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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14126
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-02103-ODE-1,
1:92-cr-00174-ODE-WLH-1
RONALD BERNARD DANIEL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 20, 2018)
Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Ronald Bernard Daniel, a federal prisoner, appeals the denial of his second
motion to vacate his sentence, which he obtained our permission to file. 28 U.S.C.
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§ 2255(a), (h). After expiration of the one-year statute of limitation, id.
§ 2255(f)(1), Daniel moved for relief on the ground that his two prior convictions
in Georgia for armed robbery did not qualify as predicate offenses to enhance his
sentence under the Armed Career Criminal Act in the wake of Descamps v. United
States, 570 U.S. 254 (2013), and Johnson v. United States, 135 S. Ct. 2551 (2015).
We granted Daniel a certificate of appealability to address “[w]hether the Georgia
armed robbery statute categorically . . . qualifies as a violent felony under [the
elements clause of the Act,] 18 U.S.C. § 924(e)(2)(B)(i).” While the appeal was
pending, we issued Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), and
the parties have addressed that decision in their response and reply briefs. Based on
Beeman, we affirm the denial of Daniel’s second motion to vacate.
Daniel challenged his sentence of 327 months of imprisonment for
possessing an unlawful firearm, 26 U.S.C. § 5861(d), and for possessing a firearm
as a felon, 18 U.S.C. §§ 922(g), 924(e). Daniel’s presentence investigation report
classified him as an armed career criminal based on his prior convictions in
Georgia in 1977 for burglary and in 1978 for two counts of armed robbery. Daniel
objected to the use of his burglary conviction, but the district court overruled the
objection. See id. § 924(e). The district court calculated Daniel’s advisory
guideline range as 262 to 327 months, and sentenced him at the high end of that
range for being a felon in possession of a firearm and to a concurrent term of 120
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months for his possession of an unlawful firearm, followed by five years of
supervised release. We affirmed Daniel’s convictions and sentence, United States
v. Daniel, 9 F.3d 1559 (11th Cir. 1993) (unpublished table decision), and the
district court later denied a motion that Daniel filed seeking to vacate his sentence,
28 U.S.C. § 2255.
After he obtained our permission to do so, Daniel filed a second motion to
vacate and challenged the use of his prior convictions for armed robbery, Ga. Code
Ann. § 26-1902, as predicate offenses under the Act. See 28 U.S.C. § 2255. Daniel
acknowledged that the district court failed to identify which clause of the Act it
used to classify his prior convictions as violent felonies, but he argued that the
convictions qualified only under the residual clause, which had been invalidated in
Johnson, 135 S. Ct. at 2557–58. Daniel also argued that his prior convictions did
not qualify under the elements clause because the armed robbery statute did not
require the use of “violent force,” Curtis Johnson v. United States, 559 U.S. 133,
140 (2010). See Descamps v. United States, 570 U.S. 254 (2013). The government
responded that Daniel’s motion was untimely, he failed to prove that he had been
sentenced under the residual clause, and his prior convictions qualified as predicate
offenses under the enumerated crimes and elements clauses of the Act.
The district court denied Daniel’s second motion to vacate on the ground
that his prior convictions were categorically violent felonies under the elements
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clause of the Act. The district court did not address the timeliness of Daniel’s
motion or whether he proved that he was sentenced under the residual clause.
“When we review the denial of a motion to vacate a sentence, we review
legal conclusions de novo and findings of fact for clear error.” Spencer v. United
States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (internal citations and
quotation marks omitted). “We may affirm on any ground supported by the
record.” Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (quoting
LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir.2014)). When a certificate
of appealability fails to mention procedural claims that must be resolved for the
panel to reach the merits, we assume that the certificate encompasses any
procedural claims that must be addressed on appeal. McCoy v. United States, 266
F.3d 1245, 1248 n.2 (11th Cir. 2001).
The Armed Career Criminal Act increases prison sentences for defendants
who have three prior convictions for violent felonies or serious drug offenses. The
Act defines the term “violent felony” as any crime punishable by a term of
imprisonment exceeding one year 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.
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18 U.S.C. § 924(e)(2)(B). The first part of the definition is referred to as the
elements clause, while the second part contains what are referred to as the
enumerated crimes and residual clauses. United States v. Owens, 672 F.3d 966, 968
(11th Cir. 2012).
We address separately claims for relief that are based on Johnson and
Descamps because they “make two very different assertions.” Beeman, 871 F.3d at
1220. “A Johnson claim contends that the defendant was sentenced as an armed
career criminal under the residual clause,” Beeman, 871 F.3d at 1220, and the
resulting enhancement of his sentence “denies due process of law” because the
clause is void for vagueness, Johnson, 135 S. Ct. at 2557–58. “[A] Descamps
claim asserts that the defendant was incorrectly sentenced as an armed career
criminal under the elements or enumerated offenses clause,” Beeman, 871 F.3d at
1220, because the elements of the indivisible statute under which the defendant
was convicted punishes a broader range of conduct than the federal generic crime,
Descamps, 570 U.S. at 257.
In Beeman, which we decided after the district court denied Daniel’s second
motion to vacate, we held that a claim based on Descamps does not trigger the one-
year period of limitation, 28 U.S.C. § 2255(f), but that a claim based on Johnson
does trigger the limitations period and is timely if brought within one year of the
issuance of the opinion. 871 F.3d at 1219–20. To obtain relief based on Johnson,
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the postconviction movant must prove that his sentence “enhancement was due to
use of the residual clause.” Id. at 1222. “In other words, he must show that the
clause actually adversely affected the sentence he received.” Id. at 1221. The
movant must prove that “(1) [] the sentencing court relied solely on the residual
clause to qualify a prior conviction as a violent felony, as opposed to also or solely
relying on either the enumerated offenses clause or elements clause, and (2) []
there were not at least three other prior convictions that could have qualified under
either of those two clauses as a violent felony, or as a serious drug offense.” Id. If
the record is unclear, and “it is just as likely that the sentencing court relied on the
elements or enumerated offenses clause, solely or as an alternative basis for the
enhancement, then the movant has failed to show that his enhancement was due to
use of the residual clause.” Id. at 1222.
The district court did not err by denying Daniel’s second motion to vacate.
Daniel’s challenge to his prior convictions for armed robbery serving as predicate
offenses under the elements clause, which is a Descamps claim, was untimely. See
id. at 1219–20. Daniel’s challenge based on the residual clause, which is a Johnson
claim, was timely because he filed his postconviction motion six days before
expiration of the extended one-year limitation period to bring such a claim. See id.
at 1219. But Daniel’s Johnson claim fails on the merits.
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Daniel failed to prove “that—more likely than not—it was use of the
residual clause that led to the sentencing court’s enhancement of his sentence.” Id.
at 1222. Daniel does not argue that the sentencing court relied on the residual
clause; rather, he contends that his prior convictions for armed robbery do not
qualify as violent felonies under the elements clause. Daniel’s presentence
investigation report used his armed robbery convictions to classify him as an
armed career criminal, but the report did not state how the convictions qualified as
predicate offenses. And, as Daniel acknowledged in his postconviction motion, the
sentencing court did not explain why his armed robbery convictions qualified as
violent felonies. Nothing in the record supports Daniel’s argument that the district
court relied on the residual clause to enhance his sentence under the Act. Because
“the evidence does not clearly explain what happened . . . [Daniel,] the party with
the burden[,] loses.” Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357
(11th Cir. 2001)).
Daniel argues that the government is “rais[ing] . . . for the first time the
defense that . . . [he] failed to meet his burden of proof on his Johnson claim,” but
the record shows otherwise. The government opposed Daniel’s second
postconviction motion and argued that “[t]he Eleventh Circuit has made clear that
Defendant bears the burden of demonstrating . . . that, on the merits of [his] claim,
he succeeds,” that “includes a requirement that Defendant show that he was
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sentenced using the residual clause,” and Daniel “cannot prove that the residual
clause played any part in the determination that he was an armed career criminal”
when his “attack[ is] based . . . on the enumerated and elements clauses . . . .” And
the government cited In re Chance, 831 F.3d 1335 (11th Cir. 2016), and quoted a
paragraph from In re Moore, 830 F.3d 1268 (11th Cir. 2016), requiring the
defendant to prove “that the use of [the residual] clause made a difference in the
sentence” and cautioning that he “fail[s] his burden of showing all that is necessary
to warrant § 2255 relief” when “the district court cannot determine . . . one way or
another . . . whether the residual clause was used in sentencing and affected the
final sentence,” id. at 1273. The government argued to the district court that Daniel
failed to prove his Johnson claim.
We AFFIRM the denial of Daniel’s second motion to vacate.
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