Case: 17-14813 Date Filed: 08/01/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14813 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:16-cv-21409-JEM; 1:04-cr-20482-JEM-1
GERALDO GOMEZ,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 1, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-14813 Date Filed: 08/01/2018 Page: 2 of 6
Geraldo Gomez appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct sentence, following our grant of his
application for leave to file a second or successive § 2255 motion based on
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Gomez argues
that his Florida convictions for attempted first-degree murder and arson are no
longer violent felonies under the Armed Career Criminal Act (“ACCA”) in light of
Johnson. The government responds that Gomez cannot show he was actually
sentenced under ACCA’s residual clause, as required by this Court’s decision in
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), which was issued after
the district court denied Gomez’s motion.
I.
On November 10, 2004, a jury convicted Gomez of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gomez was sentenced
to 235-months imprisonment. This sentence was based, in part, on the district
court’s determination that Gomez qualified as an armed career criminal. ACCA
provides for a sentence of no less than fifteen years for a defendant who violates
§ 922(g) and has three or more prior convictions for a “violent felony” or a
“serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is defined 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 2 Case: 17-14813 Date Filed: 08/01/2018 Page: 3 of 6
(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 part of this definition is known as the “elements
clause.” See Mays v. United States, 817 F.3d 728, 730–31 (11th Cir. 2016) (per
curiam). The second part of this definition contains both the “enumerated offenses
clause” and the “residual clause.” Id.
In Johnson, the Supreme Court held that ACCA’s residual clause was
unconstitutionally vague. 135 S. Ct. at 2563. The Court made this rule retroactive
in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016). In 2016,
Gomez filed an application seeking authorization from this Court to file a second
or successive § 2255 motion in order that he could challenge his sentence based on
the Johnson ruling. After a panel of this Court granted his application, the
government argued Gomez still qualified for the longer sentence under ACCA
based on Florida convictions for (1) attempted first-degree murder with a firearm;
(2) aggravated assault; and (3) first-degree arson.
A magistrate judge recommended that Gomez’s petition be denied. First,
the magistrate judge considered whether Gomez met the statutory requirements for
filing a second or successive motion. The magistrate judge observed that the
standard for making a Johnson claim was “far from settled with the Eleventh
Circuit.” The magistrate judge noted the conflicting standards set forth in In re 3 Case: 17-14813 Date Filed: 08/01/2018 Page: 4 of 6
Moore, 830 F.3d 1268, 1273 (11th Cir. 2016) (per curiam), which required a
defendant to show he was sentenced under the residual clause, and In re Chance,
831 F.3d 1335, 1341–42 (11th Cir. 2016), which required a defendant to show it
was unclear under which clause he was sentenced and that his sentence was no
longer lawful under § 924(c). The magistrate judge said the In re Chance approach
was more sensible and determined Gomez met that threshold requirement. The
magistrate judge then reached the merits of Gomez’s claim and determined that his
convictions for Florida attempted first-degree murder, aggravate assault, and arson
still qualified as ACCA predicates. The district court adopted the magistrate
judge’s recommendations and denied Gomez’s motion. This Court granted Gomez
a Certificate of Appealability (“COA”) on whether Gomez’s Florida convictions
for attempted first-degree murder and arson still qualified as ACCA predicates
post-Johnson.
II.
In reviewing a district court’s denial of a § 2255 motion, we review de novo
the court’s legal conclusions and review for clear error the court’s factual findings.
Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). We
review de novo whether a defendant’s prior conviction qualifies as a violent felony
under ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015) (per
curiam).
4 Case: 17-14813 Date Filed: 08/01/2018 Page: 5 of 6
Appellate review is ordinarily limited to the issues specified in the COA.
Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998) (per curiam).
However, procedural issues that must be resolved before we can address the claim
specified in a COA are presumed to be encompassed in the COA. McCoy v.
United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (reviewing as within the
scope of the COA whether the movant’s § 2255 motion was procedurally barred
when the district court had not addressed the issue).
In Beeman, a panel of this Court held that to prove a claim based on
Johnson, a movant must show it is “more likely than not” that “it was use of the
residual clause that led to the sentencing court’s enhancement of his sentence.”
871 F.3d 1221–22. This inquiry is one of “historical fact,” looking to the basis for
the sentence at the time of sentencing. Id. at 1224 n.5. Before Beeman, the
showing required to present a Johnson claim was disputed. Compare Moore, 830
F.3d at 1273, with Chance, 831 F.3d at 1341–42. Indeed, the magistrate judge
noted split authority on the subject before deciding to follow the standard set out in
In re Chance.
The status of Florida convictions for attempted first-degree murder and
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Case: 17-14813 Date Filed: 08/01/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14813 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:16-cv-21409-JEM; 1:04-cr-20482-JEM-1
GERALDO GOMEZ,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(August 1, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 17-14813 Date Filed: 08/01/2018 Page: 2 of 6
Geraldo Gomez appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct sentence, following our grant of his
application for leave to file a second or successive § 2255 motion based on
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Gomez argues
that his Florida convictions for attempted first-degree murder and arson are no
longer violent felonies under the Armed Career Criminal Act (“ACCA”) in light of
Johnson. The government responds that Gomez cannot show he was actually
sentenced under ACCA’s residual clause, as required by this Court’s decision in
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), which was issued after
the district court denied Gomez’s motion.
I.
On November 10, 2004, a jury convicted Gomez of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gomez was sentenced
to 235-months imprisonment. This sentence was based, in part, on the district
court’s determination that Gomez qualified as an armed career criminal. ACCA
provides for a sentence of no less than fifteen years for a defendant who violates
§ 922(g) and has three or more prior convictions for a “violent felony” or a
“serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is defined 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 2 Case: 17-14813 Date Filed: 08/01/2018 Page: 3 of 6
(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 part of this definition is known as the “elements
clause.” See Mays v. United States, 817 F.3d 728, 730–31 (11th Cir. 2016) (per
curiam). The second part of this definition contains both the “enumerated offenses
clause” and the “residual clause.” Id.
In Johnson, the Supreme Court held that ACCA’s residual clause was
unconstitutionally vague. 135 S. Ct. at 2563. The Court made this rule retroactive
in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016). In 2016,
Gomez filed an application seeking authorization from this Court to file a second
or successive § 2255 motion in order that he could challenge his sentence based on
the Johnson ruling. After a panel of this Court granted his application, the
government argued Gomez still qualified for the longer sentence under ACCA
based on Florida convictions for (1) attempted first-degree murder with a firearm;
(2) aggravated assault; and (3) first-degree arson.
A magistrate judge recommended that Gomez’s petition be denied. First,
the magistrate judge considered whether Gomez met the statutory requirements for
filing a second or successive motion. The magistrate judge observed that the
standard for making a Johnson claim was “far from settled with the Eleventh
Circuit.” The magistrate judge noted the conflicting standards set forth in In re 3 Case: 17-14813 Date Filed: 08/01/2018 Page: 4 of 6
Moore, 830 F.3d 1268, 1273 (11th Cir. 2016) (per curiam), which required a
defendant to show he was sentenced under the residual clause, and In re Chance,
831 F.3d 1335, 1341–42 (11th Cir. 2016), which required a defendant to show it
was unclear under which clause he was sentenced and that his sentence was no
longer lawful under § 924(c). The magistrate judge said the In re Chance approach
was more sensible and determined Gomez met that threshold requirement. The
magistrate judge then reached the merits of Gomez’s claim and determined that his
convictions for Florida attempted first-degree murder, aggravate assault, and arson
still qualified as ACCA predicates. The district court adopted the magistrate
judge’s recommendations and denied Gomez’s motion. This Court granted Gomez
a Certificate of Appealability (“COA”) on whether Gomez’s Florida convictions
for attempted first-degree murder and arson still qualified as ACCA predicates
post-Johnson.
II.
In reviewing a district court’s denial of a § 2255 motion, we review de novo
the court’s legal conclusions and review for clear error the court’s factual findings.
Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). We
review de novo whether a defendant’s prior conviction qualifies as a violent felony
under ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015) (per
curiam).
4 Case: 17-14813 Date Filed: 08/01/2018 Page: 5 of 6
Appellate review is ordinarily limited to the issues specified in the COA.
Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998) (per curiam).
However, procedural issues that must be resolved before we can address the claim
specified in a COA are presumed to be encompassed in the COA. McCoy v.
United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (reviewing as within the
scope of the COA whether the movant’s § 2255 motion was procedurally barred
when the district court had not addressed the issue).
In Beeman, a panel of this Court held that to prove a claim based on
Johnson, a movant must show it is “more likely than not” that “it was use of the
residual clause that led to the sentencing court’s enhancement of his sentence.”
871 F.3d 1221–22. This inquiry is one of “historical fact,” looking to the basis for
the sentence at the time of sentencing. Id. at 1224 n.5. Before Beeman, the
showing required to present a Johnson claim was disputed. Compare Moore, 830
F.3d at 1273, with Chance, 831 F.3d at 1341–42. Indeed, the magistrate judge
noted split authority on the subject before deciding to follow the standard set out in
In re Chance.
The status of Florida convictions for attempted first-degree murder and
arson as ACCA predicate convictions is still an open question in this circuit.1 But
1 The district court found arson qualified as violent crimes under ACCA’s enumerated offenses clause and attempted first-degree murder qualified under the elements clause. But Gomez argues that Florida arson is broader than generic arson because Florida arson can be 5 Case: 17-14813 Date Filed: 08/01/2018 Page: 6 of 6
according to Beeman, before we can perform that analysis, Gomez must show that
his sentence was more likely than not based on the residual clause. Beeman, 871
F.3d at 1221–22. Beeman was decided after the district court ruled on Gomez’s
petition. As a result, the record is not fully developed on this point.
Because the parties had no occasion to address the requirement established
by Beeman in the district court, a remand is appropriate. See Schumann v. Collier
Anesthesia, P.A., 803 F.3d 1199, 1203 (11th Cir. 2015) (remanding after this Court
adopted a new legal test “[t]o allow the district court to apply this test in the first
instance and, if the district court desires, to give the parties an opportunity to
further develop the record to address the components of the test”). On remand, the
district court should consider in the first instance whether Gomez can show, as a
historical fact, it was more likely than not he was sentenced under the residual
clause. Beeman, 871 F.3d 1221–22. This inquiry can include, among other things,
a review of the record at Gomez’s sentencing, as well as consideration of how
courts viewed the statutes under which Gomez had previously been convicted, and
how courts interpreted other similar statutes at the time he received his ACCA
sentence.
VACATED AND REMANDED.
committed “while in the commission of any felony,” which does not necessarily require the “intentional or malicious burning of property with the purpose of destroying the building of another” of generic arson. Gomez also argues that Florida attempted first-degree murder can be committed through “the surreptitious poisoning or drugging of the victim,” which “does not involve the use of violent force sufficient to satisfy the ACCA’s force clause.” 6