O'Malley v. United States, 8:13-cv-02402

Sean P. O’Malley was sentenced under the Armed Career Criminal Act (ACCA) to a 15‑year mandatory minimum for being a felon in possession of a firearm, based on three prior convictions: two robberies and carrying a concealed firearm.
After Johnson v. United States invalidated the ACCA residual clause (retroactively applied by Welch), the Eleventh Circuit granted O’Malley leave to file a successive § 2255 and noted his carrying‑concealed‑firearm conviction no longer qualified.
O’Malley then moved in district court to vacate his ACCA enhancement; both parties agree the carrying‑concealed conviction no longer counts.
The Government argued O’Malley’s prior Florida conviction for accessory after the fact to attempted armed robbery (Fla. Stat. § 777.03(1)(a)) still qualifies as a violent felony under the ACCA’s elements clause (§ 924(e)(2)(B)(i).)
O’Malley argued that Florida’s accessory‑after‑the‑fact offense is legally distinct from the underlying attempted robbery and does not contain as an element the use, attempted use, or threatened use of physical force against another.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Florida accessory after the fact to attempted robbery conviction qualifies as a violent felony under the ACCA elements clause	Accessory after the fact lacks an element requiring use, attempted use, or threatened use of physical force and thus is not an ACCA predicate	Because the underlying attempted robbery involves force, accessory after the fact to that offense necessarily incorporates that violent element and qualifies	The court held accessory after the fact to attempted robbery does not qualify under the elements clause because its elements do not require force
Whether O’Malley remains an Armed Career Criminal after Johnson/Welch	With the carrying‑concealed firearm conviction invalidated, O’Malley lacks three qualifying predicates and should be stripped of ACCA status	The accessory‑after‑the‑fact conviction still supplies a predicate, preserving ACCA status	The court held O’Malley is no longer an armed career criminal and granted his § 2255 motion (resentencing/status conference set)

Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson rule retroactive on collateral review)
United States v. Canty, 570 F.3d 1251 (11th Cir. 2009) (discussing categorical treatment of Florida offenses under ACCA)
United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (courts compare statutory elements, not facts, for ACCA predicates)
United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) (Florida attempted robbery constitutes a crime of violence under guidelines)
Staten v. State, 519 So.2d 622 (Fla. 1988) (Florida accessory after the fact is mutually exclusive from the underlying offense)
Innie v. United States, 7 F.3d 840 (9th Cir. 1993) (accessory after the fact does not qualify as a crime of violence for career‑offender purposes)