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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15394
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-02090-TWT; 1:01-cr-00726-TWT-GGB-1
CHARLES HARPER,
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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(July 16, 2018)
Before JORDAN, NEWSOM, and HULL, Circuit Judges.
PER CURIAM:
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Charles Harper appeals the district court’s denial of his authorized second 28
U.S.C. § 2255 motion to vacate, which raised a challenge to his sentence under
Johnson v. United States, 135 S. Ct. 2551 (2015). The district court granted a
certificate of appealability (“COA”) regarding whether (1) Harper’s motion to
vacate was time-barred under 28 U.S.C. § 2255(f), and (2) the Georgia aggravated-
assault statute has as an element the use, attempted use, or threatened use of
physical force against the person of another. Although we conclude that the
district court erred in denying Harper’s motion as untimely, we nonetheless affirm
because Harper cannot meet his burden of proving, under Beeman v. United States,
871 F.3d 1215 (11th Cir. 2017), that it is more likely than not that his sentence was
enhanced pursuant to the Armed Career Criminal Act’s residual clause in violation
of Johnson. The facts are known to the parties; we will not repeat them here
except as necessary.
In a § 2255 proceeding, we review a district court’s legal conclusions de
novo and its factual findings for clear error. Farris v. United States, 333 F.3d
1211, 1216 (11th Cir. 2003). We also review de novo the district court’s
determination that a § 2255 motion is time-barred. Beeman, 871 F.3d at 1219.
Regardless of the ground stated in the district court’s order or judgment, we may
affirm on any ground supported by the record. Castillo v. United States, 816 F.3d
1300, 1303 (11th Cir. 2016).
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There is a one-year statute of limitations for filing a § 2255 motion to vacate,
which begins to run following, among other things, the date on which the judgment
of conviction becomes final or “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2255(f)(1), (3). The § 2255(f) statute of limitations “requires a claim-
by-claim approach to determine timeliness.” Beeman, 871 F.3d at 1219 (quotation
marks omitted). Thus, if a defendant asserts that his § 2255 motion is timely
because he filed it within one year of the Supreme Court’s issuance of a decision
recognizing a new right, we must determine whether each claim asserted in the
motion depends on that new decision. Id.
The Armed Career Criminal Act (“ACCA”) 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 ….
18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred
to as the “elements clause,” while the second prong contains the “enumerated
crimes clause” and, finally, what is commonly called the “residual clause.” See
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United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). On June 26, 2015, the
Supreme Court in Johnson held that the residual clause of the ACCA is
unconstitutionally vague because it creates uncertainty about how to evaluate the
risks posed by a crime and how much risk it takes to qualify as a violent felony.
135 S. Ct. at 2557-58, 2563. Thus, under Johnson, a defendant’s sentence cannot
be enhanced using the ACCA’s residual clause because the residual clause is
unconstitutionally vague. Id. at 2563. Thereafter, the Supreme Court held that
Johnson announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65, 1268 (2016).
In Descamps v. United States, the Supreme Court held that when a crime of
conviction has only a “single, indivisible set of elements,” sentencing courts may
consider only the statute’s language when determining if a conviction qualifies as a
“violent felony” under the ACCA’s elements clause. 570 U.S. 254, 258 (2013).
Although we have held that the Descamps decision is retroactively applicable to
cases on collateral review, we noted that Descamps did not set out a right newly
recognized by the Supreme Court. See Mays v. United States, 817 F.3d 728, 733-
34 (11th Cir. 2016).
Importantly for present purposes, in Beeman we explained the difference
between a claim relying on Johnson and a claim relying on Descamps, clarifying
that a Johnson claim argues that the defendant was sentenced as an armed career
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criminal under the residual clause, whereas “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. We
determined that the litigant there had sufficiently raised both. Id. We concluded
that he had raised a Descamps claim in his § 2255 motion because he relied on that
decision in arguing that his Georgia conviction for aggravated assault could no
longer qualify as a violent felony under the elements clause. Id. Although the
movant had primarily relied on Descamps, we concluded that he had nevertheless
also raised a Johnson claim because he (1) filed his motion 19 days before the 1-
year anniversary of the Johnson decision and (2) argued that Georgia aggravated
assault historically qualified as an ACCA predicate under the residual clause and
that courts have defaulted to using the residual clause for many state statutes that
might otherwise have qualified under the elements or enumerated-offenses clauses.
Id. at 1220-21. We held that the movant’s Descamps claim was untimely but that
he raised a timely Johnson claim. Id.
As to the merits of the Johnson claim, we held that a § 2255 movant must
prove that it was “more likely than not” that the use of the residual clause led the
sentencing court to impose the ACCA enhancement. Id. at 1221-22. As nothing
in the record showed that the sentencing court relied on the residual clause—rather
than the elements clause—and the movant there cited no precedent from the time
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of sentencing showing that his conviction qualified as a violent felony only under
the residual clause, we concluded that the movant could not carry his burden. Id.
at 1224-25. However, we stated that each case must be judged on its own facts and
that different kinds of evidence could be used to show that a sentencing court
relied on the residual clause. Id. at 1224 n.4. As examples, we stated that a record
may contain direct evidence in the form of a sentencing judge’s comments or
findings indicating that the residual clause was essential to an ACCA
enhancement. Id. Further, we stated that a record may contain sufficient
circumstantial evidence, such as unobjected-to presentence investigation report
(“PSI”) statements recommending that the enumerated-offenses and elements
clauses did not apply or concessions made by the prosecutor that those two clauses
did not apply. Id. We clarified, however, that the relevant issue is one of
“historical fact”—whether at the time of sentencing the defendant was sentenced
solely under the residual clause. Id. at 1224 n.5. Accordingly, we emphasized that
precedent issuing after sentencing “casts very little light, if any, on the key
question” whether the defendant was, in fact, sentenced only under the residual
clause. Id.
Here, under Beeman, the district court erred when it determined that
Harper’s § 2255 motion was untimely. First, Harper filed his second § 2255
motion within one year of Johnson. See Beeman, 871 F.3d at 1219; 28 U.S.C.
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§ 2255(f)(3). Second, Harper’s claim is appropriately characterized as a Johnson
claim, despite his frequent citations to Descamps, because he (1) filed his § 2255
motion days before the one-year deadline for filing a Johnson claim, indicating that
he intended to invoke Johnson; (2) argued that the only clause under which his
Georgia aggravated assault conviction could have qualified under was the residual
clause because there was no existing precedent analyzing it under the elements
clause; and (3) asserted that he no longer had three predicate convictions after
Johnson. Beeman, 871 F.3d at 1220-21.
Despite the timeliness of Harper’s motion, his Johnson claim nonetheless
fails. Like the movant in Beeman, Harper cannot prove that it is more likely than
not that his sentence was enhanced under the ACCA’s residual clause. See
Beeman, 871 F.3d at 1221-22. In fact, he made a series of concessions before the
district court that are dispositive of the issue. In his second § 2255 motion, Harper
acknowledged that whether Georgia aggravated assault remained a violent felony
after Johnson was “up in the air,” and noted that there was no binding precedent
from this Court addressing the issue. Beeman, 871 F.3d at 1224-25. In his reply,
Harper admitted that the record was silent as to whether the district court used the
residual clause to enhance his sentence, as the district court did not specify under
which clause his offenses qualified. Beeman, 871 F.3d at 1223. The most he
could say is that the sentencing court may have relied on the residual clause
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because it did not affirmatively rely on the elements clause. See Beeman, 871 F.3d
at 1223-25. That is not enough. Harper has effectively conceded that he cannot
meet the burden in Beeman.
Furthermore, Harper’s concessions aside, the record here is silent as to
which clause the court relied on to enhance his sentence. The district court at
sentencing did not explain or indicate, one way or the other, whether the ACCA
enhancement applied because Georgia aggravated assault was a violent felony
under the elements clause or residual clause. Beeman, 871 F.3d at 1221-25. While
the sentencing court noted that Harper was an armed career criminal—an assertion
with which Harper’s counsel affirmatively agreed—it did not state how it came to
that determination. Nor is Harper able to point to any precedent from this Court
that analyzes the Georgia aggravated assault statute under the residual clause.
Thus, Harper (like the movant in Beeman) cannot show that he more likely than
not was sentenced under the residual clause.
Because Harper cannot meet his burden of proving, pursuant to Beeman, that
it was more likely than not his sentence was enhanced under the ACCA’s residual
clause, we AFFIRM.
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