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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10603
Non-Argument Calendar
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D.C. Docket Nos. 9:16-cv-81059-DTKH; 9:12-cr-80220-DTKH-1
BRANDON BIVINS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 28, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM:
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Brandon Bivins, a federal prisoner, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate his 235-month sentence under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After review, we affirm.
I. BACKGROUND FACTS
A. Conviction and Sentencing
In 2013, a jury convicted Bivins of one count of possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).
Bivins’s presentence investigation report (“PSI”) stated that Bivins had three
prior convictions that qualified him as an armed career criminal under the ACCA
and U.S.S.G. § 4B1.4. The PSI identified these three Florida felony convictions:
(1) a 1994 conviction for aggravated assault; (2) a 1996 conviction for aggravated
assault with a deadly weapon; and (3) 1997 convictions for possession of cocaine
with intent to deliver or sell and possession of marijuana with intent to deliver or
sell. As an armed career criminal, Bivins was subject to a mandatory minimum
15-year sentence and a statutory maximum term of life. In addition, Bivins’s
advisory guidelines range was increased from 84 to 105 months’ to 235 to 293
months’ imprisonment.
At his April 25, 2013 sentencing hearing, Bivins did not object to his
designation as an armed career criminal or argue that his Florida aggravated assault
convictions did not qualify as violent felonies under the ACCA. Indeed, in
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addressing the sentencing court, Bivins acknowledged that he was an armed career
criminal, but pointed out that he was a juvenile when he committed his prior
felonies, and asked the sentencing court to give him only the 180 months’
mandatory minimum sentence. The district court found that Bivins’s advisory
guidelines range was 235 to 293 months’ imprisonment and imposed a 235-month
sentence. The PSI, the parties, and the sentencing court did not reference or
discuss under which clause of the ACCA any of Bivins’s prior felony convictions
qualified as violent felonies.
B. Direct Appeal
On direct appeal, Bivins raised two trial issues and argued that his 235-
month sentence was substantively unreasonable, but he did not challenge his status
as an armed career criminal under the ACCA and U.S.S.G. § 4B1.4. See United
States v. Bivins, 560 F. App’x 899, 905-08 (11th Cir. 2014). This Court affirmed
Bivins’s conviction and sentence. Id. at 908.
C. Section 2255 Proceedings
After Bivin’s direct appeal, the Supreme Court issued Johnson v. United
States, which invalidated the ACCA’s residual clause as unconstitutionally vague.
See Johnson, 576 U.S. ___, ____, 135 S. Ct. 2551, 2563 (2015).
On June 23, 2016, Bivins filed his counseled § 2255 motion, arguing that
after Johnson, his prior Florida convictions for aggravated assault no longer
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qualified as violent felonies under the ACCA. 1 Bivins did not contend that in 2013
the sentencing court had relied on the now-void residual clause to impose his
ACCA-enhanced sentence. Instead, Bivins argued that now, under current law, his
aggravated assault convictions could not qualify under either the elements clause
or the enumerated offenses clause of the ACCA.
On November 3, 2017, a magistrate judge issued a report recommending that
Bivins’s motion be denied. The report noted that Bivins did not dispute that his
prior conviction for possession of cocaine and marijuana with intent to sell or
deliver was a predicate offense under the ACCA. The report concluded that
Bivins’s two Florida aggravated assault convictions qualified as violent felonies
under the ACCA’s elements clause, citing Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328, 1338 (11th Cir. 2013). The report rejected Bivins’s
argument that Turner was wrongly decided, and explained that in United States v.
Golden, 854 F.3d 1256, 1257 (11th Cir.), cert. denied, ___ U.S. ___, 138 S. Ct. 197
(2017), this Court had recently said Turner remained binding precedent.
Over Bivins’s objection, the district court adopted the report and denied
Bivins’s § 2255 motion. In the same order, the district court sua sponte granted
Bivins a certificate of appealability (“COA”) as to “[w]hether the Movant’s
conviction for Florida aggravated assault, pursuant to Fla. Stat. § 784.021, qualifies
1
In the district court, the government conceded that Bivins’ § 2255 motion was timely
under 28 U.S.C. § 2255(f)(3). Therefore, we do not address the timeliness issue.
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as a violent felony under the elements clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(i).”2
II. DISCUSSION
A. Standard of Review
In reviewing a district court’s denial of a § 2255 motion, this Court reviews
the district court’s legal conclusions de novo and its factual findings for clear error.
Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). We review de novo
whether a prior conviction is a predicate offense within the meaning of the ACCA.
United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). Regardless of
the grounds stated in the district court’s order or judgment, this Court may affirm
on any ground supported by the record. Castillo v. United States, 816 F.3d 1300,
1303 (11th Cir. 2016).
B. General Principles
The ACCA provides that a person convicted under 18 U.S.C. § 922(g) faces
a fifteen-year mandatory minimum prison term if he has three or more prior
convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).
2
We note that the district court’s COA does not specify an underlying constitutional issue
as required by 28 U.S.C. § 2253(c) and Spencer v. United States, 773 F.3d 1132, 1137-38 (11th
Cir. 2014) (en banc). Nonetheless, given that Bivins’s § 2255 motion based on Johnson raised a
constitutional issue—whether Bivins was sentenced under the unconstitutionally vague residual
clause of the ACCA—and given that the parties have briefed that constitutional issue on appeal,
we sua sponte expand the COA accordingly.
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The 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 referred to as the
“elements” clause, while the second prong contains the “enumerated crimes”
clause and what is commonly called the “residual” clause. United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012).
In Johnson, the Supreme Court held that the ACCA’s residual clause was
unconstitutionally vague. 576 U.S. at ___, 135 S. Ct. at 2557-58, 2563. The
Supreme Court clarified, however, that its decision did not call into question the
application of the ACCA’s elements or enumerated crimes clauses. Id. at ___, 135
S. Ct. at 2563. Subsequently, the Supreme Court held that Johnson announced a
new substantive rule that applied retroactively to cases on collateral review. Welch
v. United States, 578 U.S. ___, ___, 136 S. Ct. 1257, 1268 (2016).
C. Movant’s Burden
While Bivins’s § 2255 motion was pending in the district court, this Court,
in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), addressed what a
§ 2255 movant must show to be entitled to relief under Johnson. To assert a claim
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based on Johnson, the movant must contend that he was sentenced under the
ACCA’s now-void residual clause. Beeman, 871 F.3d at 1221. A claim that the
movant was incorrectly sentenced under the ACCA’s elements or enumerated
crimes clauses is not a Johnson claim but rather a Descamps claim. 3 Id. at 1220.
To prevail on a Johnson claim, “the movant must show that—more likely
than not—it was use of the residual clause that led to the sentencing court’s
enhancement of his sentence.” See Beeman, 871 F.3d at 1221-22. “If 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.
Each case must be judged on its own record, and different kinds of evidence
can be used to show that a sentencing court actually relied on the residual clause.
Id. at 1224 n.4. For example, 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, a record may contain sufficient
circumstantial evidence, such as un-objected-to recommendations in the PSI that
the enumerated offenses clause or the elements clause did not apply or concessions
by the prosecutor that those two clauses did not apply. Id. In addition, the movant
3
Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276 (2013).
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may point to precedent at the time of sentencing “holding, or otherwise making
obvious,” that the prior conviction “qualified as a violent felony only under the
residual clause.” Id. at 1224.
This inquiry is a question of “historical fact”—whether at the time of
sentencing the defendant was sentenced solely under the ACCA’s residual clause.
Id. at 1224 n.5. A decision today that a prior conviction “no longer qualifies under
present law as a violent felony under the elements clause (and thus could now
qualify only under the defunct residual clause) would be a decision that casts very
little light, if any, on the key question of historical fact . . . .” Id. at 1224 n.5.
In short, a § 2255 movant carries his burden of proof “only (1) if the
sentencing court relied solely on the residual clause, as opposed to also or solely
relying on either the enumerated offenses clause or elements clause (neither of
which were called into question by Johnson) to qualify a prior conviction as a
violent felony, and (2) if 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. at 1221. If the record is unclear or silent as to whether
the sentencing court relied on the residual clause, then the movant has not met his
burden, and his claim must be denied. Id. at 1224-25.
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D. Bivins’s Johnson Claim
Here, Bivins does not dispute that at the time of his 2013 sentencing, his
1997 Florida conviction for possession of cocaine and marijuana with intent to sell
or deliver qualified as a serious drug offense under 18 U.S.C. § 924(e)(2)(A).
Thus, Bivins can make out a Johnson claim only if he can point to some evidence
that the sentencing court relied on the now-void residual clause to find that his
other two ACCA predicate convictions, both for Florida aggravated assault,
qualified as violent felonies.
On appeal, Bivins concedes, and we agree, that the record “is completely
silent” as to which clause of the ACCA the sentencing court relied on to find that
his aggravated assaults were violent felonies. The PSI identified the three
predicate convictions, but did not state under which clause of the ACCA any of the
three convictions qualified as predicates. At the sentencing hearing, the parties did
not discuss the issue, and the sentencing court did not make any explicit findings
about the ACCA predicates because Bivins’s armed-career-criminal status was not
in dispute.
Finally, Bivins does not direct the Court’s attention to any precedent from
the time of his 2013 sentencing holding, or otherwise making obvious, that his
Florida aggravated assault convictions qualified as violent felonies only under the
residual clause. To the contrary, Bivins admits that two months before his
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sentencing, this Court issued its decision in Turner, which held that Florida
aggravated assault qualified as a violent felony under the ACCA’s elements clause.
See Turner, 709 F.3d at 1337-38.
In other words, it is at least as likely, if not more so, that the sentencing
court, in light of this Court’s Turner, determined that Bivins’s Florida aggravated
assault convictions qualified under the elements clause. Under these
circumstances, Bivins has not proved that it is more likely than not that he was
sentenced as an armed career criminal under the now-void residual clause. See
Beeman, 871 F.3d at 1225. Because under our Beeman precedent Bivins failed to
carry his burden of proof, the district court did not commit reversible error in
denying his § 2255 motion.
E. Florida Aggravated Assault
Alternatively, even without Beeman and even if we examined Bivins’s
Florida aggravated assault conviction under current law (rather than as a historical
fact), Bivins has not shown that his two Florida aggravated assault convictions are
not violent felonies under the ACCA’s elements clause.
To qualify under the ACCA’s elements clause, a felony crime must “ha[ve]
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). The Supreme Court has held that
the phrase “physical force” in the elements clause means violent force, or “force
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capable of causing physical pain or injury to another person.” Curtis Johnson v.
United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).
Under Florida law, an aggravated assault occurs when the defendant
commits an “assault,” either with a deadly weapon without intent to kill or with the
intent to commit a felony. Fla. Stat. § 784.0121 (1)(a)-(b). An assault, in turn, is
defined by Florida law as “an intentional, unlawful threat by word or act to do
violence to the person of another, coupled with an apparent ability to do so, and
doing some act which creates a well-founded fear in such other person that such
violence is imminent.” Fla. Stat. § 784.011 (1) (emphasis added).
As mentioned above, this Court held in Turner that Florida aggravated
assault necessarily includes as an element the threatened use of physical force and
thus satisfies the ACCA’s elements clause. See Turner, 709 F.3d at 1338
(concluding that Florida aggravated assault will always include as an element the
threatened use of physical force because “by its definitional terms, the offense
necessarily includes an assault, which is an intentional unlawful threat by word or
act to do violence to the person of another, coupled with an apparent ability to do
so” (quotation marks omitted)).
Although Bivins argues that Turner was wrongly decided, this Court has
repeatedly affirmed that Turner remains binding precedent. See, e.g., Golden, 854
F.3d at 1257 (concluding that Florida aggravated assault constitutes a crime of
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violence under the identical elements clause in U.S.S.G. § 4B1.2); see also United
States v. Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018) (concluding that a
defendant’s argument that Florida aggravated assault is not a violent felony under
the ACCA’s elements clause is foreclosed by Turner). Thus, Bivins still has three
qualifying ACCA predicate offenses and remains, even under current law, an
armed career criminal under the ACCA.
III. CONCLUSION
For these reasons, Bivins has not shown that he is entitled to relief under
Johnson. Accordingly, we affirm the district court’s denial of his § 2255 motion
challenging his ACCA sentence based on Johnson.
AFFIRMED.
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