815 F.3d 1291
11th Cir.
2016

UNITED STATES of America, Plaintiff-Appellee, v. Antone T. ADAMS, Defendant-Appellant.

No. 14-14329

United States Court of Appeals, Eleventh Circuit.

Jan. 12, 2016.

Non-Argument Calendar.

1291

given the statutory authority to certify questions under § 1254(2). Id. at 666, 116 S.Ct. at 2341 (Souter, J., concurring); see also id. at 666, 116 S.Ct. 2333 (Stevens, J., concurring). Justice Souter added, “if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress‘s Exceptions Clause power would be open. The question could arise if the courts of appeals adopted divergent interpretations of the gatekeeper standard.” Id. at 667, 116 S.Ct. at 2342 (Souter, J., concurring) (footnote omitted).

That‘s what has happened here: the courts of appeal disagree on the gatekeeper standard for Johnson claims.3 This disagreement thwarts the availability and administration of the writ of habeas corpus. We should either rehear this case or provide the Supreme Court an opportunity to resolve this disagreement. As the law stands today, relief and imprisonment depend on where an applicant lives, not the merits of his claims.

Cherie Krigsman, Linda Julin McNamara, Arthur Lee Bentley, III, U.S. Attorney‘s Office, Tampa, FL, James D. Mandolfo, U.S. Attorney‘s Office, Orlando, FL, for Plaintiff-Appellee.

D. Todd Doss, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender‘s Office, Orlando, FL, Mara Allison Guagliardo, Federal Public Defender‘s Office, Tampa, FL, for Defendant-Appellant.

Before TJOFLAT, ROSENBAUM, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:

Antone T. Adams was sentenced to 180 months in prison, the mandatory minimum sentence required by the Armed Career Criminal Act (“ACCA“), 18 U.S.C. § 924(e)(1), after pleading guilty to possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Adams under the ACCA after finding that he had three prior convictions, two of which—third-degree fleeing or attempting to elude, in violation of Fla. Stat. § 316.19351—qualified as violent felonies under the residual clause of the ACCA. Adams objected, arguing that the residual clause was unconstitutionally vague. The district court overruled that objection and sentenced him as a career criminal based on the two convictions for fleeing or attempting to elude and another uncontested prior conviction.2

Adams appeals his sentence, raising again his argument that the residual clause of the ACCA is unconstitutionally vague and arguing that the district court erred in applying a sentencing enhancement under the ACCA. While Adams‘s appeal was pending, the Supreme Court invalidated the residual clause of the ACCA as unconstitutionally vague in Johnson v. United States, 576 U.S. —, 135 S.Ct. 2551, 2557-58, 192 L.Ed.2d 569 (2015). The government concedes that the residual clause of the ACCA is unconstitutional under Johnson.

After Johnson, Adams‘s convictions for fleeing or attempting to elude, under Fla. Stat. § 316.1935, can serve as predicate offenses only if they qualify as violent felonies under a different ACCA provision. But Fla. Stat. § 316.1935(1) and (2) do not have “as an element the use, attempted use, or threatened use of physical force against the person of another,” are not “burglary, arson, or extortion,” and do not involve the “use of explosives.”3 18 U.S.C. § 924(e)(2)(B)(i)-(ii). And the government concedes that after Johnson, Adams‘s convictions for fleeing or attempting to elude, under Fla. Stat. § 316.1935, are no longer ACCA-qualifying offenses and cannot form the basis for a sentencing enhancement under the ACCA. We agree.

We therefore conclude that the district court erred in sentencing Adams, based on his previous convictions for fleeing or attempting to elude, under the now-unconstitutional residual clause of the ACCA. He must be resentenced.

VACATED AND REMANDED.4

* Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

Notes

1
One conviction for fleeing or attempting to elude was under subsection (1), fleeing or attempting to elude, and the other was under subsection (2), fleeing or attempting to elude (sirens and lights activated), of Fla. Stat. § 316.1935.
2
At the sentencing hearing, the government disavowed reliance on a fourth conviction to form the basis of the ACCA enhancement. Having expressly disavowed reliance on that offense, the government waived its opportunity to offer evidence and seek a ruling on the fourth conviction‘s status as an ACCA-qualifying offense. United States v. Canty, 570 F.3d 1251, 1257 (11th Cir.2009) (“The Government is entitled to an opportunity to offer evidence and seek rulings from the sentencing court in support of an enhanced sentence. But, the Government is entitled to only one such opportunity, and it had that opportunity at the sentencing hearing.“).
3
The First, Second, Sixth, Seventh, Eighth, and Ninth Circuits are granting applications to file second or successive § 2255 motions based on Johnson. See, e.g., In re Watkins, No. 15-5038, 810 F.3d 375, 2015 WL 9241176 (6th Cir. Dec. 17, 2015); Woods v. United States, 805 F.3d 1152, 1154 (8th Cir. 2015) (per curiam); Rivera v. United States, No. 13-4654 (2nd Cir. Oct. 5, 2015) (ECF No. 44); United States v. Striet, No. 15-72506 (9th Cir. Aug. 25, 2015) (ECF No. 2); Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (per curiam); Price v. United States, 795 F.3d 731, 735 (7th Cir. 2015). The Fifth and Tenth Circuit are not. See In re Williams, 806 F.3d 322, 325-26 (5th Cir. 2015); In re Gieswein, 802 F.3d 1143 (10th Cir. 2015) (per curiam). The Third, Fourth, and D.C. Circuits don‘t appear to have ruled on the question yet. However, the Fourth Circuit has set the question for oral argument later this month, see In re Hubbard, 15-276 (4th Cir. Nov. 24, 2015) (ECF No. 16), and then granted bail pending appeal to an inmate who served over ten years of an ACCA sentence and then applied to file a second or successive motion, see In re Scott, No. 15-291 (4th Cir. Dec. 22, 2015) (ECF No. 11). Notably, the courts that have held Johnson is not retroactive have done so based on “divergent interpretations of the gatekeeper standard.” Felker, 518 U.S. at 667, 116 S.Ct. at 2342 (Souter, J., concurring). Compare Rivero, 797 F.3d at 989-90 (holding that Johnson is not retroactive because it creates a substantive rule that Congress could override); with Williams, 806 F.3d at 322 (holding that Johnson is not retroactive because it creates a procedural rule rather than a substantive one). Fla. Stat. § 316.1935(1) and (2) provide as follows:

(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

(2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

4
This case was originally scheduled for oral argument but was removed from the oral argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).
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