In re: Darren Demeatrie Gordon

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IN RE: Darren Demeatrie GORDON Petitioner.

Nos. 16-13681-J & 16-13803-J

United States Court of Appeals, Eleventh Circuit.

Filed 07/08/2016

827 F.3d 1289

Before: TJOFLAT, HULL, and JULIE CARNES, Circuit Judges.

Under

Rogers, Parker has shown that his burglary conviction may be a residual-clause predicate. The sentencing court did not state that it counted the burglary conviction as an ACCA predicate based on the enumerated or elements clauses. Moreover, there is no binding precedent that makes clear that the conviction categorically qualifies as an ACCA predicate under one of those clauses. In

United States v. Weeks, 711 F.3d 1255, 1262-63 (11th Cir. 2013). However, there, we used the modified categorical approach and thus did not hold that Florida burglary categorically qualifies as an enumerated-clause predicate. See

id. Absent any binding precedent holding that Parker‘s conviction categorically qualifies as an ACCA predicate under a still-valid clause, we must turn to

Descamps. See

Rogers, op. at 825 F.3d at 1338-39. And we do not have any binding precedent holding that the Florida burglary statute is divisible under

Descamps. See

United States v. Lockett, 810 F.3d 1262, n. 1 (11th Cir. 2016). Although

Weeks applied the modified categorical approach—indicating that it found the Florida burglary statute divisible—

Weeks predated

Descamps. Since

Weeks was decided before

Descamps, it is not a “binding precedent” that holds that the Florida burglary statute “is divisible under

Descamps.” See

Rogers, op. at 825 F.3d at 1338-39. Accordingly,

Weeks is inapposite here, and based on his burglary conviction, Parker “has made out a prima facie case that his application contains a

Johnson claim under § 2255(h).”⁴

Id.

Because Parker has made out a prima facie showing that he has raised a claim that meets the statutory criteria set forth in 28 U.S.C. § 2255, his application for leave to file a second or successive § 2255 motion is hereby GRANTED.⁵

court could have, but did not, rely on at sentencing. See

United States v. Petite, 703 F.3d 1290, 1292 n. 2 (11th Cir. 2013) cert. denied,

___ U.S. ___, 134 S. Ct. 182, 187 L. Ed. 2d 124 (2013);

Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1279 (11th Cir. 2013). And “[w]e cannot know at this point whether the government will choose to invoke [such an argument] in this case or decide to waive it, and we see no basis for denying the government that choice.” See

In re Jackson, No. 16-13536, op. at 826 F.3d 1343, 1347-48, 2016 WL 3457659 (11th Cir. June 24, 2016) (per curiam).

Darren D. Gordon, Coleman, FL, Pro Se.

Vanessa Louise Chen, Michael Caruso, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, for Petitioner.

Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney‘s Office, Miami, FL, for Successive Habeas Respondent.

BY THE PANEL:

In these consolidated proceedings pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Darren Demeatrie Gordon has filed two applications—one pro se and the other through counsel—seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if we certify that the second or successive motion contains a claim involving:

1. (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
2. (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also

Jordan v. Sec‘y, Dep‘t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that our determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

In his two applications, Gordon indicates that he wishes to raise one claim in a second or successive § 2255 motion. Gordon asserts that his claim relies upon the new rule of constitutional law announced in

Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and made retroactively applicable to cases on collateral review by

Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Specifically, he asserts that his 60-month consecutive sentence for using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), must be set aside in light of

Johnson and

Welch.

I. THE ACCA

A felon in possession of a firearm who has at least three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” is subject to an enhanced statutory penalty under the ACCA. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

1. (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
2. (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.”

United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

II.

On June 26, 2015, the Supreme Court in

Johnson held that the residual clause of the ACCA is unconstitutionally vague.

Johnson, 576 U.S. at ___, ___, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes clause of the ACCA‘s definition of a violent felony.

Id. at ___, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court held in

Welch that

Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

Welch, 578 U.S. at ___, 136 S.Ct. at 1264-65.¹

In light of the Supreme Court‘s holdings in

Johnson and

Welch, many federal prisoners now seek to make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA‘s now-voided residual clause, and seek to file a second or successive § 2255 motion in the district court. However, merely alleging a basis that meets § 2255(h)‘s requirements in the abstract only “represent[s] the minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also must make “a prima facie showing that the application satisfies the requirements of this subsection.”

In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). Accordingly, it is not enough for a federal prisoner to merely cite

Johnson as the basis for his claims; he also must make a prima facie showing that he was sentenced, at least in part, under the residual clause, and thus falls within the scope of the new substantive rule announced in

Johnson. See, e.g.,

id.; see also 28 U.S.C. § 2244(b)(3)(C).

III. GORDON‘S CONVICTIONS AND SENTENCE

A jury found Gordon guilty of committing the following offenses, all of which were charged in the same indictment: (1) one count of Hobbs Act robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count 1); (2) one count of using and carrying a firearm during and in relation to a crime of violence, that is the Hobbs Act robbery charged in Count 1 of the indictment, in violation of 18 U.S.C. §§ 924(c) and 2 (Count 2); and (3) one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 3).² The district court sentenced Gordon to 240 months’ imprisonment as to Count 1, the Hobbs act robbery count, and 120 months imprisonment as to Count 3, the felon-in-possession count, with those counts to run concurrently.³ As to Count 2, the § 924(c) count, Gordon received a consecutive 60-month sentence of imprisonment.

IV. GORDON‘S § 924(c) CLAIM

Distinct from the sentence provisions in § 924(e)(1) of the ACCA, § 924(c)(1)(A) provides for a separate consecutive sentence if any person uses or carries a firearm during and in relation to a crime of violence or drug trafficking crime, or possesses a firearm in furtherance of such crimes, as follows:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). For the purposes of § 924(c), § 924(c)(3)(A) and (B) define “crime of violence” as an offense that is a felony and:

1. (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
2. (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. § 924(c)(3). The former clause is referred to herein as the “use-of-force” clause and that later clause as the ”§ 924(c)(3)(B) residual clause.”

We recently recognized that it is an open question whether

Johnson applies to the residual clause set out in 18 U.S.C. § 924(c)(3)(B).

In re Pinder, 824 F.3d 977, 978-79, No. 16-12084, 2016 WL 3081954, at *2 (11th Cir. June 1, 2016). In

Pinder, this Court considered whether a companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of violence under § 924(c).

Id. at 979 n. 1, 2016 WL 3081954 at *2 n. 1. Because it was not clear whether conspiracy to commit Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the applicant had made a prima facie case that

Johnson impacted the validity of his § 924(c) conviction.

Id.

In some cases, it has been clear that the § 924(c) companion conviction qualifies as a crime of violence under § 924(c). See, e.g.,

In re Saint Fleur, 824 F.3d 1337, 1340-41, No. 16-12299, 2016 WL 3190539, at *3 (11th Cir. June 8, 2016) (concluding that a companion conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause);

In re Hines, 824 F.3d 1334, 1336-37, No. 16-12454, 2016 WL 3189822, at *2 (11th Cir. June 8, 2016) (concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A) use-of-force clause without regard to the § 924(c)(3)(B) residual clause);

In re Colon, 826 F.3d 1301, 1304-05, Nos. 16–13021-J, 16-13264-J, 2016 WL 3461009, at *3 (11th Cir. June 24, 2016) (concluding that a companion conviction for aiding and abetting a Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause). In those cases, the § 924(c) companion conviction clearly qualified as a crime of violence.

The applicant‘s argument that

Saint Fleur and

Hines conflict with

Pinder fails because the companion conviction in

Pinder was conspiracy to commit Hobbs Act robbery, while

Saint Fleur and

Hines involved different companion convictions, that is substantive Hobbs Act robbery and armed bank robbery under § 2113(a) and (d), respectively. Indeed this Court specifically distinguished

Pinder in both

Saint Fleur and

Hines. Therefore, we reject the claim that under the prior panel precedent rule,

Pinder, not

Saint Fleur and

Hines, control Gordon‘s case.⁴

Accordingly,

Saint Fleur controls and we need not decide the § 924(c)(3)(B) residual clause issue in this particular case because even if

Johnson‘s rule about the ACCA residual clause applies to the § 924(c)(3)(B) residual clause, Gordon‘s claim does not meet the statutory criteria for granting his § 2255(h) application. This Court has held that a companion Hobbs Act robbery conviction, such as Gordon‘s, qualifies as a “crime of violence” under the use-of-force clause in § 924(c)(3)(A) without regard to the § 924(c)(3)(B) residual clause.

Saint Fleur, 826 F.3d at 1305-06, 2016 WL 3190539, at *4. This means Gordon‘s § 924(c) sentence would be valid even if

Johnson makes the § 924(c)(3)(B) residual clause unconstitutional.

V. CONCLUSION

Because Gordon has failed to make a prima facie showing that his proposed claim meets the statutory criteria, his applications for leave to file a second or successive motion are hereby DENIED.

Notes

1

Although the Supreme Court held that

Johnson‘s invalidation of the residual clause applied retroactively, the Supreme Court remanded

Welch‘s § 2255 proceedings to this Court to determine whether the district court‘s denial of the § 2255 motion was correct “on other grounds,” noting that “the parties continue to dispute whether

Welch‘s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make

Welch eligible for a 15-year sentence regardless of

Johnson.”

Welch, 578 U.S. at ___, 136 S.Ct. at 1268.

2

Count 1 charged that Gordon “did knowingly and willfully obstruct, delay and affect commerce ... by robbery, as the terms ‘commerce’ and ‘robbery’ are defined in Title 18, United States Code, Section 1951(b), in that [Gordon] did unlawfully take and obtain property ... from the person, presence and custody of an employee ... against her will, by means of actual and threatened force, violence and fear of injury to her person; in violation of Title 18, United States Code, Sections 1951(a), and ... 2.” Count 2 charged that Gordon “did knowingly use and carry firearms ... during and in relation to a crime of violence which is a felony prosecutable in a court of the United States, that is, a violation of Title 18, United States Code, Section 1951(a), as set forth in Count [1] of the indictment; all in violation of Title 18, United States Code, Section 924(c), and ... Section 2.” (emphasis added).

3

Gordon‘s applications do not raise an ACCA claim. This is because Gordon did not receive an ACCA enhancement for his felon-in-possession conviction.

4

Because Parker has made out a prima facie case based on his burglary conviction, his remaining convictions are not relevant at this stage. See

Jordan, 485 F.3d at 1357-58 (concluding that our role at the § 2255 application stage is limited to making a “prima facie decision“). We leave it to the district court to consider those convictions. Similarly, the argument that

Saint Fleur and

Hines conflict with this Court‘s subsequent order in

Rogers fails because

Rogers involved an ACCA claim, not a § 924(c) claim. Indeed,

Rogers neither conflicts with our holdings in

Saint Fleur and

Hines, nor informs our analysis of

Johnson-based § 924(c) claims. In ACCA cases like

Rogers, the federal sentencing court must examine prior state court convictions, often from multiple state jurisdictions, to determine whether those convictions qualify as violent felonies for the purposes of applying a federal sentencing enhancement. In contrast, in § 924(c) cases, the federal sentencing court and this Court examine whether a contemporaneous companion federal conviction, charged in the same federal indictment as the § 924(c) charge itself, qualifies as a crime of violence. As in Gordon‘s case, the § 924(c) charge expressly identifies the companion crime of violence. Then, the federal sentencing judge either accepts a guilty plea of, or conducts a trial on, the § 924(c) charge and its companion crime of violence. This makes the determination of whether a defendant has made a prima facie case of a

Johnson-based claim decidedly easier and clearer in § 924(c) cases.

5

We note that Parker previously filed a similar application, and we rejected that application. However, that order was issued prior to

Rogers.

Case Details

Case Name: In re: Darren Demeatrie Gordon

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 8, 2016

Citation: 827 F.3d 1289

Docket Number: 16-13681-J & 16-13803-J

Court Abbreviation: 11th Cir.