that
the application satisfies the stringent requirements for the filing of a second or
successive petition." (internal quotation marks omitted)); see also United States v.
Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000) (per curiam) ("[A] district
court must conduct a thorough review of all allegations and evidence presented by
the prisoner to determine whether the motion meets the statutory requirements for
the filing of a second or successive motion.").
8
§ 2255 movant to show that (1) he or she was sentenced in violation of the
Constitution and that (2) the particular constitutional rule that was violated is
"new," was "previously unavailable," and was "made retroactive to cases on
collateral review by the Supreme Court." Here, there is no doubt that the rule in
Johnson II meets the latter requirements; the only question is whether Defendant
also can show that he was sentenced in violation of the Constitution.
To answer that question, we begin by noting that a court’s determination that
a defendant qualifies for an ACCA enhancement is a finding. Shepard v. United
States, 544 U.S. 13, 25 (2005). As with any finding that is necessary for a
conviction—or a sentencing enhancement—it is made (or not made) based on the
evidence introduced to the relevant factfinder, and it is generally improper to
supplement that evidence on appeal. See Reina-Rodriguez v. United States, 655
F.3d 1182, 1193 (9th Cir. 2011) ("[I]t is not within our province to sentence the
defendant based on considerations outside the sentencing decision. Appellate
courts are not sentencing courts."); see also United States v. Petite, 703 F.3d 1290,
1292 n.2 (11th Cir. 2013) ("The government cannot offer for the first time on
appeal a new predicate conviction in support of an enhanced ACCA sentence."),
abrogated on other grounds by Johnson II. And, as with any other finding, a
9
finding that a defendant qualifies for an ACCA enhancement may be deemed to
rest on a valid or an invalid legal theory.
Had the sentencing court stated that the past convictions at issue were
convictions for "violent felonies" only under the residual clause, it would have
been, in effect, specifying the legal theory on which its ACCA determination
rested. We would know that Defendant’s sentence was imposed under an
invalid—indeed, unconstitutional—legal theory, and that Defendant was, therefore,
sentenced in violation of the Constitution. As the Government concedes, a
defendant who shows that a sentencing court relied solely on the residual clause in
imposing an ACCA enhancement has a claim that "relies on" Johnson II.
Conversely, had the sentencing court specified that a past conviction
qualified as a "violent felony" only under the force clause, we would know that the
sentence rested on a constitutionally valid legal theory. In that situation, the statute
would preclude the filing of a second or successive petition. 28 U.S.C.
§ 2255(h)(2).
But when it is unclear from the record whether the sentencing court relied on
the residual clause, it necessarily is unclear whether the court relied on a
constitutionally valid or a constitutionally invalid legal theory. Defendant argues
that this situation is analogous to that of a defendant who has been convicted, in a
10
general verdict, by a jury that was instructed on two theories of liability, one of
which turns out to have been unconstitutional. The rule in such a situation is clear:
"[W]here a provision of the Constitution forbids conviction on a particular ground,
the constitutional guarantee is violated by a general verdict that may have rested on
that ground." Griffin v. United States, 502 U.S. 46, 53 (1991) (emphasis added).
The case usually cited as the origin of that rule is Stromberg v. California, 283 U.S.
359 (1931), and the rule is sometimes referred to as the "Stromberg principle."
United States v. Washington, 861 F.2d 350, 352 (2d Cir. 1988).
We are persuaded that a rule analogous to the Stromberg principle should
apply in the sentencing context. It is true that the fact of a prior conviction need
not be proved to a jury beyond a reasonable doubt in order for a defendant to be
exposed to an enhanced sentence because of that conviction. Apprendi v. New
Jersey, 530 U.S. 466, 488–90 (2000). But it does not follow that, when a judge
makes a finding that a defendant qualifies for an enhanced sentence, and that
finding may rest on an unconstitutional ground, the finding should be treated any
differently than a finding made by a jury for the purpose of conviction. Indeed,
treating those findings differently because one involves sentencing and the other
involves conviction would be contrary to the principle that any "fact increasing
either end of [a sentencing] range produces a new penalty and constitutes an
11
ingredient of the offense." Alleyne v. United States, 133 S. Ct. 2151, 2160 (2013).
We therefore hold that, when it is unclear whether a sentencing court relied on the
residual clause in finding that a defendant qualified as an armed career criminal,
but it may have, the defendant’s § 2255 claim "relies on" the constitutional rule
announced in Johnson II.6
We recognize that there are differences between a jury’s finding and the type
of finding that a court makes when it rules that a defendant qualifies as an armed
career criminal. The latter finding rests largely on legal conclusions—state offense
X is categorically a "violent felony," state offense Y is not, etc. For that reason, it
may be possible to determine that a sentencing court did not rely on the residual
clause—even when the sentencing record alone is unclear—by looking to the
relevant background legal environment at the time of sentencing. If, for instance,
binding circuit precedent at the time of sentencing was that crime Z qualified as a
violent felony under the force clause, then a court’s failure to invoke the force
clause expressly at sentencing, when there were three predicate convictions for
crime Z, would not render unclear the ground on which the court’s ACCA
6
The Fourth Circuit recently came to a similar conclusion, holding that,
"when [a defendant’s] sentence may have been predicated on application of the
now-void residual clause and, therefore, may be an unlawful sentence under the
holding in Johnson II, the [defendant] has shown that he ‘relies on’ a new rule of
constitutional law." United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017).
12
determination rested. "Even under the traditional Stromberg analysis, a verdict
need not be set aside where it is possible to conclusively determine the jury relied
on a valid ground . . . ." United States v. Holly, 488 F.3d 1298, 1306 n.5 (10th Cir.
2007). By analogy, a claim does not "rely on" Johnson II if it is possible to
conclude, using both the record before the sentencing court and the relevant
background legal environment at the time of sentencing, that the sentencing court’s
ACCA determination did not rest on the residual clause.
Here, however, we cannot draw such a conclusion. At the time Defendant
was sentenced in 2007, neither this court nor the Supreme Court had held that
either Florida robbery or armed robbery qualified as a "violent felony." (We focus
only on the Florida robbery convictions because, if none of those convictions was a
conviction for a "violent felony," then Defendant would not have at least three such
convictions and would not qualify for an ACCA enhancement.) We had held (or
suggested in dicta) that other states’ robbery statutes described "violent felonies"
both under the force clause, United States v. Melton, 344 F.3d 1021, 1026 (9th Cir.
2003), and under the residual clause, United States v. McDougherty, 920 F.2d 569,
574 n.5 (9th Cir. 1990). The Eleventh Circuit had decided that Florida robbery
qualified under the residual clause, United States v. Wilkerson, 286 F.3d 1324,
1325 (11th Cir. 2002) (per curiam), and that Florida armed robbery qualified under
13
the force clause, United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006).
Other courts had held that various states’ robbery statutes described "violent
felonies" under one or both clauses. See, e.g., United States v. Tirrell, 120 F.3d
670, 680–81 (7th Cir. 1997) (holding that Michigan unarmed robbery qualified
under both clauses). Given that background legal environment and the sentencing
record, it is unclear whether the district court relied on the residual clause in
determining that the Florida robbery convictions qualified as violent felonies.
Accordingly, Defendant’s claim "relies on" Johnson II.
B. Merits
The next question is whether the Johnson II error is harmless—in other
words, are there three convictions that support an ACCA enhancement under one
of the clauses of ACCA that survived Johnson II? If so, then the Johnson II error
did not prejudice Defendant, and he is not entitled to relief. United States v.
Montalvo, 331 F.3d 1052, 1057–58 (9th Cir. 2003) (per curiam). We need only
consider the Florida robbery convictions because, as noted, if those convictions do
not count as predicate convictions under ACCA, then the sentencing court’s
Johnson II error was not harmless.
1. Use of Current Law in Assessing Harmlessness
14
To decide whether Defendant’s Florida robbery convictions qualify him as
an armed career criminal, we look to the substantive law concerning the force
clause as it currently stands, not the law as it was at the time of sentencing.
Critically, this means that we must consider the Supreme Court’s interpretation of
the force clause in Johnson I. We do so for two reasons.
First, in general, judicial interpretations of substantive statutes receive
retroactive effect. See, e.g., Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97
(1993) ("When this Court applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and must be given full
retroactive effect in all cases still open on direct review and as to all events,
regardless of whether such events predate or postdate our announcement of the
rule."); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 312–13 (1994)
("A judicial construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving rise to that
construction."). Although the Supreme Court has sometimes been careful to limit
that principle to cases on direct review, it has also applied the principle in collateral
challenges. See, e.g., Bousley v. United States, 523 U.S. 614, 618–21 (1998)
(applying a judicial construction of a statute that post-dated the habeas petitioner’s
conviction to determine whether the petitioner had been "misinformed . . . as to the
15
elements of [the] offense" before pleading guilty); see also Schriro v. Summerlin,
542 U.S. 348, 351–52 (2004) (noting that "[n]ew substantive rules generally apply
retroactively," even "to convictions that are already final").
Second, if this were Defendant’s first § 2255 motion, there is no doubt that
we would consider the current law to assess harmlessness. In Reina-Rodriguez, we
held that "a non-constitutional, substantive [judicial] decision concerning the reach
of" ACCA that post-dated the time when the movant’s conviction became final
applied in an initial § 2255 proceeding. 655 F.3d at 1187–90. In reaching that
conclusion, we rejected the Government’s argument that the relevant decision
could not apply "retroactively." "New substantive rules generally apply
retroactively," including "decisions that narrow the scope of a criminal statute by
interpreting its terms." Id. at 1188–89 (quoting Summerlin, 542 U.S. at 351). The
reason to apply substantive rules retroactively to cases on collateral review is that
"decisions that narrow the scope of a criminal statute by interpreting its terms"
necessarily raise the risk that people who have been convicted of violating that
statute—or whose punishment has been enhanced for violating that
statute—"stand[] convicted of an act that the law does not make criminal or face[]
a punishment that the law cannot impose upon [them]." Summerlin, 542 U.S. at
352 (internal quotation marks omitted).
16
That reason applies with equal force to a second or successive petition or
motion. The habeas petitioner filing a second or successive petition or motion who
claims to have been convicted of a crime that was not a crime is at no less risk of
being erroneously imprisoned than a habeas petitioner filing a first petition or
motion. Accordingly, once the bar to considering a second or successive petition
or motion has been overcome, the analysis of the merits is the same as if the
petitioner were bringing a first petition or motion. Indeed, the Tenth Circuit has
noted that, "if a court hears a second-or-successive § 2254 petition on its merits,
the standards are no different than hearing a first § 2254 petition on its merits."
Case v. Hatch, 731 F.3d 1015, 1038 n.12 (10th Cir. 2013).
2. Categorical Approach
We must determine whether robbery, armed robbery, and use of a firearm in
the commission of a felony in violation of Florida law qualify as "violent felonies"
under the force clause of ACCA. To do so, we employ the categorical approach.7
E.g., United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016). We ask whether
7
The Government does not argue that any of Defendant’s Florida robbery
convictions might qualify as a violent felony under the modified categorical
approach. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (describing
the modified categorical approach); Mays v. Clark, 807 F.3d 968, 980 (9th Cir.
2015) (stating that, "[o]n collateral review, relief is appropriate if the prosecution
cannot demonstrate harmlessness" (internal quotation marks omitted)).
17
each statute "has as an element the use, attempted use, or threatened use of physical
force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i)—that is, whether
the conduct proscribed by the statute necessarily involves "the use, attempted use,
or threatened use of physical force against the person of another." In answering
that question, "we look at both the text of the state statute and the state courts’
interpretations of the statute’s terms." United States v. Strickland, 860 F.3d 1224,
1226 (9th Cir. 2017) (internal quotation marks omitted). "State cases that examine
the outer contours of the conduct criminalized by the state statute are particularly
important because ‘we must presume that the conviction rested upon nothing more
than the least of the acts criminalized.’" Id. at 1226–27 (brackets omitted) (quoting
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)).
"[I]n the context of a statutory definition of ‘violent felony,’ the phrase
‘physical force’ means violent force—that is, force capable of causing physical
pain or injury to another person." Johnson I, 559 U.S. at 140. "Even by itself, the
word ‘violent’ in § 924(e)(2)(B) connotes a substantial degree of force. When the
adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong
physical force is even clearer." Id. (citations omitted).
In January 1981, Defendant was convicted of armed robbery in violation of
section 812.13(2)(a) of the Florida Statutes. In June of that same year, he was
18
convicted of robbery in violation of section 812.13 of the Florida Statutes and of
using a firearm in the commission of a felony in violation of section 790.07(2).
And, in September 1981, Defendant was again convicted of armed robbery in
violation of section 812.13(2)(a).
At the time of his convictions, section 812.13 defined robbery as "the taking
of money or other property which may be the subject of larceny from the person or
custody of another, by force, violence, assault, or putting in fear." Brown v. State,
397 So. 2d 1153, 1154 (Fla. Dist. Ct. App. 1981) (emphasis omitted) (quoting Fla.
Stat. § 812.13(1) (1979)). To convict a person under section 812.13(2)(a) at that
time, the state was required to prove that, "in the course of committing the
robbery," the person "carried a firearm or other deadly weapon." Fla. Stat.
§ 812.13(2)(a) (1981). And to convict a person under section 790.07(2), the state
was required to prove that the person, "while committing or attempting to commit
any felony or while under indictment[,] display[ed], use[d], threaten[ed], or
attempt[ed] to use any firearm or carrie[d] a concealed firearm." Id. § 790.07(2)
(1981).8
8
We refer to the statutes as they existed at the times of conviction because it
is the "version of state law that the defendant was actually convicted of violating"
that is relevant to the categorical analysis. McNeill v. United States, 563 U.S. 816,
821–22 (2011). The parties disagree as to whether post-conviction judicial
(continued...)
19
As an initial matter, the "armed" nature of each of Defendant’s convictions
does not make the conviction one for a violent felony. A person could be
convicted of violating section 812.13(2)(a) for merely carrying a firearm or other
deadly weapon during the course of a robbery. Accordingly, it would have been
possible for someone to be convicted of violating the statute for carrying a firearm
during a robbery even if that firearm was not displayed and the victim of the
robbery was unaware of its presence. State v. Baker, 452 So. 2d 927, 929 (Fla.
1984). Similarly, Defendant could have been convicted of violating section
790.07(2) for simply carrying a concealed firearm while committing a robbery.
8
(...continued)
interpretations of state statutes should be consulted when determining the content
of state law at the time of conviction. McNeill does not necessarily answer that
question. See United States v. Faust, No. 14-2292, 2017 WL 3045957, at * 2 (1st
Cir. July 19, 2017) (order) (Lynch, J., dissenting from denial of panel reh’g) ("It is
far from clear whether McNeill should govern the analysis in a case . . . in which
the text of the . . . statute remains unchanged and only judicial interpretations of
that statute have developed over time."); see also United States v. Seabrooks, 839
F.3d 1326, 1351 (11th Cir. 2016) (Martin, J., concurring in the judgment) (arguing
that post-conviction judicial decisions clarifying or refining the scope of a statute
should not be considered when conducting the categorical analysis), cert. denied,
137 S. Ct. 2265 (2017). We need not resolve that uncertainty. Although it is true
that the Florida Supreme Court arguably narrowed the scope of the conduct
proscribed by the Florida robbery statute in Robinson v. State, 692 So. 2d 883 (Fla.
1997), see Seabrooks, 839 F.3d at 1343–44, the statute as construed post-Robinson
is still too broad to qualify as a "violent felony" under the force clause.
Accordingly, we look to Robinson and decisions following Robinson in our
analysis, because doing so does not change the result.
20
The mere presence of a firearm or other deadly weapon that is never revealed to a
robbery victim does not constitute the "use, attempted use, or threatened use of
physical force" against the victim. See Parnell, 818 F.3d at 980–81 ("The mere
fact an individual is armed, however, does not mean he or she has used the
weapon, or threatened to use it, in any way.").
The crucial question, therefore, is whether robbery as defined in section
812.13(1) "has as an element the use, attempted use, or threatened use of physical
force against the person of another." The text of the statute itself, together with the
relevant Florida caselaw, shows that the answer is "no."
Section 812.13(1) uses the terms "force" and "violence" separately, which
suggests that not all "force" that is covered by the statute is "violent force." But
only violent force—that is, "strong physical force," Johnson I, 559 U.S. at 140
(emphasis added)—qualifies under the force clause of ACCA. Before even turning
to the caselaw, then, there is reason to doubt whether a conviction for violating
section 812.13 qualifies as a conviction for a "violent felony."
The Florida caselaw makes it clear that one can violate section 812.13
without using violent force. "[I]n order for the snatching of property from another
to amount to robbery, the perpetrator must employ more than the force necessary to
remove the property from the person. Rather, there must be resistance by the
21
victim that is overcome by the physical force of the offender." Robinson v. State,
692 So. 2d 883, 886 (Fla. 1997). Crucially, the amount of resistance can be
minimal. See Mims v. State, 342 So. 2d 116, 117 (Fla. Dist. Ct. App. 1977) (per
curiam) ("Although purse snatching is not robbery if no more force or violence is
used than necessary to physically remove the property from a person who does not
resist, if the victim does resist in any degree and this resistance is overcome by the
physical force of the perpetrator, the crime of robbery is complete." (emphasis
added)).9 Under Florida law, then, a person who engages in a non-violent tug-of-
war with a victim over the victim’s purse has committed robbery. See Benitez-
Saldana v. State, 67 So. 3d 320, 323 (Fla. Dist. Ct. App. 2011) ("[A] conviction for
robbery may be based on a defendant’s act of engaging in a tug-of-war over the
victim’s purse."). According to our precedent, such an act does not involve the use
of violent force within the meaning of ACCA. See Strickland, 860 F.3d at 1227
(citing an Oregon case in which "the victim and the thief had a tug-of-war over [a]
purse" as an example of a case involving something less than violent force within
the meaning of Johnson I).
The Florida robbery statute is not as broad as the robbery statute that we
considered in Parnell, which proscribed the taking of property from a victim when
9
Mims was cited with approval in Robinson, 692 So. 2d at 886.
22
the victim did not resist at all, provided that the victim was aware of the force. See
818 F.3d at 979 ("The offense need not involve resistance by the victim."). But,
like the statute at issue in Parnell, the Florida robbery statute proscribes the taking
of property even when the force used to take that property is minimal. See id. at
979–80 ("Because the degree of force is immaterial, any force, however slight, will
satisfy [the statute] so long as the victim is aware of it. Such force is insufficient
under Johnson[ I]." (citations and internal quotation marks omitted)). In short, the
Florida statute requires that the victim resist the force and the statute at issue in
Parnell required that the victim be aware of the force, but neither statute requires
that the force used be violent force.
We hold that neither robbery, armed robbery, nor use of a firearm in the
commission of a felony under Florida law is categorically a "violent felony." We
recognize that this holding puts us at odds with the Eleventh Circuit, which has
held, post-Johnson I, that both Florida robbery and (necessarily) armed robbery are
"violent felonies" under the force clause. See United States v. Lockley, 632 F.3d
1238, 1245 (11th Cir. 2011) (robbery); see also United States v. Fritts, 841 F.3d
937, 942 (11th Cir. 2016) ("[W]e hold here that under Lockley . . . a Florida armed
robbery conviction under § 812.13(a) [sic] categorically qualifies as a violent
felony under the ACCA’s elements clause."), cert. denied, 137 S. Ct. 2264 (2017).
23
But we are bound by our own precedent—including Parnell and Strickland—which
may differ from the Eleventh Circuit’s interpretation. Moreover, we think that the
Eleventh Circuit, in focusing on the fact that Florida robbery requires a use of force
sufficient to overcome the resistance of the victim, has overlooked the fact that, if
the resistance itself is minimal, then the force used to overcome that resistance is
not necessarily violent force. See Montsdoca v. State, 93 So. 157, 159 (Fla. 1922)
("The degree of force used is immaterial. All the force that is required to make the
offense a robbery is such force as is actually sufficient to overcome the victim’s
resistance.").
In summary, none of the Florida robbery convictions qualifies as a "violent
felony" under the force clause, so the Johnson II error at Defendant’s sentencing
was not harmless. Accordingly, Defendant is entitled to relief.
We reverse the district court’s order denying Defendant’s § 2255 motion and
remand with instructions to vacate Defendant’s sentence. Because Defendant has
already been in prison longer than the statutory maximum sentence for a
non-ACCA-enhanced conviction under 18 U.S.C. § 922(g)(1), see id. § 924(a)(2),
the district court shall direct that Defendant be released from custody immediately.
The mandate shall issue forthwith.
REVERSED.
24