ANDREW L. BRASHER, District Judge.
Before the court is Petitioner Jonathan Ellis Brown's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence imposed in 2004 under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). (Doc. 1).
In June 2004, Brown pleaded guilty under a plea agreement to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). A conviction under § 922(g)(1) normally carries a sentence of not more than ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, under the ACCA, an individual who violates § 922(g) and has three or more prior convictions for a "violent felony," a "serious drug offense," or both, is subject to an enhanced sentence of not less than fifteen years. 18 U.S.C. § 924(e)(1); see also Descamps v. United States, 570 U.S. 254, 258 (2013) (noting the typical statutory maximum sentence and the ACCA's heightened mandatory minimum for § 922(g) convictions).
In 2004, when Brown was sentenced, the ACCA defined a "violent felony" 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, 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)(i) & (ii). These definitions of "violent felony" fall into three respective categories: (1) the elements clause; (2) the enumerated-offenses clause; and (3) and the (now void) residual clause. See In re Sams, 830 F.3d 1234, 1236-37 (11th Cir. 2016).
In Brown's case, the U.S. Probation Officer indicated in the presentence investigation report ("PSI") that Brown was subject to an ACCA-enhanced sentence. See Doc. 9-4 at 7, ¶ 21; id. at 17, ¶ 66. The PSI reflected that Brown had numerous prior felony convictions. However, the PSI did not specify which of these prior felony convictions qualified as predicate convictions subjecting Brown to the ACCA enhancement. Nor did the PSI specify which clause of the ACCA definition of "violent felony" any of the prior convictions fell under.
The court held Brown's sentencing hearing on August 31, 2004.
Ten years after Brown was sentenced, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Court reasoned: "[T]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law." Id. at 2557. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Johnson decision announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review.
On June 21, 2016, Brown filed this motion pursuant to § 2255 arguing that under Johnson he is entitled to be resentenced without the ACCA enhancement. (Doc. 1). Brown maintains that the sentencing court relied on the now-void residual clause to classify some of his prior felony convictions as "violent felonies" under the ACCA. He contends that when those convictions are removed from consideration, he no longer has the requisite three prior convictions for violent felonies to qualify for sentencing under the ACCA.
The Government argues that six of the prior convictions referenced by Brown in his § 2255 motion—and set forth in the PSI—qualified as violent felonies under the ACCA's elements clause and were therefore unaffected by Johnson's holding voiding the ACCA's residual clause. (Doc. 9). The Government argues that each of the following of Brown's prior convictions was a violent felony under the elements clause:
See Doc. 9 at 2-3; Doc. 9-4 at 8-12, ¶¶ 28, 30, 31, 32, 34 & 37.
After the parties filed their pleadings in this case, the Eleventh Circuit decided Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017). In Beeman, the Eleventh Circuit held that a § 2255 movant bears the burden of proving a Johnson claim, stating:
871 F.3d at 1221 (internal footnote and citation omitted). Because the "burden of proof and persuasion" was "critical" to its decision, the Eleventh Circuit in Beeman elaborated that, "[t]o prove a Johnson claim, 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." Id. at 1221-22. "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, then the movant has failed to show that his enhancement was due to use of the residual clause." Id. at 1222.
The Eleventh Circuit in Beeman emphasized that the movant must prove a "historical fact"—namely, that at the time of sentencing, the defendant was "sentenced solely per the residual clause." Id. at 1224 n.5. The Eleventh Circuit has explained that, under Beeman, "[t]o determine this `historical fact,'" the § 2255 court "look[s] first to the record" and, if the record is not determinative, "to the case law at the time of sentencing." United States v. Pickett, 916 F.3d 960, 963 (11th Cir. 2019). "Sometimes the answer will be clear—`[s]ome sentencing records may contain direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential.'" Id. (quoting Beeman, 871 F.3d at 1224 n.4). The court "might also look elsewhere in the record, to a PSI, for example, to find `circumstantial evidence.'" Id. at 963-64 (quoting Beeman, 871 F.3d at 1224 n.4).
Because Brown cannot show that his ACCA sentence enhancement "turned on the validity of the residual clause," his § 2255 motion and claim for relief under Johnson collapse under the weight of the Eleventh Circuit's decision in Beeman. See 871 F.3d at 1221.
The Supreme Court in Johnson held the ACCA's residual clause to be unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S.Ct. at 2557-58. The Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated-offenses clause of the ACCA's definition of a violent felony. Id.
To determine whether a prior conviction qualifies as a violent felony under the ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i), courts are to employ a "categorical approach" and compare the elements of the statute forming the basis of the defendant's conviction and the elements of the generic offense. Descamps v. United States, 570 U.S. 254, 257 (2013). If the statute necessarily requires the government to prove as an element of the offense the use, attempted use, or threatened use of physical force, then the offense categorically qualifies as a violent felony. United States v. Davis, 875 F.3d 592, 596 (11th Cir. 2017); see 18 U.S.C. § 924(e)(2)(B)(i). Under the categorical approach, courts are to presume that a conviction rested upon nothing more than the least of the acts criminalized. United States v. Estrella, 758 F.3d 1239, 1254 (11th Cir. 2014).
The Supreme Court has also adopted a "modified categorical approach" for a sentencing court to use to decide whether an ACCA enhancement applies when the defendant was convicted under a divisible statute—i.e., a statute that sets out one or more elements of the offense in the alternative. Descamps, 570 U.S. at 257. A statute is not divisible if it merely lists diverse means of satisfying a single element of a single crime, in which case a jury need not find any particular item. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). The central distinction is between alternative elements of a crime and alternative facts. Id. at 2248. In examining whether a statute contains alternative elements, a court may look at state court decisions, the statute itself, the indictment, and jury instructions. Id. at 2256-57.
To determine the nature of a prior conviction under the modified categorical approach, a court is limited to considering the statutory definition of the offense of the conviction, the charging document, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Shepard v. United States, 544 U.S. 13, 16, (2005). A court also may consider undisputed facts found in the PSI and any addendum. United States v. Ramirez-Flores, 743 F.3d 816, 823 (11th Cir. 2016); United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
This court's discussion below focuses on three of Brown's prior convictions— specifically, three of his four Alabama convictions for second-degree assault—and finds that Brown fails to show, as required by Beeman, that the sentencing court, more likely than not, relied on the ACCA's residual clause to count these convictions as "violent felonies" to qualify Brown for ACCA enhancement. See Beeman, 871 F.3d at 1221-22. Because Brown cannot show that his ACCA-enhanced sentence turned on the validity of the residual clause, his Johnson claim fails and his § 2255 motion is due to be denied.
When the district court sentenced Brown in 2004, Brown had four prior Alabama convictions for second-degree assault in the Circuit Court of Autauga County, all of them obtained in 1995.
Ala. Code § 13A-6-21 (as amended by Acts 1994, 1st Ex. Sess. No. 94-794).
Alabama's second-degree assault statute is divisible because the statute, on its face, sets out elements in the alternative; i.e., the statute lists "separate crimes." See Descamps, 570 U.S. at 257. As a result, use of the modified categorical approach would be appropriate for determining which of those crimes Brown was convicted of committing. However, it cannot be conclusively determined from the record which of the "separate crimes" listed in Ala. Code § 13A-6-21 Brown was convicted of for each prior second-degree assault conviction in Alabama. The PSI did not specify which subsection of § 13A-6-21 Brown was convicted under for each assault conviction, and a transcript of Brown's sentencing hearing is not in the record. Nor does the record contain any copies of the indictments, plea agreements, guilty plea hearings, or sentencing orders from the state court proceedings related to Brown's convictions for second-degree assault.
Although copies of his Alabama assault indictments are not in the record before this court, Brown refers in his § 2255 motion to what he says are the general contents of the indictments in those case. See Doc. 1 at 5-7. Brown maintains that his indictment in the Circuit Court of Autauga County in Case No. CC 95-76 tracked the language of § 13A-6-21(a)(2) of the second-degree assault statute, but did not identify a subsection of the statute charged. Doc. 1 at 5-6. Brown states that his indictment in the Circuit Court of Autauga County in Case No. CC 95-77 identified the charge against him as "Assault I," but tracked the "recklessly caused" language of § 13A-6-21(a)(3) of the second-degree assault statute. (Doc. 1 at 6). Brown states that his indictment in the Circuit Court of Autauga County in Case No. CC 95-78 identified the charge as "Assault I" but that all documents related to his plea and conviction in that case identified the offense of conviction as second-degree assault. (Doc. 1 at 6). Finally, Brown states that his indictment in the Circuit Court of Autauga County in Case No. CC 95-146 tracked the language of § 13A-6-21(a)(2) of the second-degree assault statute, but did not identify a subsection of the statute charged. (Doc. 1 at 6-7).
Brown appears to argue that because it cannot be conclusively determined under which subsection of § 13A-6-21 he was convicted for each of his second-degree assault convictions, these convictions should not qualify as violent felonies under the ACCA's elements clause, as opposed to the now-void residual clause. Brown also appears to argue that because his conviction in Case No. CC 95-77 was likely under § 13A-6-21(a)(3), which requires reckless conduct rather than intentional conduct, his conviction in that case did not qualify as a violent felony under the ACCA's elements clause.
The Government argues that regardless under which of the "separate crimes" listed in § 13A-6-21 Brown was convicted, the least of the acts criminalized under each alternative basis for committing second-degree assault under the statute includes as an element the use, attempted use, or threatened use of physical force and therefore qualifies as a violent felony under the ACCA's elements clause. (Doc. 9 at 16-17). The Government maintains that Brown's conviction in Case No. CC 95-77 for purposes of the ACCA involved the use, attempted use, or threatened use of physical force includes the "reckless" use of physical force, so that a conviction under § 13A-6-21(a)(3), although involving reckless conduct, is nonetheless a violent felony under the ACCA's elements clause. (Doc. 9 at 18-21). However, this court need not address the issue of the propriety of classifying a "reckless assault" conviction under § 13A-6-21(a)(3) as a violent felony under the ACCA's elements clause or, relatedly, consider whether Brown's conviction in Case No. CC 95-77 was a violent felony under the elements clause, because, as to Brown's remaining three Alabama convictions for second-degree assault, Brown fails to carry his burden under Beeman of demonstrating that, more likely than not, the district court relied on the residual clause to find that any of these three convictions were violent felonies for purposes of the ACCA.
The ACCA defines a violent felony as a crime that "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); see Davis, 875 F.3d at 596. For purposes of the elements clause, "the phrase `physical force' means violent force—that is, force capable of causing pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). Consideration of the various "separate crimes" listed in Ala. Code § 13A-6-21 supports the conclusion that the least of the acts criminalized under each alternative basis for committing second-degree assault under the statute—with the exception of the offense set forth in § 13A-6-21(a)(3)— includes as an element the use, attempted use, or threatened use of physical force. It is enough, then, to say that at least five subsections of the Alabama second-degree assault statute set forth crimes that include as an element the use, attempted use, or threatened use of physical force, thereby qualifying as a violent felony under the ACCA's elements clause. See § 13A-6-21(a)(1), (2) & (4)-(6).
In resolving Brown's Johnson claim, this court considers Brown's following three Autauga County, Alabama convictions for second-degree assault: (1) a 1995 conviction in Case No. CC 95-76; (2) a 1995 conviction in Case No. CC 95-78; and (3) a 1995 conviction in Case No. CC 95-146. The PSI did not specify under which subsection of Ala. Code § 13A-6-21 Brown was convicted for each of these convictions, and a transcript of Brown's 2004 sentencing hearing is not in the record. The record also contains no copies of the indictments, plea agreements, guilty plea hearings, or sentencing orders from the state court proceedings related to the convictions. The few available relevant facts about these convictions are as follows.
The evidence weighs in favor of finding that, for the three second-degree assault convictions outlined above, Brown was convicted under § 13A-6-21(a)(2). The Eleventh Circuit has specifically recognized that a conviction for second-degree assault under § 13A-6-21(a)(2) is a violent felony under the ACCA's elements clause. See United States v. Mitchell, 724 F. App'x 784, 787 (11th Cir. 2018). Nothing in the record suggests that the sentencing court in 2004 relied on the ACCA's residual clause, solely or partially, to find that the three above-discussed assault convictions were violent felonies for purposes of the ACCA. Because Brown fails to show, as required by Beeman, that the sentencing court, more likely than not, relied on the ACCA's residual clause to count these convictions as violent felonies qualifying Brown for ACCA enhancement, Brown's Johnson claim as to these convictions fails. See Beeman, 871 F.3d at 1221-22.
Because these three prior Alabama second-degree assault convictions were sufficient, standing alone, to support application of the ACCA enhancement in Brown's case, this court pretermits discussion of whether Brown's New York second-degree assault conviction qualified as a violent felony under the ACCA's elements clause, just as this court pretermits discussion of Brown's Alabama sexual abuse conviction
A movant cannot sustain his burden under Johnson by demonstrating that it is "merely possible that the court relied on [the residual clause] to enhance the sentence." Beeman, 871 F.3d at 1221. Here, the record is unclear, and "`where . . . the evidence does not clearly explain what happened[,] . . . the party with the burden loses.'" Id. at 1225. That party is Brown. This court finds that Brown has the requisite three ACCA predicates for sentencing enhancement.
For the foregoing reasons, it is ORDERED that Petitioner Jonathan Ellis Brown's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence (Doc. No. 1) is DENIED.
It is further ORDERED that, because Brown's § 2255 motion does not demonstrate "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability is DENIED.
A final judgment will be entered separately.
