Demetrius Lee Banks v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 16, 2021
• Docket: 20-12012
• Status: Unpublished

Opinion

USCA11 Case: 20-12012 Date Filed: 09/16/2021 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12012 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:16-cv-00217-AW-GRJ; 1:99-cr-00006-AW-GRJ-1

DEMETRIUS LEE BANKS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee. ________________________

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

(September 16, 2021)

Before WILSON, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

Demetrius Banks appeals the district court’s dismissal of his motion to vacate

under 28 U.S.C. § 2255, brought pursuant to Johnson v. United States, 576 U.S. 591 USCA11 Case: 20-12012 Date Filed: 09/16/2021 Page: 2 of 12

(2015). To succeed under our precedent, Mr. Banks was required to prove that, more

likely than not, the district court enhanced his sentence in reliance solely on the

ACCA’s residual clause. See Beeman v. United States, 871 F.3d 1215, 1221–22

(11th Cir. 2017). The district court concluded that Mr. Banks had not met that

burden, and accordingly dismissed his § 2255 motion. Because the district court did

not err, we affirm.

I

In 1999, Mr. Banks pled guilty to, among other crimes, possession of a firearm

as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At the

time, Mr. Banks had prior convictions for multiple offenses, including seven 1981

convictions under Florida’s burglary statute. The 1981 version of Florida’s burglary

statute defined burglary as “entering or remaining in a structure or conveyance with

the intent to commit an offense therein.” Fla. Stat. § 810.02(1) (1981). And it defined

the term “structure” as “any building of any kind . . . together with the curtilage

thereof.” § 810.11(1).

Applying the Armed Career Criminal Act, 18 U.S.C. § 924(e), the district

court enhanced Mr. Banks’ sentence and sentenced him to 188 months’

imprisonment for his § 922(g)(1) conviction. The court did not identify which clause

of the ACCA it relied on to enhance Mr. Banks’ felon-in-possession sentence. In

conjunction with the sentences for the other crimes he pled guilty to, the court

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sentenced Mr. Banks to a total of 548 months’ imprisonment.

Mr. Banks subsequently filed multiple motions under 28 U.S.C. § 2255. All

were unsuccessful. Then, in 2016, Mr. Banks filed an application seeking an order

from us authorizing the district court to consider a successive § 2255 motion. He

argued that Johnson articulated a new rule of constitutional law that made his

ACCA-enhanced sentence unconstitutional. See 28 U.S.C. §§ 2244(b)(3),

2255(h)(2). We granted the application, and Mr. Banks then filed the instant § 2255

motion.

Mr. Banks explained in his motion that in Johnson the Supreme Court had

held the ACCA’s residual clause to be unconstitutionally vague. And, in his view,

none of his 1981 burglary convictions qualified as a violent felony under the

ACCA’s enumerated offenses or elements clauses. Hence, when he was sentenced

in 1999, he did not have the required three violent felony convictions that would

permit an ACCA enhancement, making his 188-month sentence on the felon-in-

possession offense unconstitutional. See 18 U.S.C. § 924(e)(1). Mr. Banks therefore

requested that he be resentenced on that offense without the ACCA enhancement.

The government responded that the district court did not have jurisdiction to

consider the successive § 2255 motion because Mr. Banks could not show that it was

based on “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.

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§ 2255(h)(2). See also 28 U.S.C. § 2244(b)(4) (“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.”). In particular, the government argued that, when Mr.

Banks was sentenced for his § 922(g)(1) offense in 1991, the law allowed the district

court to classify his prior burglary convictions as violent felonies under the ACCA’s

enumerated offenses clause. In the government’s view, Mr. Banks’ motion therefore

did not fall within the scope of Johnson, and accordingly was not based on a new

rule of constitutional law.

Mr. Banks disagreed. He replied that, based on the law at the time of his

sentencing, the district court would most likely have sentenced him under the now-

unconstitutional residual clause.

A magistrate judge issued a report recommending that the district court

dismiss Mr. Banks’ § 2255 motion for lack of jurisdiction. The magistrate judge

concluded that Mr. Banks had not established that his sentence had been enhanced

under the residual clause, and thus he had fallen short of satisfying § 2255(h)(2)’s

requirement that his case be encompassed by the new rule of constitutional law set

forth in Johnson. Mr. Banks did not file any objections to the report and

recommendation.

The district court adopted the report and recommendation. The district court

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noted that neither the presentence investigation report (“PSR”) nor the sentencing

transcript indicated whether the court had relied on the ACCA’s residual clause to

enhance Mr. Banks’ felon-in-possession sentence. It also concluded that Mr. Banks

had not shown that the law at the time he was sentenced allowed his burglary

convictions to constitute violent felonies solely under the residual clause.

Consequently, the district court ruled that Mr. Banks had failed to prove that his

sentence had been enhanced solely under the residual clause and dismissed his

§ 2255 motion for lack of jurisdiction.

We issued Mr. Banks a certificate of appealability on the following question:

“Whether it is more likely than not that the sentencing court relied on the residual

clause of [the ACCA] when sentencing Mr. Banks as an armed career criminal, in

violation of [Johnson].”

II

According to the government, because Mr. Banks failed to object to the report

and recommendation, he waived his challenge to the district court’s dismissal based

on unobjected to factual and legal conclusions, and we hence should review the

district court’s dismissal for plain error. Under our rules, plain error indeed is

generally the resulting standard of review when a party fails to object to a report and

recommendation. See 11th Cir. R. 3–1.

On the other hand, the court dismissed Mr. Banks’ motion for lack of

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jurisdiction, and jurisdiction is a matter that can never be waived. See United States

v. Cotton, 535 U.S. 625, 630 (2002) (“[D]efects in subject-matter jurisdiction require

correction regardless of whether the error was raised in district court.”); McCoy v.

United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (“[J]urisdictional errors are not

subject to plain- or harmless-error analysis.”).

We generally review de novo the dismissal of a § 2255 motion for lack of

jurisdiction. See Randolph v. United States, 904 F.3d 962, 964 (11th Cir. 2018). We

need not decide which standard of review is applicable here because Mr. Banks fails

to meet his burden even under plenary review.

III

Mr. Banks maintains on appeal that he proved that, more likely than not, the

district court enhanced his sentence relying solely on the residual clause. We instead

agree with the district court that Mr. Banks did not meet his burden of proof.

A

To explain our conclusion, some background on the relevant legal framework

is required. Under the ACCA, a defendant who is convicted of violating § 922(g)(1)

faces a 15-year mandatory minimum sentence (and a maximum sentence of life

imprisonment) if he has three prior convictions (known as “predicate offenses”) for

a “serious drug offense” or “violent felony.” See 18 U.S.C. § 924(e)(1). The ACCA

has historically defined the term “violent felony” as a felony that is encompassed by

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any of its three clauses: the elements clause, the enumerated offenses clause, and the

residual clause. See § 924(e)(2)(B). Relevant for our purposes are the enumerated

offenses and the residual clauses. The enumerated offenses clause defines a “violent

felony” as a felony that “is burglary, arson, or extortion, [or] involves use of

explosives.” § 924(e)(2)(B)(ii). The catch-all residual clause defines the term as a

felony that “involves conduct that presents a serious potential risk of physical injury

to another.” Id.

In Johnson, the Supreme Court struck down the residual clause as

unconstitutionally vague. See Johnson, 576 U.S. at 597. And it later held that

Johnson announced a new substantive rule that applied retroactively to cases on

collateral review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

In Beeman, we detailed what a defendant must do to succeed on a § 2255

motion premised on Johnson. We held that a defendant must show that, more likely

than not, the court relied solely on the residual clause to enhance his sentence. See

Beeman, 871 F.3d at 1221–22. To do so, a movant can rely on direct evidence (e.g.,

statements in the sentencing record indicating that the district court likely relied on

the residual clause) or circumstantial evidence (e.g., the legal landscape at the time

of sentencing that evinced that the court likely relied on the residual clause). See id.

at 1224 nn.4–5.

The upshot of those cases is that defendants like Mr. Banks can vacate or

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correct their sentences via a § 2255 motion if they establish that, more likely than

not, the district court of sentencing classified their predicate offenses as violent

felonies in reliance only on the now-defunct residual clause.

B

Mr. Banks argues that the legal landscape existing in 1999 required the district

court to rely only on the residual clause to classify his seven 1981 burglary

convictions as ACCA violent felonies. None of the relevant documents in the record

contains information that would allow the district court to classify his burglary

convictions as violent felonies under the enumerated offenses clause (and the

applicability of the elements clause is not at issue). Because, legally, the district court

could rely only on the residual clause to enhance his sentence, it is more likely than

not that it did so.

As Mr. Banks’ argument is based on the legal landscape at the time of his

sentencing, we turn to that terrain. In Taylor v. United States, 495 U.S. 575 (1990),

the Supreme Court distinguished between two types of burglary: generic and non-

generic. Generic burglary, the Supreme Court stated, encompasses only burglaries

that have “the basic elements of unlawful or unprivileged entry into, or remaining

in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599.

It also confirmed that the enumerated offenses clause’s reference to “burglary”

encompasses only convictions for generic burglary. See id.

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But what to do with convictions under non-generic burglary statutes—i.e.,

statutes that sanction generic burglary and, more broadly, non-generic burglary? The

Supreme Court answered that to determine whether a particular conviction was for

generic burglary courts generally could look only to the statutory definition of the

predicate offense. See Taylor, 495 U.S. at 602. Thus, convictions under non-generic

statutes usually could not be classified as violent felonies under the enumerated

offenses clause. Yet the Supreme Court allowed for an exception “in a narrow range

of cases where a jury was actually required to find all the elements of generic

burglary” to convict. Id. To determine whether a jury was required to find the

elements of generic burglary, courts could rely on the charging document and jury

instructions. See id.

Taylor itself raised various questions. The relevant one for the present case

was what to do when a defendant pleads guilty and therefore precludes creation of

jury instructions? We answered that question in United States v. Adams, 91 F.3d

114, 116 (11th Cir. 1996), where we explained that a defendant does not escape the

application of the ACCA’s enumerated offenses clause by pleading guilty. We held

that courts may rely on information contained in PSRs to determine whether prior

burglary convictions under non-generic statutes were for generic burglary. See id.1

1 The Supreme Court later confirmed in Shepard v. United States, 544 U.S. 13, 26 (2005), that to determine whether a plea agreement under a non-generic statute necessarily admitted the 9 USCA11 Case: 20-12012 Date Filed: 09/16/2021 Page: 10 of 12

The parties agree that the version of the Florida burglary statute under which

Mr. Banks was convicted in 1981 was non-generic, and indeed it sanctioned not only

entry into structures, but also the structure’s curtilage and conveyances. See Fla. Stat.

§§ 810.02 & 810.011 (1981). The sentencing record is silent as to which of the

ACCA’s clauses the district court relied on to enhance Mr. Banks’ sentence.

Consequently, Mr. Banks is correct that this case turns on the legal landscape at the

time of sentencing—specifically, Taylor and Adams.

The PSR from Mr. Banks’ 1999 sentencing describes his 1981 burglaries as

crimes in which he “burglarized the residence[s]” of seven different victims. The

government contends that this information allowed the district court of sentencing

to comfortably find that Mr. Banks’ 1981 burglary convictions were for generic

burglary. Mr. Banks counters that the word “residence” should not be understood as

referring only to physical structures and can instead be read as encompassing the

curtilage. Based on such a reading, the district court would have been unable to

conclude that he had been convicted of generic burglary.

Our opinion in Williams v. United States, 795 F. App’x 676 (11th Cir. 2019)

commission of a generic offense, courts can consider “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant.” The parties reference those documents, known as Shepard documents, in their briefs, but their arguments do not turn on consideration of any Shepard document other than the 1999 PSR. 10 USCA11 Case: 20-12012 Date Filed: 09/16/2021 Page: 11 of 12

convinces us that the government has the better argument. In Williams, we

considered whether two burglary convictions under a later but similar version of

Florida’s burglary statute qualified as violent felonies under the ACCA’s

enumerated offenses clause. We explained that, at the time of the defendant’s

convictions, Florida’s burglary statute “defined burglary as ‘entering or remaining

in a dwelling . . . with the intent to commit an offense therein.’” Williams, 795 F.

App’x at 680 (discussing Flat. Stat. § 810.02 (1989)). We also noted that under the

statute the term “dwelling” included both a building and its curtilage. See id. But we

also differentiated between the two convictions due to a distinction that is dispositive

in this case. With respect to the earlier burglary conviction, we explained that

because the PSR indicated only that the defendant had entered the yard north of a

residence, it established, at best, entry into the curtilage. See id. at 681. As to the

second conviction, however, we explained that the district court could have

classified it as a violent felony under the ACCA’s enumerated offenses clause

because the defendant’s PSR described the offense as “burglarizing a residence.”

See id. In other words, we considered that the district court could construe the term

“residence” or the phrase “burglarizing a residence” as evincing a conviction for

burglary involving “unlawful or unprivileged entry into, or remaining in, a building

or structure, with intent to commit a crime,” i.e., a generic burglary. See Taylor, 495

U.S. at 599.

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The situation regarding Mr. Banks’ 1981 burglary convictions is substantively

indistinguishable. Mr. Banks’ PSR describes his crimes as the burglarizing of

residences. Given our discussion in Williams, which we find persuasive, we cannot

find that the law in 1999 permitted the district court to rely only on the residual

clause to classify Mr. Banks’ burglary convictions as violent felonies for purposes

of the ACCA. See Beeman, 871 F.3d at 1224 n.5. As Mr. Banks’ premise falls, so

does his conclusion. We therefore hold that Mr. Banks has not met his burden of

establishing that, more likely than not, the district court relied only on the residual

clause to enhance his sentence.2

IV

For the foregoing reasons, we affirm the district court’s order dismissing Mr.

Banks’ § 2255 motion for lack of jurisdiction.

AFFIRMED.

2 Mr. Banks also argues that Beeman was wrongly decided. But right or wrong, we are bound by it. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (“Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong.”).