Case: 18-14430     Date Filed: 06/30/2020    Page: 1 of 9



                                                               [DO NOT PUBLISH]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, 

(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.
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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

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, 

, 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, 

, 26 (2005).
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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 

, 2563; see also Welch v. United

States, 

, 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.
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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, 

(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, 

(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.

The “key question” is the “historical fact”

of whether the defendant was “sentenced solely per the residual clause.”

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, 

, 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, 

, 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, 

(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, 

(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.

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.

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, 

, 213-15 & n.2 (4th Cir. 2019). We, of course, are
bound to follow Gundy. See United States v. Brown, 

, 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,

, 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, 

, 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 

. He

therefore is not entitled to relief on his § 2255 motion. See

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.

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