Andrew Levert v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 21, 2019
• Docket: 18-10620
• Status: Unpublished

Opinion

Case: 18-10620 Date Filed: 03/21/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10620 Non-Argument Calendar ________________________

D.C. Docket Nos. 2:16-cv-08084-LSC, 2:01-cr-00164-LSC-TMP-1

ANDREW LEVERT,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee. ________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(March 21, 2019)

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 18-10620 Date Filed: 03/21/2019 Page: 2 of 10

Andrew Levert, proceeding pro se, appeals the district court’s dismissal of his

28 U.S.C. § 2255 motion to vacate. After careful review of the parties’ briefs and

the record, we affirm.

I

Mr. Levert is a federal prisoner serving a 236-month sentence for the

possession of a firearm as a felon in violation of 18 U.S.C. § 922(g). A jury found

him guilty in 2002 and he was sentenced under the mandatory minimum provisions

of the Armed Career Criminal Act (“ACCA”) based on three prior convictions under

California law—two for robbery with a firearm and one for assault with a deadly

weapon. See 18 U.S.C. § 924(e). Mr. Levert’s presentence investigation report (PSI)

stated that the robberies qualified as violent felonies under the residual or elements

clauses of the ACCA, and the assault qualified as a violent felony under the elements

clause. Mr. Levert did not object to the PSI and there was no additional discussion

about his prior convictions during the sentencing hearing. He appealed, and we

affirmed his conviction and sentence. See United States v. Levert, 87 F. App’x 712

(11th Cir. 2003).

In 2002, Mr. Levert filed a motion under 28 U.S.C. § 2255 arguing that he

was denied effective assistance of trial counsel, a fair trial, and effective assistance

of appellate counsel. The district court denied that motion with prejudice. In June

of 2016, following the Supreme Court’s decision in Johnson v. United States, 135

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S. Ct. 2551 (2015), Mr. Levert sought and was granted authorization to file a second

or successive § 2255 motion.

Mr. Levert argued in his motion that his two prior robbery convictions no

longer qualify as violent felonies under the residual clause of ACCA, which Johnson

held void for vagueness. He also argued that his two prior robbery convictions do

not qualify as violent felonies under the elements clause of the ACCA because

California robbery does not require the use, threatened use, or attempted use of

physical force.

Before reaching the merits of the § 2255 motion, the district court considered

whether Mr. Levert had met the requirements for filing a second or successive

application under § 2255(h). It concluded that, under our recent binding precedent

of Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), Mr. Levert had not

demonstrated that it was “more likely than not” that the sentencing court had relied

upon the residual clause—rather than the elements clause—to enhance his sentence

under the ACCA. The district court dismissed Mr. Levert’s § 2255 motion as an

improper successive motion, and he appealed.1

II

1 Because the district court dismissed the § 2255 motion as successive, Mr. Levert does not need a certificate of appealability to appeal. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). 3 Case: 18-10620 Date Filed: 03/21/2019 Page: 4 of 10

Mr. Levert argues on appeal that the standard set forth in Beeman does not

apply and that he need only show that the ACCA sentencing enhancement was no

longer authorized after Johnson voided the residual clause. He also maintains that

the force element of the California robbery statute was unconstitutionally applied in

the computation of his sentence.

We review de novo the district court’s dismissal of a § 2255 motion as second

or successive. See McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).

We also review de novo whether a defendant’s prior conviction qualifies as a violent

felony under the ACCA. See United States v. Hill, 799 F.3d 1318, 1321 (11th Cir.

2015).

A federal prisoner who wishes to file a second or successive motion to vacate,

set aside, or correct his sentence must move the court of appeals for an order

authorizing the district court to consider such a motion. See 28 U.S.C. § 2255(h)

(cross-referencing 28 U.S.C. § 2244). Such authorization may be granted only if we

certify that the second or successive motion contains a claim involving:

(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) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

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28 U.S.C. § 2255(h)(1), (2). A 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.” 28

U.S.C. § 2244(b)(3)(C). Whether or not authorization is granted, “[a] district court

shall dismiss any claim” that does not meet the requirements for filing a second or

successive motion. 28 U.S.C. § 2244(b)(4).

In In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016), we granted a prisoner

leave to file a successive § 2255 motion based on our conclusion that he made a

prima facie showing that his claim fell within the scope of the new substantive rule

announced in Johnson. We explained that our threshold determination did not

conclusively resolve the issue because the language of § 2244, cross referenced in

§ 2255(h), provides that a district court “shall dismiss any claim presented in a

second or successive application that the court of appeals has authorized to be filed

unless the applicant shows that the claim satisfies the requirements of this section.”

28 U.S.C. § 2244(b)(4). Thus, a district court owes no deference to our prima facie

determination and “our first hard look at whether the § 2255(h) requirements

actually have been met will come, if at all, on appeal from the district court’s

decision.” Moore 830 F.3d at 1271 (citation and quotation marks omitted).

We also provided guidance for how the district court should conduct its de

novo review of the § 2255(h) requirements:

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The district court must decide whether or not [the prisoner] was sentenced under the residual clause . . . , whether the new rule in Johnson is implicated . . . , and whether [he] has established the § 2255(h) statutory requirements for filing a second or successive motion. Only then should the district court proceed to consider the merits of the motion, along with any defenses and arguments the respondent may raise. Id. at 1271–72 (citation, quotations, and alterations omitted).

The ACCA, which imposes enhanced prison sentences for certain defendants

with three prior convictions for either violent felonies or serious drug offenses,

defines the term “violent felony” as any crime punishable by a term of imprisonment

exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (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.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is the “elements clause,”

while the second prong includes the “enumerated crimes clause” and what is

typically referred to as the “residual clause.” See United States v. Owens, 672 F.3d

966, 968 (11th Cir. 2012).

In Johnson, the Supreme Court determined that the residual clause is

unconstitutionally vague but noted that its holding did not affect the elements clause.

See 135 S. Ct. at 2557–58, 2563. The Supreme Court later held that Johnson applied

retroactively to cases on collateral review. See Welch v. United States, 136 S. Ct.

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1257, 1268 (2016). Thus, a § 2255 claim challenging a sentence under the residual

clause is known as a “Johnson claim.” A challenge to an improper sentence under

the elements or enumerated crimes clauses, on the other hand, is sometimes called a

“Descamps claim,” after Descamps v. United States, 133 S. Ct. 2276, 2293 (2013),

in which the Supreme Court clarified the “categorical approach” for evaluating

offense elements.

In Beeman v. United States, 871 F.3d 1215, 1218–25 (11th Cir. 2017), we

affirmed a district court’s order denying a prisoner’s original § 2255 motion

asserting that his prior conviction under a Georgia aggravated assault statute was not

a violent felony because Johnson invalidated the residual clause, assault is not

among the enumerated crimes, and Georgia aggravated assault does not qualify as a

violent felony under the elements clause. We determined that the prisoner’s residual

clause and elements clause arguments were two distinct claims: (1) a Johnson claim

that he was sentenced under the ACCA’s residual clause; and (2) a Descamps claim

that he was incorrectly sentenced under the elements clause. Id. at 1220.

We affirmed the district court’s dismissal of the Descamps claim as untimely

under 28 U.S.C. § 2255(f)(3) because Descamps did not announce a new rule of

constitutional law. See id. See also In re Hires, 825 F.3d 1297, 1304 (11th Cir.

2016) (holding that a prisoner could not “use Johnson as a portal to challenge his

ACCA predicates . . . based on Descamps”). We also held that the prisoner failed to

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carry his burden to prove his Johnson claim on the merits because he did not show

that the district court actually relied on the residual clause in applying the ACCA

enhancement. See Beeman, 871 F.3d at 1225. We explained that a prisoner has

failed to meet that burden “[i]f it is just as likely that the sentencing court relied on

the elements or enumerated offenses clause, solely or as an alternative basis for the

enhancement.” Id. at 1221–22.

III

As in Beeman, the district court here identified the two distinct claims raised

in Mr. Levert’s § 2255 motion: (1) a Johnson claim that he was sentenced under the

ACCA’s residual clause; and (2) a Descamps claim that he was incorrectly sentenced

under the elements clause. In conducting its de novo review, the district court

correctly dismissed Mr. Levert’s § 2255 motion as an inappropriate successive

motion because Mr. Levert had not satisfied the requirements of § 2244. See Moore,

830 F.3d at 1271–72; 28 U.S.C. § 2244(b)(4). Under our binding precedent in

Beeman, Mr. Levert cannot show as to his Johnson claim that it is more likely than

not that the sentencing court relied upon the residual clause to enhance his sentence

under the ACCA. See 871 F.3d at 1221–22. The PSI listed both the residual clause

and the elements clause as the bases for classifying his three prior convictions as

predicate violent felonies under the ACCA and the court did not specify at

sentencing whether it relied upon one clause over the other.

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Mr. Levert cites to a recent Ninth Circuit case United States v. Dixon, 805

F.3d 1193, 1199 (9th Cir. 2015), which held that, under the categorical approach,

California robbery does not qualify as a violent felony under the elements clause of

the ACCA. At the time of Mr. Levert’s sentencing, however, relevant case law

established that California robbery did qualify as a violent felony under the elements

clause. See United States v. David H., 29 F.3d 489, 494 (9th Cir. 1994). There is

no additional information in the record that elucidates precisely how the two robbery

convictions were categorized, so it is just as likely that the sentencing court relied

on the elements clause to classify them as violent felonies. See Beeman, 871 F.3d

at 1222.

Mr. Levert’s Descamps claim is untimely. Because Descamps did not state a

new rule of constitutional law, any challenge to Mr. Levert’s sentence based on the

elements clause had to be brought within one year of the date on which his judgment

of conviction became final (which was December 5, 2002). See 28 U.S.C.A. §

2255(f)(1). Mr. Levert cannot “use Johnson as a portal to challenge his ACCA

predicates . . . based on Descamps.” Hires, 825 F.3d at 1304.

Mr. Levert cites to several additional cases in support of his claims, but they

are inapposite. In In re Chance, 831 F.3d 1335 (11th Cir. 2016), we granted a

petitioner’s request for authorization to file a successive motion to vacate his

sentence, which argued that the residual clause found in 18 U.S.C. § 924(c)—similar

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to the residual clause invalidated in Johnson—was unconstitutionally vague. The

panel was clear in Chance that the petitioner still had to prove to the district court

on de novo review that his sentence was unlawful under precedent from the Eleventh

Circuit or the Supreme Court. We later held upheld § 924(c) against the same

unconstitutional vagueness challenge in Ovalles v. United States, 905 F. 3d 1231,

1253 (11th Cir. 2018) (en banc). The recent Supreme Court decision in Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), only invalidated the similar residual clause found

in 18 U.S.C. § 16(b), and its holding, as in Johnson, did not affect the similar

elements clause found in the same statute. Finally, the defendant in Molina-Martinez

v. United States, 136 S. Ct. 1338 (2016), contested the district court’s application of

an incorrect guideline range in sentencing him after he pleaded guilty to being

unlawfully present in the United States after deportation. Molina-Martinez did not

involve a Johnson claim.

IV

Because Mr. Levert has not established that it was more likely than not that

the sentencing court relied on the residual clause in concluding that his two prior

California robbery convictions were violent felonies under the ACCA, and because

the Descamps claim that his sentence was erroneously enhanced under the elements

clause is time-barred, we affirm the district court’s dismissal of his § 2255 motion.

AFFIRMED.