ORDER

BRIAN J. DAVIS, District Judge.

This case is before the Court on Petitioner Verdell Marcel Brooks's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion) and Supporting Memorandum (Civ. Doc. 6, Memorandum).1 Brooks pled guilty to one count of being a felon in possession of a firearm, and the Court ultimately sentenced him to a term of 210 months in prison after determining he was an armed career criminal. Brooks raises a single claim: that the Court incorrectly sentenced him under the Armed Career Criminal Act (ACCA) in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The United States has responded (Civ. Doc. 10, Response), and Brooks has replied (Civ. Doc. 17, Reply). Thus, the matter is ripe for review.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings2, the Court has determined that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Brooks's § 2255 Motion is due to be denied.

I. The ACCA and Johnson

Under 18 U.S.C. § 922(g), a person convicted of being a felon in possession of a firearm is ordinarily subject to a maximum term of imprisonment of 10 years. Under the ACCA, however, that person is subject to an enhanced mandatory minimum sentence of 15 years in prison if he has three or more prior convictions for a violent felony or a serious drug offense, or both. 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). Subsection (i) is referred to as the "elements clause," the first nine words of subsection (ii) are referred to as the "enumerated offense" clause, and the rest of subsection (ii), which is emphasized above, is referred to as the "residual clause." Mays v. United States, 817 F.3d 728, 731 (11th Cir. 2016).

In Johnson v. United States, the Supreme Court held that the residual clause is unconstitutionally vague. 135 S. Ct. at 2557-58, 2563. However, the Supreme Court made clear that the elements clause and the enumerated offense clause remain unaffected. Id. at 2563. Later, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.

For a prisoner to successfully challenge his ACCA sentence based on Johnson, he must prove "more likely than not" that reliance on the residual clause led the sentencing court to impose the ACCA enhancement. Beeman v. United States, 871 F.3d 1215, 1220-22 (11th Cir. 2017), cert. denied, ___ S. Ct. ___, 2019 WL 659904 (Feb. 19, 2019).

Id. at 1221. "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.

Whether the sentencing court relied on the residual clause is a "historical fact," which is determined by reference to the state of affairs that existed at the time of sentencing. See id. at 1224 n.5. Thus, court decisions rendered afterward holding that an offense does not qualify under the elements clause or the enumerated offense clause "cast[ ] very little light, if any, on th[is] key question of historical fact." Id. A prisoner can prove that the sentencing court relied on the residual clause by pointing to "direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in that case." Id. at 1224 n.4. Alternatively, absent direct evidence, there will "sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement," such as statements in the presentence investigation report (PSR) or concessions by the prosecutor that the elements clause and enumerated offense clause were inapplicable. Id. A prisoner may also circumstantially prove that the ACCA sentence depended on the residual clause "if the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony." Id. at 1224 n.5 (emphasis added). However, if "`the evidence does not clearly explain what happened ... the party with the burden loses.'" Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).

II. Discussion

Brooks is not entitled to relief from his ACCA sentence because he has not carried his burden under Beeman. Brooks has not pointed to anything in the record that indicates, directly or indirectly, that the Court relied on the residual clause at the time it sentenced him. Because Brooks cannot show that the Court "relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause" to qualify a prior conviction as a violent felony, Beeman, 871 F.3d at 1221, he is not entitled to relief under Johnson.

In any event, Brook's ACCA sentence did not (and does not) rely on the residual clause. Brooks qualified for the ACCA enhancement based on the following prior convictions in the State of Florida: (1) possession of cocaine with intent to sell; (2) the sale or delivery of cocaine; and (3) aggravated assault. Memorandum at 2 (citing PSR at ¶ 17). Brooks conceded at the initial sentencing hearing that these prior convictions qualified him as an armed career criminal. Dec. 1, 1992 Sentencing Transcript at 13-14.3

Brooks's two prior convictions for possession of cocaine with intent to sell and the sale or delivery of cocaine do not implicate the residual clause, and thus are not affected by Johnson. See United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (conviction for the sale of cocaine under § 893.13, Fla. Stat., is a serious drug offense). Additionally, Brook's prior conviction for aggravated assault qualifies as a violent felony under the ACCA's elements clause. Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1337-38 & n.6 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S.Ct. 2551. As such, this ACCA predicate is also unaffected by Johnson. While Brooks argues that Turner was wrongly decided in light of subsequent Supreme Court decisions (Civ. Doc. 6 at 3-6), the Eleventh Circuit has rejected such arguments, holding that "Turner is binding" and "even if Turner is flawed, that does not give us, as a later panel, the authority to disregard it." United States v. Golden, 854 F.3d 1256, 1257 (11th Cir.), cert. denied, 138 S.Ct. 197 (2017); see also United States v. Kendricks, ___ F. App'x ___, 2018 WL 6584243, at *5 (11th Cir. Dec. 13, 2018) ("While Kendricks argues that Turner was wrongly decided, our decision remains binding unless and until it is overruled by this Court en banc or the Supreme Court."). Accordingly, this Court is bound to conclude that Brook's aggravated assault conviction remains a violent felony under the elements clause.

In his Reply brief, Brooks argues at length that his two prior drug convictions no longer count as ACCA "serious drug offenses." Reply at 3-10. However, such arguments fail for several reasons. First, Brooks affirmatively acknowledged at the sentencing hearing, and even in his Memorandum, that the two prior drug convictions qualified as ACCA predicates. See Dec. 1, 1992 Sentencing Transcript at 13-14; Memorandum at 6 ("Without the conviction for aggravated assault, Mr. Brooks has only two ACCA predicate convictions, both for cocaine offenses."). Brooks has thereby waived any argument that these convictions do not qualify as serious drug offenses. Second, in his § 2255 Motion and Memorandum, Brooks made no argument that his prior drug convictions do not count as ACCA "serious drug offenses." See § 2255 Motion at 4; Memorandum at 3-6. Brooks argued only that his prior conviction for aggravated assault no longer qualifies as a violent felony without the residual clause. Memorandum at 3-6. Because a party cannot raise new claims in a reply brief, and Brooks did not obtain leave of the Court to add these new claims, these arguments are procedurally barred. Oliveiri v. United States, 717 F. App'x 966, 967 (11th Cir. 2018); Snyder v. United States, 263 F. App'x 778, 779-80 (11th Cir. 2008). Third, the Supreme Court's decision in Johnson did not open a portal for prisoners to challenge whether their prior drug convictions qualify as ACCA serious drug offenses. See In re Hires, 825 F.3d 1297, 1303 (11th Cir. 2016) ("Johnson involved the residual clause and does not serve as a portal to relitigate whether a prior robbery conviction or another conviction qualifies under the elements clause."). Johnson dealt only with the residual clause, not the ACCA's definition of serious drug offenses. See Johnson, 135 S. Ct. at 2563; Bell v. United States, 688 F. App'x 593, 594-95 (11th Cir. 2017) ("The Johnson decision did not affect the ACCA's definition of "serious drug offenses."). Brooks cannot take advantage of Johnson, more than 20 years after his conviction and sentence became final, to challenge whether his prior drug convictions count as ACCA predicates. If Brooks wanted to argue that his prior drug convictions do not meet the definition of a serious drug offense, he could and should have done so either on direct appeal or in an earlier § 2255 motion. Thus, under any measure, Brooks's arguments that his prior drug convictions do not qualify as serious drug offenses must fail.

III. Conclusion

The Court determines that Brooks has not "show[n] that — more likely than not — it was use of the residual clause that led to the sentencing court's enhancement of his sentence." Beeman, 871 F.3d at 1221-22. Therefore, in accordance with the Rules Governing Section 2255 Proceedings in the United States District Courts, it is hereby

ORDERED:

DONE AND ORDERED.