OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE'S REPORT, OVERRULING OBJECTIONS, AND GRANTING MOTION TO VACATE

PATRICIA A. SEITZ, District Judge.

THIS MATTER is before the Court on Judge White's Report [DE-14], which recommends granting Ralph Curry's 28 U.S.C. § 2255 motion [DE-10] and resentencing Curry without an Armed Career Criminal Act ("ACCA") enhancement, pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). The Government objects that Curry has not established that he was sentenced in reliance on the ACCA's residual clause held unconstitutional in Johnson and is therefore not entitled to relief [DE-15]. The Court has reviewed de novo the parties' submissions, the record, and the law and finds the Government's argument and the authority upon which it relies unpersuasive. Accordingly, the Court overrules the Government's Objections, affirms and adopts the Report, and grants Curry's Motion to vacate his ACCA-enhanced sentence. A resentencing hearing shall be held as ordered below.

I. BACKGROUND

The procedural history is set out in the Report and is incorporated by reference. In relevant part, Curry was found guilty after a 2005 jury trial of possession with intent to distribute cocaine base (Count 1) and cocaine (Count 2),1 carrying a firearm during and in relation to a drug trafficking crime (Count 3), and felon in possession of a firearm (Count 4). The Criminal History section of Curry's Presentence Investigation Report ("PSI") included several prior convictions. Relevant felony convictions include one Florida conviction for possession with intent to distribute cocaine; one Florida conviction for burglary of a structure; one Florida conviction for burglary of a dwelling; two Florida convictions for grand theft; and three counts of conviction for Georgia aggravated assault which occurred on the same occasion.

The PSI also indicated that Curry qualified as an Armed Career Criminal under the ACCA.2 The ACCA provides for enhanced penalties for violations of 18 U.S.C. § 922(g)—here, Curry's conviction for felon in possession of a firearm (Count 4)—where the defendant has three prior convictions for a serious drug offense or a crime of violence. 18 U.S.C. § 924(e). A "crime of violence" under the ACCA was defined at the time as any crime punishable by imprisonment for a term exceeding one year that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, or involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B) (2005). These three clauses are known respectively as the "elements clause," the "enumerated clause," and the "residual clause." Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016).

At his November 9, 2005 sentencing, the Court designated Curry an Armed Career Criminal without specifying which prior convictions the Court relied on to reach that determination.3 The Court sentenced Curry to the bottom of the ACCA-enhanced sentencing guidelines of 262 months imprisonment for Counts 1, 2, and 4, and to the statutory minimum 60 months imprisonment, consecutive, for Count 3.4 Thus, in total, Curry was sentenced to 322 months imprisonment.

On June 26, 2015, in Johnson v. United States, the U.S. Supreme Court held that imposing an ACCA-enhanced sentence in reliance on the residual clause is unconstitutional. See 135 S.Ct. 2551, 2563 (2015). The ACCA's elements and enumerated clauses remain valid. Id. On April 1, 2016, the Supreme Court held Johnson applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

Curry timely filed a pro se motion for leave from the Eleventh Circuit to pursue a second collateral appeal asserting he was entitled to relief pursuant to Johnson [DE-1].5 On July 1, 2016, the Eleventh Circuit held that Curry made a prima facie showing that this Court may have relied on the now-voided residual clause in sentencing Curry to an enhanced ACCA sentence. In re Ralph Curry, Case No. 16-13221 (11th Cir. July 1, 2016). Accordingly, the Eleventh Circuit granted Curry leave to file a successive habeas petition pursuant to Johnson and 28 U.S.C. §2255(h). Id. This Court referred Curry's petitioner to Magistrate Judge White, who appointed counsel for Curry and received submissions from both parties regarding Curry's eligibility for relief pursuant to Johnson [DE-5]. Over Government opposition, Judge White found that Curry met his burden to prove that he may have received an enhanced sentence under the ACCA in reliance on the now-voided residual clause and that, under current law, Curry no longer has sufficient predicates to qualify as an Armed Career Criminal [DE-14]. Accordingly, Judge White recommended resentencing Curry without the ACCA enhancement. Id. The Government timely filed Objections to the Report [DE-15].

II. ANALYSIS

The record does not clearly indicate the three predicates the Court relied on to sentence Curry as an Armed Career Criminal. Thus, the record is also silent as to whether the Court relied on the elements, enumerated, or the now-voided residual clause. It is undisputed that two of Curry's prior convictions survive Johnson and still qualify as ACCA predicates: his conviction for Florida possession with intent to distribute cocaine remains a "serious drug offense" within the meaning of 18 U.S.C. § 924(e)(2)(A)(ii), and his convictions for Georgia aggravated assault remain an ACCA "crime of violence" under the elements clause. 18 U.S.C. § 924(e)(1)-(2)(B)(i); Curry, Case No. 16-13221, p. 5. In contrast, Curry's convictions for grand theft did not survive Johnson because they are not drug offenses, do not involve the use or threat of force, and are not enumerated felonies. Curry, p. 5-6. As a result, Curry's Florida burglary convictions remain the only possible third predicates—and the heart of the instant dispute.

A. Standards

While there is no dispute that Curry, as the movant, has the burden under 28 U.S.C. § 2255(h), the applicable standard is unsettled. The Government contends the undisputed ambiguity of the record alone defeats Curry's claim because: (1) Curry cannot establish a "reasonable likelihood" that the sentencing Court relied on the residual clause "in fact," and (2) Curry's burglary convictions qualified as "crimes of violence" under the enumerated clause as of his 2005 sentencing and he is not entitled to rely on subsequent precedent holding otherwise [DE-15]. In support of this exacting standard, the Government cites dicta from In re Moore, in which the Eleventh Circuit stated:

830 F.3d 1268, 1273 (11th Cir. 2016); see also Ziglar v. United States, 2016 WL 4257773, at *1 (M.D. Ala. 2016) (denying successive Johnson petition pursuant to Moore approach).

A more recent Eleventh Circuit opinion, In re Chance, directly repudiates the dicta the Government relies on in Moore. 831 F.3d 1335, 1340 (11th Cir. 2016). While also dicta, the Chance panel states Moore's approach is wrong because it imposes an unfair burden on movants and implies district courts should ignore recent Supreme Court decisions such as Descamps v. United States, 133 S.Ct. 2276 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016),6 "unless the sentencing judge uttered the magic words `residual clause.'" Id. at 1340-41.

The Court finds Chance persuasive and declines to follow Moore's suggestion that successive petitioners must prove the Court relied upon the ACCA residual clause "in fact" at sentencing. Moore's proposed standard is especially unjust because it essentially requires movants—mostly pro se prisoners—to prove a negative. See Chance, 831 F.3d at 1340-41 (noting before Johnson there was little reason for a judge to specify which clause—residual, enumerated, or elements—was relied on in imposing an ACCA-enhanced sentence). Moreover, the Court finds untenable the Government's position that the Court should ignore current binding precedent and instead apply the law at Curry's 2005 sentencing to determine whether Curry's burglary convictions qualified as "crimes of violence" under the enumerated clause. Id. at 1340.

As the Eleventh Circuit pointed out, Curry raises "a true Johnson claim." Curry, p. 6-7 (differentiating Curry's claim from that of a successive petitioner impermissibly seeking relief pursuant to Descamps alone). Therefore, once Curry establishes that he may have been sentenced in violation of Johnson— a new rule of constitutional law made retroactive on collateral review in Welch— he is entitled to consideration on the underlying merits of his claim informed by recent U.S. Supreme Court opinions, including Descamps and Mathis. See In re Rogers, 825 F.3d 1335, 1339 (11th Cir. 2016) (holding that "courts must apply Descamps and other binding Supreme Court precedent in determining whether a prior conviction would still support an enhanced ACCA sentence" after Johnson); In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016) (applying Descamps retroactively to evaluate a successive Johnson claim); but see In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016) (holding that Johnson cannot serve as a portal to challenge ACCA predicates invalidated by Descamps). Any other approach would require this Court to apply stale precedent already declared mistaken by the nation's highest court.

Applying this approach, Curry is entitled to relief if he can establish by a preponderance of the evidence that: (1) the record does not refute his assertion that the sentencing Court may have relied on the residual clause in applying the ACCA enhancement, in violation of Johnson, and (2) under current binding precedent—including but not limited to Johnson, Mathis, and Descamps— his Florida burglary convictions no longer qualify as ACCA "crimes of violence." See Leonard v. United States, 2016 WL 4576040, at *3 (S.D. Fla. Aug. 22. 2016) (applying similar test in granting successive Johnson-based petition); Simmons v. United States, 2016 WL 4536092, at *1 (S.D. Fla. Aug. 31, 2016) (same).7

B. Application

The record's undisputed ambiguity is sufficient for Curry to meet the first prong of his burden pursuant to Chance. Nothing in the record refutes Curry's assertion that the sentencing Court may have relied on the residual clause in applying the ACCA enhancement, in violation of Johnson.8 As to the second prong, the Government in this case declined to posit whether Curry's Florida burglary convictions remain ACCA "crimes of violence" under current binding precedent. Nor did the Government object to Judge White's conclusion that Florida burglary is no longer an ACCA "crime of violence" pursuant to Mathis, Johnson and Descamps [DE-14, p. 18-19 (collecting cases)]. More importantly, the Government recently conceded in another case from this District that Florida burglary convictions are no longer ACCA "crimes of violence" pursuant to Mathis, Johnson and Descamps— and the Eleventh Circuit agreed. United States v. Esprit, 2016 WL 6832926, at *3-4 (11th Cir. November 21, 2016) (holding that Florida burglary convictions are categorically not ACCA "crimes of violence"). Because neither of Curry's Florida burglary convictions remain ACCA "crimes of violence," Curry no longer has sufficient predicates to qualify as an Armed Career Criminal.

III. CONCLUSION

Upon de novo review the Court finds Judge White's factual findings not clearly erroneous and his legal conclusions consistent with the proper application of the law to those facts. Accordingly, the Court adopts and affirms the Report and, pursuant to the analysis in this Order, overrules the Government's Objections. Curry has met his burden under § 2255(h) and furthermore established that he is entitled to be resentenced without the ACCA enhancement pursuant to Johnson.

Neither party objected to Judge White's recommendation that a Certificate of Appealability be denied, despite the opportunity to do so [DE-14, p. 20]. Curry's motion to vacate will be granted, correcting the constitutional error established therein and leaving Curry unable to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Therefore it is hereby

ORDERED that

DONE AND ORDERED.