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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-15879
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-01939-TWT,
1:08-cr-00403-TWT-JFK-1
DERRICK G. CARMICHAEL,
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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(January 28, 2019)
Before MARTIN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Derrick Carmichael appeals the denial of his 28 U.S.C. § 2255 motion to
vacate his sentence. Carmichael argues that his sentence was unconstitutionally
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enhanced under the Armed Career Criminal Act (“ACCA”) residual clause, which
the Supreme Court struck down as void for vagueness in Johnson v. United States,
135 S. Ct. 2551 (2015). While this appeal by Carmichael was pending, we issued
Beeman v. United States, which set forth a § 2255 movant’s burden of proof when
seeking relief under Johnson. See 871 F.3d 1215 (11th Cir. 2017). After careful
review, we vacate and remand to the district court to apply the Beeman test in the
first instance.
I.
In 2009, Carmichael pled guilty to firearm possession by a felon in violation
of 18 U.S.C. § 922(g). He was sentenced to the mandatory minimum of fifteen
years’ imprisonment under the ACCA, which enhances the sentence of a defendant
with three or more “violent felony” or “serious drug offense” convictions. 18
U.S.C. § 924(e)(1). Carmichael’s sentence enhancement was based on three felony
convictions under Georgia’s aggravated assault statute, as well as one conviction
for cocaine possession with intent to distribute.
At the time that Carmichael was sentenced, the ACCA defined “violent
felony” as any crime punishable by more than a year’s imprisonment that:
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
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(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.
Id. § 924(e)(2)(B). The first subsection is known as the “elements clause,” while
the second contains the “enumerated offenses clause” and, in italics, the “residual
clause.” On June 26, 2015, Johnson struck down the residual clause as
unconstitutionally vague; the Supreme Court later held that Johnson was
retroactively applicable to cases on collateral review. Welch v. United States, 136
S. Ct. 1257, 1265 (2016).
Less than a year after Johnson was decided, Carmichael filed a motion
arguing that his convictions for Georgia aggravated assault did not qualify as
violent felonies under the elements clause or the enumerated offenses clause, and
thus could not satisfy the ACCA except through the residual clause that had been
deemed unconstitutional in Johnson. The district court denied his motion, but
granted a certificate of appealability on three issues: whether the motion was time-
barred because it failed to state a Johnson claim, whether it was procedurally
defaulted, and whether the Georgia crime of aggravated assault is a violent felony
under the ACCA elements clause.
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II.
Our decision in Beeman, issued after the district court’s decision in this case,
provides a roadmap for evaluating § 2255 claims like Carmichael’s. 1 First, we
clarified that in order to state a claim under Johnson, the movant must allege that
he was unconstitutionally sentenced under the residual clause, not that he was
incorrectly sentenced under the elements or enumerated offenses clauses. Second,
we held that a Johnson claim brought before the one-year anniversary of the
Supreme Court’s Johnson decision—that is, before June 26, 2016—is timely under
28 U.S.C. § 2255(f)(3). Third, we determined that to prove a Johnson claim on the
merits, “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.”
Beeman, 871 F.3d at 1222. “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,” the movant has failed to carry his burden. Id. In other words, if
“the evidence does not clearly explain what happened . . . the party with the burden
loses.” Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.
2001).
1
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).
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Moreover, whether a movant was sentenced under the residual clause is an
issue of “historical fact.” Id. at 1224 n.5. Evidence of that historical fact may
include “comments or findings by the sentencing judge indicating that the residual
clause was relied on,” “statements in the [presentence investigation report],” or
“concessions by the prosecutor that those two other clauses do not apply to the
conviction in question.” Id. at 1224 n.4. A movant may also proffer as evidence
case law “holding, or otherwise making obvious, that [the predicate offense]
qualified as a violent felony only under the residual clause” at the time of his
sentencing. Id. at 1224. For instance, if a case predating the movant’s sentencing
held that one of his predicate offenses could not satisfy the ACCA elements or
enumerated offenses clauses, it would be evidence that—by process of
elimination—the sentencing court must have relied on the residual clause.
Because the inquiry concerns the “historical fact” of whether the movant was
actually sentenced under the residual clause, case law handed down after
sentencing “casts very little light” on the issue. Id. at 1224 n.5.
III.
The Government now concedes, and we agree, that Carmichael has raised a
timely Johnson claim. Carmichael’s § 2255 motion, which he filed before the
Johnson decision’s one-year anniversary, stated a Johnson claim using the same
language we deemed sufficient in Beeman. The Government has also agreed to
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waive its procedural default defense. See In re Jackson, 826 F.3d 1343, 1348 (11th
Cir. 2016) (“[T]he procedural-default rule is not jurisdictional, but is an affirmative
defense that is subject to waiver by the government.” (citation omitted)).
The sole issue on appeal is whether Carmichael was, as a matter of historical
fact, sentenced under the unconstitutional residual clause. Because the district
court had no opportunity to apply the new standard articulated in Beeman, the
record is not fully developed on this point. And we cannot say, as we did in
Beeman, that Carmichael has “pointed to no precedent in 2009” that could have led
a court to sentence him only under the residual clause. Beeman, 871 F.3d at 1224.
Accordingly, we find that a remand is appropriate. See Whatley v. Warden, Ware
State Prison, 802 F.3d 1205, 1213 (11th Cir. 2015) (“[W]e are a court of appeals.
We do not make fact findings. We review them for clear error.”). On remand, the
district court should consider in the first instance whether Carmichael can show, as
a historical fact, that he was more likely than not sentenced under the residual
clause.
VACATED AND REMANDED.
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