Case: 10-12424   Date Filed: 06/11/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 10-12424
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:09-cv-00193-WTH-GRJ



JOHN ANTHONY MOORE,

                                                          Petitioner-Appellant,

                                  versus

WARDEN, FCC COLEMAN - MEDIUM,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 11, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      John Moore, a federal prisoner, appeals pro se the District Court’s dismissal

of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and

denial of his motion for reconsideration. In 2003, Moore was sentenced to 189

months’ imprisonment after he was convicted for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Moore’s

sentence was enhanced pursuant to the Armed Career Criminal Act (“ACCA”)

because he had three prior violent felony convictions, including, inter alia, carrying

a concealed firearm. In his instant § 2241 petition, Moore argued that he was

actually innocent of his § 924(e) conviction and sentence, in light of Begay v.

United States, 

, 

, 

(2008). He

contended that his Florida conviction for carrying a concealed firearm no longer

qualified as a “violent felony,” and his claim fell within the “savings clause” of 28

U.S.C. § 2255. He further asserted that settled precedent had effectively deprived

him of any reasonable opportunity to obtain a reliable determination of this issue.

The District Court dismissed Moore’s § 2241 petition and subsequent motion for

reconsideration, finding that the savings clause did not apply and the court thus had

no jurisdiction.

      On appeal, Moore argues pro se that his sentence was improperly enhanced

under the ACCA. Moreover, he asserts that he may utilize the savings clause to

challenge his sentence in light of Begay. The Government concedes that the


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District Court should not have used Moore’s prior conviction for carrying a

concealed firearm to determine his status as an armed career criminal, but

highlights that Moore had four other convictions for offenses that we have

previously held to be ACCA-qualifying. Moore replies that, under United States v.

Canty, 

(11th Cir. 2009), and United States v. Petite, 

(11th Cir.), cert. denied, (U.S. Oct. 7, 2013) (No. 12-10831), the Government

cannot argue for the first time on appeal that his other prior convictions supported

an enhanced sentence. Thus, this case presents the issues of: (1) whether the

District Court properly dismissed Moore’s 28 U.S.C. § 2241 petition on the basis

that the savings clause of 28 U.S.C. § 2255(e) did not apply; and (2) if the savings

clause applies, whether the Government in response may argue for the first time on

appeal that Moore’s other convictions are violent felonies that satisfy the ACCA.

      We review de novo the availability of habeas relief under § 2241, and “may

affirm for any reason supported by the record, even if not relied upon by the

district court.” Turner v. Warden, 

, 1333 (11th Cir.), cert. denied,

(2013).

                                          I.

      Our recent decision in Bryant v. Warden, FCC Coleman-Medium, 

(11th Cir. 2013), supplies the analysis and the answer to whether Moore falls




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within the ambit of § 2255(e). Bryant held that for § 2255(e)’s savings clause to

apply, a petitioner must demonstrate:

      (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, our
      Circuit’s binding precedent had specifically addressed [petitioner’s] distinct
      prior state conviction that triggered § 924(e) and had squarely foreclosed
      [petitioner’s] § 924(e) claim that he was erroneously sentenced above the
      10–year statutory maximum penalty in § 924(a); (2) subsequent to his first
      § 2255 proceeding, the Supreme Court’s decision in Begay, as extended by
      this Court to [petitioner’s] distinct prior conviction, overturned our Circuit
      precedent that had squarely foreclosed [petitioner’s] § 924(e) claim; (3) the
      new rule announced in Begay applies retroactively on collateral review; (4)
      as a result of [petitioner’s] new rule being retroactive, [petitioner’s] current
      sentence exceeds the 10–year statutory maximum authorized by Congress in
      § 924(a); and (5) the savings clause in § 2255(e) reaches his pure § 924(e)-
      Begay error claim of illegal detention above the statutory maximum penalty
      in § 924(a).

can establish all five requirements, and, as such, § 2255(e)

applies.

      First, throughout Moore’s sentencing, direct appeal, and first § 2255

proceeding, our precedent squarely foreclosed his claim that carrying a concealed

firearm did not qualify as “violent felony” for purposes of 18 U.S.C. § 924(e). See

United States v. Hall, 

, 401 (11th Cir. 1996) (concluding that carrying a

concealed weapon qualifies as a violent felony for purposes of the ACCA).

Second, Hall was overturned after Moore filed his first § 2255 petition. See United

States v. Canty, 

, 1255 (11th Cir. 2009) (“[C]arrying a concealed

weapon is not a violent felony that may be used as a predicate conviction to

enhance a defendant’s sentence under the ACCA.”). Third, we held in Bryant that
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“the new rule announced in Begay applies retroactively for purposes of a first

§ 2255 motion and the § 2241 petition [a petitioner] seeks to bring under

§ 2255(e).” 

. Fourth, Moore’s current sentence of 189

months exceeds the 10-year statutory maximum sentence authorized by Congress

in § 924(a). And finally, Bryant concluded that “§ 2255(e) reaches [a] pure

§ 924(e)-Begay claim of illegal detention above the statutory maximum penalty in

§ 924(a).” 

1

       Because Moore satisfies all five requisites laid out in Bryant, § 2255 is

“inadequate or ineffective to test the legality of his detention,” and thus he can

proceed under 28 U.S.C. § 2241. See 28 U.S.C. § 2255(e).

                                               II.

       The Government contends the record establishes that, in addition to the three

convictions the District Court relied on to trigger the enhanced sentence, Moore

was convicted of additional felonies that would qualify as “violent felonies” for

purposes of the ACCA. In Bryant, we held the Government may not for the first

time on appeal substitute another felony to reach the three felonies required to

trigger the ACCA. See 

. As in Bryant, here the

Government never suggested to the District Court that Moore’s other felony

       1
          A pure-Begay claim is one where a petitioner claims “error[] in the application of the
‘violent felony’ enhancement, as defined in 18 U.S.C. § 924(e)(2)(B), resulting in a higher
statutory minimum and maximum sentence under § 924(e).” Gilbert v. United States, 

, 1319 n.20 (11th Cir. 2011) (en banc).
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convictions could serve as ACCA-qualifying felonies. Because it failed to raise

the argument below, the Government is foreclosed from raising the argument on

appeal. Cf. 

(“The Government is entitled to an

opportunity to offer evidence and seek rulings from the sentencing court in support

of an enhanced sentence. But, the Government is entitled to only one such

opportunity, and it had that opportunity at the sentencing hearing.”).

                                         III.

      Accordingly, the District Court’s dismissal of Moore’s § 2241 petition is

VACATED. This case is REMANDED with instructions that the District Court

grant Moore’s § 2241 relief and enter an order stating that Moore’s sentence for his

§ 922(g) conviction is reduced to the 10–year statutory maximum penalty in

§ 924(a).

      SO ORDERED.




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