G.R. SMITH, Magistrate Judge.
Kevin Green was convicted by a jury of violating 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon) and given an enhanced sentence of 262 months under the Armed career criminal Act (ACCA), 18 U.S.C. § 924(e)(1). See docs. 1
Green was found guilty by a jury of one count of possession of a firearm by a convicted felon. Doc. 65. His Presentence Investigative Report (PSR) deemed him an armed career criminal, and the Court ultimately sentenced him to 262 months' imprisonment. Docs. 29 & 33.
After unsuccessfully appealing his conviction, United States v. Green, 275 F. App'x 898 (11th Cir. 2008), Green filed his first § 2255 motion, in which he raised a due process claim and several ineffective assistance of counsel claims. Doc. 79. The Court denied that motion on the merits. Docs. 85; 90; 91. On appeal, the Eleventh Circuit denied Green a Certificate of Appealability (COA) and leave to proceed in forma pauperis, finding "all of Green's claims were legally and factually meritless." Green v. United States, No. 10-13906E (11th Cir. Mar. 14, 2011); see doc. 108.
The Supreme Court has since held in Johnson that the "residual clause" of the ACCA, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135 S. Ct. at 2557. Green sought (and ultimately received) permission from the Eleventh Circuit to file a successive § 2255 claim. See In re: Kevin Leroy Green, No. 16-12531J (June 13, 2016) (granting his successive § 2255 motion pursuant to Welch, 136 S.Ct. 1257 (holding Johnson retroactive)) (attached). He then filed this, his second § 2255 motion, arguing that his convictions for robbery by force, aggravated assault, and possession with intent to distribute marijuana no longer qualify as ACCA predicates. Doc. 111. The Government opposes. Doc. 114.
The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g), and (2) have "three prior convictions. . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain vanilla, felon-in-possession convictions fetch a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).
To qualify as an ACCA "violent felony," the crime must be an offense 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 the 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)(13)(04ii). These three definitions are known, respectively, as (1) the elements clause, (2) enumerated crimes clause, and (3) residual clause. Johnson held that that "residual clause" was unconstitutionally vague. See 135 S.Ct. 2551, 2557. It said nothing, however, about ACCA enhancements predicated on convictions for "serious drug offenses" or "violent felonies" as defined by ACCA provisions other than the residual clause. See, e.g., Johnson, 135 S. Ct. at 2563 ("Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony," much less its definition of "serious drug offense"). After Johnson, enhancements based on those offenses remain valid. United States v. Tinker, 618 F. App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the "elements" clause of the ACCA, rather than the "residual" clause, survive Johnson).
Green disputes that his ACCA-enhanced sentence survives Johnson. Doc. 111. He contends that of his four priors, his convictions for a 1987 aggravated assault, 2001 possession with intent to distribute more than one ounce of marijuana, and 1994 robbery by force no longer qualify as ACCA predicate offenses. Id. Green apparently concedes that his 1989 conviction for sale of a controlled substance (cocaine) remains a valid ACCA predicate. See docs. 111 & 121.
Because the Johnson decision only invalidated the residual clause of the ACCA, serious drug offenses remain ACCA predicates. A "serious drug offense" is defined as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance . . ., for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
After Johnson, Green's 1989 conviction for sale of cocaine under O.C.G.A. § 16-13-30(b)
Post-Johnson, convictions for aggravated assault remain enhancement-triggering violent felonies under ACCA's elements clause. That clause categorizes as violent felonies those crimes that have "as an element the use, or attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(1)(2)(B)(i). Green's 1987 conviction for aggravated assault, pursuant to O.C.G.A. § 16-5-21, unquestionably comes under the ACCA. Hayward v. United States, 2016 WL 5030373 at *3 (S.D. Ga. Sept. 19, 2016); Neesmith v. United States, 2016 WL 1688780 at * 2 n. 2 (S.D. Ga. Apr. 26, 2016). At the time of his conviction, the Georgia statute provided that a person committed aggravated assault when he, "with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." O.C.G.A. § 16-5-21(a)(2). Clearly, the state statute requires as an element the use of "threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(1)(2)(B)(i).
Green thus has passed the ACCA three-conviction threshold for enhancement as an armed career criminal. Because his prior convictions remain predicate offenses triggering an ACCA enhancement, see 18 U.S.C. H 924(e)(1) & (2)(B), Johnson has no impact on the validity of his sentence. Accordingly, Kevin Green's § 2255 motion should be
This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x 5421 545 (11th Cir. 2015).
Under the modified categorical approach, courts consult certain "Shepard" documents such as charging documents, plea agreements, transcripts of plea colloquies, jury instructions, and verdict forms to determine the statutory basis for conviction. Johnson, 559 U.S. at 144; see also In re Hires, 825 F.3d 1297, 1302 (11th Cir. 2016) (undisputed facts contained in a PSR may also be used in determining the statutory basis for conviction). Here, movant pled guilty to the charges of the indictment, that he "unlawfully possess[ed] marijuana, more than an ounce. . . with an intent to distribute . . . contrary to the laws of Georgia." Doc. 114-5 at 4-5 (indictment & guilty plea); Stevens, 654 F. App'x at 987 (to constitute an ACCA-predicate offense, "the undisputed facts in [the Shepard documents must] show that [defendant] was convicted under Georgia law of possession with intent to distribute marijuana (not mere possession of marijuana).").
Green's 2001 conviction for possession with intent to distribute marijuana fits the ACCA's definition because (1) it was a state law crime (2) punishable by up to ten years in prison (3) for the intent to distribute (4) a controlled substance under federal law. 18 U.S.C. § 924(e)(2)(A)(ii); 21 U.S.C. §§ 802(6), 812, Schedule I(c)(10) (listing marijuana as a Schedule I controlled substance); Reeves v. United States, 2016 WL 6394308 at *3 (S.D. Ga. Oct. 26, 2016) (possession with intent to distribute a controlled substance in violation of O.C.G.A. § 16-13 et seq. is a valid ACCA predicate offense); see also O.C.G.A. § 16-13-300)(2) ("any person who violates this subsection shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years"); Olson v. State, 166 Ga.App. 104, 110 (1983) (determining Georgia Controlled Substances Act maximum sentence for marijuana distribution is ten years). That marijuana may not constitute a "controlled substance" under Georgia law is immaterial — enhancement is governed by definitions set forth in federal law, not state law, United States v. Tamayo, 80 F.3d 1514, 1523 (11th Cir. 1996), and federal law requires only that Green's Shepard documents establish that he was convicted of possession with intent to distribute marijuana, a state offense punishable by at least one and up to ten years in prison. He does not dispute those facts.
Hires, 825 F.3d 1297, 1301 (11th Cir. 2016). Though unnecessary to a finding that Georgia aggravated assault (assault with a deadly weapon) is an ACCA-predicate offense, a review of the Shepard documents further underscore that Green was indeed convicted for a violent felony within the meaning of the ACCA. Johnson, 559 U.S. at 144 (to determine the statutory basis for conviction, a court may consult certain "Shepard" documents such as charging documents, plea agreements, transcripts of plea colloquies, jury instructions, and verdict forms); Hires, 825 F.3d at 1302 (undisputed facts contained in a Presentence Investigative Report may also be used in determining the statutory basis for conviction).
After chasing his victim into the street and stabbing him three times in the back, Green pled guilty to a state court indictment charging him with "unlawfully mak[ing] an assault upon the person of Michael Bosley with an offensive weapon, to wit: a knife" in violation of O.C.G.A. § 16-5-21. PSR 1128; see doc. 114-3 at 7 (indictment) & (guilty plea). Green's conviction for aggravated assault was indisputably for a violent felony as contemplated by Congress.
Green pled guilty to "the offense of robbery by force (16-8-40)" by taking a briefcase "from the person of Heather Perillo by use of an offensive weapon, to wit: his fists." Doc. 114-2; PSR ¶ 31. Though the Court makes no finding as to whether his robbery by force conviction under O.C.G.A. § 16-8-40(a)(1) survives Johnson as an ACCA-enhancing violent felony, see 559 U.S. at 138, it is worth noting that under the modified categorical approach, robbery by force more than likely qualifies as an ACCA predicate offense under the elements clause of § 924(e). See 18 U.S.C. § 924(e)(1)(2)(B)(i) (a violent felony involves the "threatened use of physical force against the person of another."); Nelson v. State, 203 Ga. 330, 337-39 (1948) ("When the [Georgia] Code speaks of force, it means actual violence" and "personal violence," and it "implies actual personal violence, a struggle and a personal outrage."); United States v. Duncan, 833 F.3d 751, 756 (7th Cir. 2016) ("the case law rejects" the position that "putting someone in fear of something as minor as a bruise or simple physical pain cannot qualify as a violent felony"); United States v. Smith, 2016 WL 6875877 at * 6 (E.D. Tenn. Nov. 21, 2016) ("All federal courts of appeals which have considered robbery offenses that . . . require more force than mere purse snatching have concluded that such offenses qualify as either crimes of violence or violent felonies under the use-of-force clause.") (collecting cases).
