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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14430
Non-Argument Calendar
________________________
D.C. Docket Nos. 6:16-cv-01143-JA-KRS,
6:05-00144-JA-KRS-1
JAMES AVERY, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 30, 2020)
Before JORDAN, JILL PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
James Avery, Jr., a federal prisoner, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, which he filed after this Court granted him
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authorization to file a second or successive such motion. Avery argues that the
district court erred in concluding that he was ineligible for relief under Johnson v.
United States, 135 S. Ct. 2551 (2015), from his Armed Career Criminal Act
(“ACCA”) sentence. After careful review, we affirm.1
I. BACKGROUND
A jury convicted Avery in 2005 of knowingly possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g). Avery’s presentence
investigation report (“PSR”) recommended that he receive an enhanced sentence
under ACCA. ACCA requires a minimum 15-year prison sentence whenever a
§ 922(g) defendant has three prior “violent felony” or serious drug convictions.
See 18 U.S.C. § 924(e). (Otherwise, the maximum sentence for a § 922(g) offense
is 10 years.) Avery’s PSR listed, among others, convictions in 1978 for Georgia
armed robbery, Georgia robbery, and Georgia burglary, and in 1987 for Florida
armed burglary and robbery with a firearm, committed on the same occasion. The
PSR did not, however, specify which of Avery’s prior convictions it relied on in
determining that he was subject to the ACCA enhancement.
At the time of Avery’s sentencing, ACCA provided three definitions of
“violent felony.” The “elements clause” covered any offense that “has as an
element the use, attempted use, or threatened use of physical force against the
1
Avery’s motion for substitution of counsel is DENIED.
2
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person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The next subsection in the statute
contained the other two definitions. See id. § 924(e)(2)(B)(ii). That subsection
defined “violent felony” as any offense that “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” The first 9 words made up the
“enumerated crimes clause,” and the last 15 comprised the catchall “residual
clause.” The enumerated crimes clause encompassed (and still encompasses) only
“generic” versions of the listed offenses—that is, offenses comporting with the
way “in which the term [i.e., burglary] is now used in the criminal codes of most
[s]tates.” Taylor v. United States, 495 U.S. 575, 598 (1990). Avery’s PSR did not
specify which ACCA clause or clauses supported the enhancement.
Avery objected to the ACCA enhancement on the ground that the
government had failed to prove he was the person who committed the crimes listed
in the PSR. At sentencing, the district court admitted certified copies of records of
several of Avery’s convictions—so-called Shepard documents 2—including, as
relevant to this appeal, his 1978 Georgia armed robbery conviction. The
government also presented extensive testimony and numerous exhibits
2
See Shepard v. United States, 544 U.S. 13, 26 (2005).
3
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demonstrating that Avery was the person who committed the crimes listed in the
PSR’s criminal history section.
The district court overruled Avery’s objections, adopted the PSR, and
imposed the ACCA enhancement. The court stated that the enhancement was
based on the Georgia robbery and armed robbery convictions and the Florida
armed burglary conviction. 3 The court did not specifically discuss which “violent
felony” definition encompassed these convictions. The court sentenced Avery to
210 months’ imprisonment.
Avery appealed, challenging his ACCA conviction on the basis that the
district court erred by applying it based on prior convictions that were neither
admitted nor proven to a jury beyond a reasonable doubt. This Court rejected
Avery’s arguments on appeal. See United States v. Avery, 205 F. App’x 819, 820,
825-26 (11th Cir. 2006) (unpublished).
After Avery’s first § 2255 motion—which involved claims not related to the
one at issue here—was rejected, the Supreme Court decided Johnson, in which it
struck down ACCA’s residual clause definition of “violent felony” as
unconstitutionally vague. 135 S. Ct. at 2557, 2563; see also Welch v. United
States, 136 S. Ct. 1257, 1268 (2016) (explaining that Johnson’s holding is
3
The district court erroneously stated that this burglary conviction was from Georgia, but
there is no dispute that it is from Florida.
4
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retroactively applicable to cases on collateral review). Avery sought authorization
in this Court to file a second or successive § 2255 motion based on Johnson. See
28 U.S.C. § 2244(b)(3). We granted him that authorization, and he filed his
motion to vacate in the district court. In support of that motion, Avery argued that
it was more likely than not that the sentencing court relied on ACCA’s residual
clause when determining that his Georgia robbery and armed robbery and Florida
armed burglary convictions were ACCA predicate offenses. He also argued that
under this Court’s precedent, see United States v. Canty, 570 F.3d 1251 (11th Cir.
2009), the government had waived reliance on any of his other prior convictions to
support the ACCA enhancement.
The government opposed Avery’s motion. As relevant to this appeal,4 the
government argued that this Court’s decision in Beeman v. United States, 871 F.3d
1215 (11th Cir. 2017), precluded Avery’s claim. In Beeman, which was decided
during Avery’s § 2255 proceedings in the district court, this Court held that a
§ 2255 movant has the burden of proving a Johnson claim by showing that (1) the
sentencing court “relied solely on the residual clause” in imposing the ACCA
enhancement and (2) “there were not at least three other prior convictions that
4
The government also argued that Avery had procedurally defaulted his Johnson claim
by failing to challenge the validity of ACCA’s residual clause during his sentencing and on
direct appeal, and that he could not show cause and prejudice to overcome the default. The
district court did not decide Avery’s motion on procedural default grounds, and we need not do
so either because Avery’s claim for relief fails on the merits.
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could have qualified under either” of ACCA’s other clauses as a violent felony, or
as a serious drug offense. Id. at 1221. The “key question” is the “historical fact”
of whether the defendant was “sentenced solely per the residual clause.” Id. at
1224 n.5. The government argued that Avery failed to prove either of these
elements. First, it argued, the record was silent as to which ACCA clause the
sentencing court relied on. Second, the government asserted, six of Avery’s prior
convictions qualified as ACCA predicates post-Johnson.
The district court denied Avery’s motion. The district court found that
Avery had failed to satisfy either of Beeman’s two requirements. Specifically, the
court determined that Avery had at least three qualifying predicate convictions
under portions of ACCA’s violent felony definition unaffected by Johnson,
rejecting Avery’s argument that Canty prevented the government’s reliance on
alternate predicate offenses. These valid predicates, the court found, included his
Florida robbery with a firearm conviction, his Georgia armed robbery conviction,
and his Georgia burglary conviction. Only the second of these was expressly
determined to be an ACCA predicate at Avery’s sentencing.
Avery appealed, and this Court granted him a certificate of appealability on
whether he met his burden to demonstrate entitlement to relief under Johnson.
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II. STANDARD OF REVIEW
In reviewing the district court’s denial of a § 2255 motion, we review de
novo the court’s legal conclusions and review for clear error the court’s factual
findings. Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en
banc).
III. DISCUSSION
Avery challenges the district court’s denial of his motion, arguing that he
satisfied both prongs of Beeman. First, he argues that he met his burden to show it
is more likely than not that the sentencing court relied solely on ACCA’s residual
clause when determining that his Florida armed burglary conviction was a violent
felony. Second, he contends that none of his other prior convictions qualify under
any still-valid ACCA “violent felony” definition. He argues that the district court
erred in concluding that his Georgia armed robbery and burglary convictions
qualified as ACCA predicates notwithstanding Johnson.5 Because we disagree
with Avery’s second argument, we conclude that he failed to satisfy Beeman, and
we do not address his first argument.
As a preliminary matter, Avery acknowledges that any challenge to the
district court’s conclusion that his Florida robbery with a firearm conviction
5
This Court has rejected Avery’s argument that the government waives reliance on other
prior convictions to support the ACCA by failing to raise them at sentencing. See Tribue v.
United States, 929 F.3d 1326, 1332 (11th Cir. 2019).
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qualifies as an ACCA predicate even after Johnson is foreclosed by Supreme Court
precedent. See Stokeling v. United States, 139 S. Ct. 544 (2019). We therefore do
not address that conviction further. As to the burglary conviction, Avery argues
that the Georgia statute criminalizing burglary in effect in 1978 when he was
arrested did not require the use, attempted use, or threatened use of physical
force—and so could not qualify under ACCA’s elements clause—and was
categorically too broad to satisfy the definition of burglary as enumerated in
ACCA. Avery’s argument is foreclosed by this Court’s decision in United States
v. Gundy, 842 F.3d 1156 (11th Cir. 2016), which held that a virtually identical later
version of Georgia’s burglary statute qualified as a predicate under ACCA’s
enumerated crimes clause. In Gundy, this Court held that Georgia’s burglary
statute, though broader than the generic definition of burglary, sets out separate
crimes based on the location the defendant entered (a dwelling, building, railroad
car, vehicle, or watercraft), some of which qualify as ACCA predicates. Id. at
1167-68.6 Avery does not dispute that the burglary of which he was convicted
involved burglary of a “building[] housing a business,” which, this Court held in
Gundy, satisfies ACCA’s definition. Id. at 1168-69. Thus, Avery has not
6
We acknowledge that the Fourth Circuit recently disagreed with Gundy and held that
Georgia’s burglary statute is categorically overbroad and therefore not a valid ACCA predicate.
See United States v. Cornette, 932 F.3d 204, 213-15 & n.2 (4th Cir. 2019). We, of course, are
bound to follow Gundy. See United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003).
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demonstrated that the district court erred in concluding that his Georgia burglary
conviction qualified as an ACCA predicate notwithstanding Johnson.
That leaves Avery’s Georgia armed robbery conviction. Avery
acknowledges that the statute under which he was convicted delineates a series of
separate robbery crimes, including robbery by intimidation. See Holcomb v. State,
198 S.E.2d 179, 180 (Ga. 1973) (citing 1968 Ga. Laws 1249). And the charging
document, which the government introduced into evidence without objection at
sentencing, demonstrated that Avery committed robbery by intimidation. Robbery
by intimidation requires the threatened use of physical force and therefore satisfies
ACCA’s elements clause. See In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016)
(construing the federal bank robbery statute, 18 U.S.C. § 2113(a)). Avery’s
Georgia robbery conviction thus qualifies as a predicate under ACCA’s elements
clause, and the district court did not err in relying on it.
Even assuming Avery satisfied Beeman’s first prong, he failed to meet his
burden to show that he lacked at least three prior convictions that qualified as
ACCA predicates notwithstanding Johnson. See Beeman, 871 F.3d at 1221. He
therefore is not entitled to relief on his § 2255 motion. See id.
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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