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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10044
________________________
D.C. Docket Nos. 6:16-cv-01132-GKS-DCI; 6:12-cr-00312-GKS-DAB-1
ANTHONY MARVIN BRUTEN,
Petitioner - Appellant
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 14, 2020)
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Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL, ∗ District Judge.
PER CURIAM:
Anthony Marvin Bruten, a federal prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate his sentence. This Court granted
Bruten a certificate of appealability on one issue: whether the district court erred
in dismissing Bruten’s motion as procedurally barred by concluding that the
government could rely on prior convictions in the Presentence Investigation Report
(“PSR”) as predicate offenses under the Armed Career Criminal Act (“ACCA”),
despite the fact that neither the PSR nor the sentencing court explicitly found those
other convictions to be ACCA predicates. After careful review, with the benefit of
oral argument, and because of this Court’s decision in Tribue v. United States, 929
F.3d 1326 (11th Cir. 2019), we affirm.
I. BACKGROUND
Bruten pled guilty pursuant to a plea agreement to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1).1 The plea agreement
stated:
∗ Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
1
Because we write for the parties, who are familiar with the facts, we recount only the
facts that are necessary to understand our disposition of this appeal.
2
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BRUTEN admits he has been convicted of the following felonies,
which include three felonies that BRUTEN admits qualify him as an
Armed Career Criminal:
1. Sale of Cocaine, in . . . Florida . . . , on or about August 17,
2011;
2. Flee or Attempt to Elude, in . . . Florida . . . , on or about
November 10, 2009;
3. Sale or Possession of Cocaine with Intent to Sell within 1000
Feet of a School, in . . . Florida . . . ; and
4. Aggravated Assault, in . . . Florida . . . , on or about November
4, 2004.
Crim. Doc. 35 at 21.2
In preparation for sentencing, the probation office prepared a PSR. The PSR
stated that Bruten was subject to an enhanced sentence under ACCA because he
had “at least three prior convictions for a violent felony or serious drug offense, or
both, that were committed on occasions different from one another.” PSR at ¶ 23;
see 18 U.S.C. § 924(e)(1). The PSR specifically listed three qualifying
convictions: (1) aggravated assault in 2004; (2) sale/possession of cocaine within
1,000 feet of a school in 2005; and (3) fleeing and eluding in 2009. The PSR listed
(and assigned criminal history points to) several other Florida convictions in the
2
Citations to “Crim. Doc. #” refer to numbered entries on the district court’s docket in
Bruten’s Middle District of Florida criminal case, No. 6:12-cr-312-GKS-DAB-1. The
Presentence Investigation Report prepared in this case is cited as “PSR.”
Citations to “Civ. Doc. #” refer to numbered entries on the district court’s docket in
Bruten’s Middle District of Florida § 2255 proceedings.
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criminal history section, including: sale/delivery of a controlled substance
(cocaine) in 1998; manufacture of cocaine in 2004; and sale of cocaine within
1,000 feet of a public park in 2009.
Neither Bruten nor the government objected to the convictions listed in the
PSR, which the district court adopted. At sentencing, the district court found that
the ACCA enhancement applied, but did not state which of Bruten’s convictions
formed the basis of the enhancement. The district court sentenced Bruten to 180
months’ imprisonment.
Bruten did not file a direct appeal. Rather, he filed the instant § 2255 motion
to vacate. In his motion, Bruten argued that his ACCA-enhanced sentence was
unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). ACCA
provides for an enhanced sentence if a person convicted of a § 922(g) offense
previously has been convicted of three “violent felon[ies],” “serious drug
offense[s],” or both. See 18 U.S.C. § 924(e)(1). In Johnson, the Supreme Court
held that one of the “violent felony” definitions, the “residual clause,” was
unconstitutionally vague in violation of due process. 135 S. Ct. at 2557. After
Johnson a violent felony is “any crime punishable by imprisonment for a term
exceeding one year” that either (1) “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), the “elements clause,” or (2) “is burglary, arson, or extortion,
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[or] involves use of explosives,” id. § 924(e)(2)(B)(ii), the “enumerated crimes
clause.” “Serious drug offense,” unaffected by Johnson, means either any offense
under the Controlled Substances Act or similar federal law or “an offense under
State law, involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in section 102 of the
Controlled Substances Act), for which a maximum term of imprisonment of ten
years or more is prescribed by law.” Id. § 924(e)(2)(A)(i), (ii).
In support of his § 2255 motion Bruten argued that his convictions for
aggravated assault and fleeing and eluding no longer qualified as ACCA predicate
offenses in light of Johnson’s holding, and that without those convictions he lacked
sufficient qualifying convictions. In response, the government argued that
Bruten’s Johnson claim was subject to a procedural default because he did not
raise it on direct appeal, and he could not show cause or prejudice to overcome the
default. Bruten could not show cause, the government argued, because although
circuit precedent foreclosed his claim at the time of his direct appeal, there was no
impediment to his asserting the challenge he brought in his § 2255 motion. As to
prejudice, the government conceded that Bruten’s fleeing and eluding conviction
no longer qualified as a “violent felony,” but it argued that Bruten had at least three
qualifying convictions notwithstanding Johnson. Binding circuit precedent
established that his 2004 conviction for aggravated assault qualified as a violent
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felony under ACCA’s elements clause. See Turner v. Warden, 709 F.3d 1328,
1338 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S. Ct. 2551.
And Bruten had four prior convictions for serious drug offenses, including the
1997 sale/delivery of cocaine, 2004 manufacture of cocaine, 2005 sale of cocaine
within 1,000 feet of a school, and 2008 sale of cocaine within 1,000 feet of a public
park.
The district court agreed with the government’s assessment of prejudice3 and
denied Bruten’s § 2255 motion. The district court found that Bruten “has five prior
convictions for violent felonies or serious drug offenses that still qualify under the
ACCA,” including the four drug convictions and the aggravated assault conviction.
Civ. Doc. 19 at 4-5. Bruten has appealed.
II. STANDARD OF REVIEW
When reviewing the district court’s ruling on a § 2255 motion, we review
findings of fact for clear error and questions of law de novo. Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2009). We may affirm on any ground
supported by the record. Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir.
2016) (internal quotation marks and citation omitted).
III. DISCUSSION
3
The district court did not address whether Bruten had demonstrated cause to overcome
the procedural default.
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Bruten argues that the district court erred in concluding that his claim was
procedurally defaulted. He argues that the district court was permitted to rely only
on the convictions listed in his PSR as ACCA predicates to determine his
eligibility for relief and that, now that one of the three listed ACCA predicates does
not qualify as a violent felony, he must be resentenced.4 He argues that the district
court’s reliance on other prior convictions runs afoul of United States v. Canty, in
which this Court held that the government’s “fail[ure] to voice any objection that
the sentencing court had not made any findings as to which of [the defendant’s]
convictions were predicates for the ACCA enhancement” made “further findings
. . . inappropriate.” 570 F.3d 1251, 1257 (11th Cir. 2009).
After this case was fully briefed, but before we held oral argument, this
Court rejected the theory Bruten advances. See Tribue, 929 F.3d at 1331-34. In
Tribue, as here, the § 2255 movant’s PSR designated him as an armed career
criminal under ACCA and specifically listed three predicates, one of which was
fleeing and eluding under Florida law. Id. at 1328. The PSR also included a
criminal history section, which listed “several additional prior Florida
convictions.” Id. Tribue represented to the district court that he had no objections
to the PSR and, as here, the district court did not state which of Tribue’s prior
4
Bruten also argues that he can demonstrate cause to overcome the procedural default.
We need not address his argument, however, because under Tribue Bruten cannot establish
prejudice.
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convictions it relied upon when it imposed the ACCA enhancement. See id. at
1328-29. Tribue, like Bruten, did not file a direct appeal, but filed a § 2255 motion
challenging his ACCA-enhanced sentence after the Supreme Court’s decision in
Johnson, arguing that his fleeing and eluding conviction no longer qualified as an
ACCA predicate and therefore that he lacked the requisite three predicates. See id.
at 1329-30. Tribue, citing Canty, 570 F.3d at 1256, “asserted that the government
effectively waived reliance on the use of any other prior convictions listed in the
PS[R],” because:
(1) The PS[R] identified only three specific convictions as ACCA
predicates, (2) at sentencing, the government did not object to the PS[R]
or state its reliance on any of Tribue’s other prior convictions as ACCA
predicates, and (3) the sentencing court adopted the PS[R] without
change.
Id. at 1330. The district court rejected Tribue’s argument and relied on other prior
convictions to sustain his ACCA-enhanced sentence.
This Court affirmed. We held that a § 2255 movant cannot satisfy his
burden to demonstrate entitlement to relief under Johnson when he has three
qualifying convictions notwithstanding Johnson and that the government can rely
on (and present evidence about) those additional prior convictions to defeat a
movant’s claim. Id. at 1331-32. We held that Canty, in which the defendant had
objected to his ACCA classification at sentencing, was materially distinguishable
and therefore did not support Tribue’s waiver argument. Id. at 1333-34; see also
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id. at 1334 (distinguishing a case similar to Canty, Bryant v. Warden, 738 F.3d
1253 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of
Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc)).
Tribue is factually and legally on point with this case and therefore dictates
its outcome. Under Tribue, Bruten has not satisfied his burden to show entitlement
to relief because, notwithstanding Johnson, he has three ACCA-qualifying
convictions: aggravated assault 5 and four “serious drug offenses.” Indeed, Bruten
concedes that he has at least three qualifying offenses even after Johnson.
Bruten’s argument for relief hinges on his assertion that the government has
waived reliance on his other convictions, but Tribue rejected this theory even
though there, as here, the PSR listed three ACCA-qualifying offenses, the
government did not object to the PSR or rely on any other convictions to support
the enhancement, and the sentencing court adopted the PSR without change. See
id. at 1332.
Bruten acknowledges Tribue’s holding but argues that his case is
distinguishable. Specifically, he contends that unlike in Tribue, he and the
government agreed in his plea agreement that he had “three felonies that . . .
5
Although he acknowledges that his argument is foreclosed by precedent, Bruten
challenges the district court’s determination that his aggravated assault conviction remains a
valid predicate. See Turner, 709 F.3d at 1338. Even in the absence of this precedent, we would
affirm the district court based on Bruten’s qualifying serious drug offenses.
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qualify him as an Armed Career Criminal,” Crim. Doc. 35 at 21, and that the
government is bound to this limited number. Bruten’s argument may have had
merit if his plea agreement had stated that Bruten had “only three felonies” that
qualified him as an armed career criminal, but the plea agreement was not so
limited. So, Bruten’s plea agreement does not put him on different footing than
Tribue.
Bruten alternatively argues that Tribue was wrongly decided. But as a three-
judge panel we are bound to follow Tribue. United States v. Brown, 342 F.3d
1245, 1246 (11th Cir. 2003).
For these reasons, the district court correctly denied Bruten’s § 2255 motion.
We therefore affirm.
AFFIRMED.
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