ORDER DENYING THE § 2255 MOTION AND GRANTING A CERTIFICATE OF APPEALABILITY

ROBERT L. HINKLE, District Judge.

The defendant Fred Somers has moved under 28 U.S.C. § 2255 for relief from his armed-career-criminal sentence based on Johnson v. United States, 135 S.Ct. 2551 (2015). This order denies the motion but grants a certificate of appealability.

I

Mr. Somers pled guilty to two counts. One was possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). He was treated as an armed career criminal under 18 U.S.C. § 924(e) and sentenced to 211 months in prison.

The maximum sentence for violating § 922(g)(1) is ordinarily 10 years in prison. See id. § 924(a)(2). But if the defendant is an armed career criminal, the minimum sentence is 15 years, and the maximum is life. Id. § 924(e)(1). A defendant is an armed career criminal if the defendant has three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. This order sometimes refers to qualifying previous convictions as 924(e) "predicates."

Under § 924(e), offenses that qualify as violent felonies can be divided into three groups.

First, the term "violent felony" includes an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i). This is sometimes referred to as the "element" or "physical force" clause.

Second, the term "violent felony" includes an offense that "is burglary, arson, or extortion, [or] involves use of explosives." § 924(e)(2)(B)(ii). This is sometimes referred to as the "enumerated offenses" clause.

Third, the statute says the term "violent felony" includes an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. This is sometimes referred to as the "residual clause."

In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held the residual clause unconstitutionally vague. Johnson is retroactively applicable on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016).

II

Under the law of the circuit when Mr. Somers was sentenced, he was an armed career criminal. He had five prior convictions that, at that time, were 924(e) predicates—four violent felonies and a serious drug offense. The four violent felonies were Florida state-court convictions for resisting an officer with violence, aggravated assault with a deadly weapon, burglary, and false imprisonment. The serious drug offense was a Maryland state-court conviction for conspiracy to distribute heroin.

Mr. Somers's guideline range was 188 to 235 months. He was sentenced to 211 months on the felon-in-possession count and the maximum of 120 months, to be served concurrently, on the other count.

III

Mr. Somers has moved for relief under § 2255 based on Johnson and on other grounds. The motion is before the court on the magistrate judge's report and recommendation, ECF No. 162, and the properly filed objections, ECF Nos. 165. Mr. Somers has improperly submitted additional, pro se objections, even though he is represented by an attorney. See ECF Nos. 166, 167,168 & 169. I have reviewed de novo the issues raised by all the objections. This order accepts the report and recommendation. This order sets out the court's analysis of the Johnson claim and adopts the report and recommendation as the court's opinion on all other issues.

IV

Under Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the controlling question on a Johnson claim ordinarily is whether the court would have imposed a lower sentence had Johnson already been on the books at the time of the original sentencing—that is, had there been no residual clause. This requires an analysis of each conviction that was treated as an armed-career-criminal predicate to determine whether it was treated as a predicate based only on the residual clause. The burden of proof on this issue is on the defendant. If, after eliminating prior convictions that were treated as predicates based only on the residual clause, the defendant still has three predicates, the defendant is not entitled to relief under Johnson.

Even if one or more prior convictions were treated as 924(e) predicates based only on the residual clause and this leaves fewer than three convictions that the sentencing court would have treated as 924(e) predicates at that time, a defendant is not entitled to relief if, based on a proper analysis at the time of the § 2255 decision, the defendant has three 924(e) predicates. In other words, a defendant who has three 924(e) predicates under current law is not entitled to relief under Johnson. If the sentencing court reached the right result for the wrong reason, it was nonetheless the right result. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that federal collateral relief is available from a state court's trial error only if the error had "substantial and injurious effect" on the state court decision) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Phillips v. United States, 849 F.3d 988 (11th Cir. 2017) (applying Brecht on a § 2255 motion for relief from a federal conviction).

V

As set out above, Mr. Somers had five previous convictions that were treated at sentencing as 924(e) predicates. These included Florida state-court convictions for resisting an officer with violence, aggravated assault with a deadly weapon, burglary, and false imprisonment, as well as a Maryland state-court conviction for conspiracy to distribute heroin. The convictions for burglary and false imprisonment were treated as 924(e) predicates based only on the residual clause.

Even so, Mr. Somers is not entitled to relief. The other three convictions that were treated as 924(e) predicates are still 924(e) predicates. Johnson's invalidation of the 924(e) residual clause made no difference. In United States v. Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018), the Eleventh Circuit held that Florida resisting with violence is a violent felony under the 924(e) element clause. Similarly, in Turner v. Warden Coleman FCI, 709 F.3d 1328, 1337-38 (11th Cir. 2013), the Eleventh Circuit held that Florida aggravated assault is a violent felony under the element clause. Turner's holding did not survive Johnson in other respects, but Turner's holding on aggravated assault was squarely based on the element clause, not the residual clause, and remains intact. See Deshazior, 882 F.3d at 1355; see also United States v. Fitzgerald, 743 F. App'x 971, 972 (11th Cir. 2018) (affirming an armed-career-criminal sentence and holding that, under Turner, Florida aggravated battery remains a violent felony). The third conviction, for conspiracy to distribute heroin, is a serious drug offense, unaffected by Johnson.

In sum, under the law of the circuit, Mr. Somers is still an armed career criminal.

VI

A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.

Mr. Somers has made the required showing on only one issue. As set out above, the Eleventh Circuit held in Turner that aggravated assault is a violent felony under the element clause. Turner was decided in 2013. Three years earlier, in United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010), the court addressed the element clause in the definition of "crime of violence" in United States Sentencing Guidelines Manual § 2L1.2. The 2L1.2 element clause is identical to the § 924(e) element clause; both apply only when "use of physical force," or its attempted or threatened use, is an element of the offense. Cases addressing the two provisions have been cited interchangeably. In Palomino Garcia the court held that "a conviction predicated on a mens rea of recklessness does not satisfy the `use of physical force' requirement." 606 F.3d at 1336. So under Guidelines Manual § 2L1.2, and by extension under § 924(e), a crime committed recklessly, not intentionally, does not qualify.

Turner said aggravated assault under Florida law must be committed intentionally. This made understandable the court's failure to cite Palomino Garcia. But a later concurring opinion asserts aggravated assault under Florida law can be committed recklessly, that Turner thus was wrongly decided, and that the issue should reconsidered en banc. See United States v. Golden, 854 F.3d 1256, 1257-58 (11th Cir. 2017) (Jill Pryor, J., concurring).

In sum, reasonable jurists could disagree on whether aggravated assault under Florida law is a violent felony under the element clause. For Mr. Somers, this issue is outcome-determinative. Under Turner, he is not entitled to relief. If the decision was changed en banc or by the Supreme Court, Mr. Somers would prevail. In these circumstances, issuance of a certificate of appealability is proper, even though the law of the circuit is, at least for now, fatal to the claim.

One related issue deserves mention. The government has asserted in a series of cases that Palomino Garcia did not survive Voisine v. United States, 136 S.Ct. 2272 (2016). That issue is addressed in, and is pending on an appeal from, my decision in United States v. Young, No. 4:13cr22-RH-CAS (N.D. Fla. June 1, 2018) (unpublished order). This issue, too, is one on which reasonable jurists could differ.

VII

For these reasons,

IT IS ORDERED:

1. The report and recommendation, ECF No. 162, is accepted.

2. The § 2255 motion, ECF No. 139, is denied.

3. The clerk must enter judgment stating, "The defendant's motion for relief under 28 U.S.C. § 2255 is denied."

4. A certificate of appealability is granted on this issue: whether a Florida conviction for aggravated assault is a violent felony under the 18 U.S.C. § 924(e) element clause, as held in Turner v. Warden Coleman FCI, 709 F.3d 1328 (11th Cir. 2013), or is not a violent felony under the element clause because it can be committed recklessly, see United States v. Golden, 854 F.3d 1256, 1257-58 (11th Cir. 2017) (Jill Pryor, J., concurring) (asserting that Turner should be reconsidered en banc because it is inconsistent with United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010)); but see Voisine v. United States, 136 S.Ct. 2272 (2016) (addressing recklessness under a similar element clause).

SO ORDERED.