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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10308 ________________________
D.C. Docket Nos. 2:16-cv-08101-CLS, 2:97-cr-00377-CLS-RRA-2
JEROME WILLIAMS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________ (January 13, 2021)
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
This appeal comes to us from a post-judgment challenge to a 1998 federal
sentence. The question on appeal is under what circumstances the legal landscape at USCA11 Case: 19-10308 Date Filed: 01/13/2021 Page: 2 of 27
the time of a defendant’s sentencing can establish, as a matter of historical fact, that
the sentencing court relied on the unconstitutionally vague residual clause of the
Armed Career Criminals Act (“ACCA”) to classify a prior felony as violent and, so,
to increase the defendant’s statutory sentencing range. After the Supreme Court
ruled that the ACCA’s residual clause is unconstitutionally vague and held that its
ruling was retroactive to collateral review, Jerome Williams filed a “Johnson
motion” challenging his sentence for bank robbery. He argued that case law at the
time of his sentencing established that the sentencing court relied on the residual
clause alone to increase his statutory range of sentences and not on one of the
ACCA’s other clauses left unaffected by the Supreme Court’s ruling. The district
court denied this motion, concluding that Williams had not met his burden of proof
to establish that the unconstitutionally vague residual clause affected his sentence.
We affirm.
I.
In 1998, Williams was convicted of robbing a bank while carrying a firearm.
The ACCA provides a statutory sentencing enhancement for certain previously
convicted felons who use a firearm. 18 U.S.C. § 924(e)(1). To qualify for this
enhancement, a defendant must have committed three previous “violent” felonies as
defined by one of the ACCA’s clauses. The sentencing court found that Williams
had committed the following “violent” felonies: Kentucky first-degree robbery,
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Georgia armed robbery, and federal kidnapping. As to the federal kidnapping
conviction, the presentence report recounted that Williams “accosted” a man at a
Kentucky motel, threatened him with a revolver, and demanded a ride to Tennessee.
When they reached Knoxville, the victim leapt from the car and signaled a police
officer, who promptly arrested Williams. Williams was convicted of violating 18
U.S.C. § 1201(a)(1), which provides that a person commits a federal kidnapping
when he “unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries
away and holds for ransom or reward or otherwise any person, except in the case of
a minor by the parent thereof,” and “the person is willfully transported in interstate
or foreign commerce.”
At the sentencing hearing on his bank robbery conviction, Williams did not
object to the application of the ACCA, and the sentencing court never addressed why
any of his previous felonies counted as violent. Applying the ACCA, the sentencing
court sentenced Williams to concurrent terms of 300 months of imprisonment for
bank robbery and 327 months for possession of a firearm by a convicted felon, with
a consecutive term of 60 months for carrying a firearm during and in relation to a
crime of violence.
After serving about 220 months of his sentence, Williams moved for leave to
file his third motion under 28 U.S.C. § 2255. We granted him leave, and he filed the
motion underlying this appeal. He did not dispute that the two robbery convictions
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were violent felonies, but he did argue that the sentencing court had improperly
found his federal kidnapping conviction to be a “violent felony” under the “residual
clause” of the ACCA. Because the Supreme Court had held this clause
unconstitutional and had made its ruling retroactive in Johnson v. United States, 576
U.S. 591 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), respectively,
Williams argued that he was due to be resentenced. Williams did not support his
motion with case-specific evidence that the “residual clause” affected his sentence.
Instead, he argued only that case law at the time of his sentencing established that
more likely than not the sentencing court relied on the residual clause.
After reviewing the then-existing legal landscape, the district court denied
Williams’s motion. The same judge who had sentenced Williams nearly two decades
ago found that the sentencing record failed to illuminate which clause of the ACCA
he had relied on to qualify the kidnapping conviction as a violent felony. As for the
then-existing legal landscape, the district court concluded it was, at best, unclear
which clause or clauses the sentencing court would have relied on. Instead,
persuasive authority supported a sentence under either or both the residual and
elements clauses. Because Williams did not prove the sentencing court more likely
than not relied on only the residual clause to enhance his sentence, the district court
denied his motion.
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We granted Williams a certificate of appealability on the question whether the
district court erred in concluding that he had not made the requisite showing under
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), as to his kidnapping
conviction under 18 U.S.C. § 1201. We have jurisdiction to decide this question
under 28 U.S.C. § 1291 and 28 U.S.C. § 2253.
II.
This appeal raises a mixed question of law and fact. Mixed questions of law
and fact are “questions in which the historical facts are admitted or established, the
rule of law is undisputed, and the issue is whether the facts satisfy the statutory
standard, or to put it another way, whether the rule of law as applied to the
established facts is or is not violated.” Lincoln v. Bd. of Regents of Univ. Sys. of Ga.,
697 F.2d 928, 940 n.15 (11th Cir. 1983) (quoting Pullman-Standard v. Swint, 456
U.S. 273, 289 n.19 (1982)). Our review of a mixed question of law and fact depends
“on whether answering it entails primarily legal or factual work.” U.S. Bank N.A. v.
Village at Lakeridge, LLC, 138 S.Ct. 960, 967 (2018). We apply de novo review
when the question requires a court to “expound on the law, particularly by
amplifying or elaborating on a broad legal standard.” Id. We apply clear error review
when the question requires a court to “marshal and weigh evidence, make credibility
judgments, and otherwise address . . . ‘multifarious, fleeting, special, narrow facts
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that utterly resist generalization.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552,
561–62 (1988)).
A district court may resolve a Johnson motion by making a finding of
historical fact that the sentencing court did or did not rely on a specific clause of the
ACCA. See Beeman, 871 F.3d at 1224 n.5 (“What we must determine is a historical
fact: was [the defendant] in 2009 sentenced solely per the residual clause?”); United
States v. Pickett, 916 F.3d 960, 967 (11th Cir. 2019) (vacating and remanding
because “[t]he district court obviously is in a better position than we are to evaluate
what likely happened . . . , especially since we are remanding this case to the very
judge who initially sentenced [the defendant]”). We would review such a finding for
clear error. But because Williams’s Johnson motion relies exclusively on the state
of the law in 1998 and the district court resolved it by reference to legal principles
alone, the issue before this Court is a mixed question of law and fact that entails
primarily legal work. Accordingly, we review this mixed question of law and fact
de novo. Our decision to apply a de novo standard of review under the circumstances
of this case is consistent with authority from other circuits. See Dimott v. United
States, 881 F.3d 232, 236 (1st Cir. 2018) (“We review de novo the district courts’
denials of [the defendants’] habeas petitions” under Johnson.); Golinveaux v. United
States, 915 F.3d 564, 568 (8th Cir. 2019) (“Determining the legal environment
requires a ‘legal conclusion’ about the controlling law at the time of sentencing,”
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which the court reviews de novo.); United States v. Copeland, 921 F.3d 1233, 1242
(10th Cir. 2019) (“our review of a district court’s denial of a [Section] 2255 Johnson
claim is de novo[,] unless the court conducted an evidentiary hearing from which it
made findings”).
III.
Before we address the specifics of Williams’s argument, a little background
is necessary. The ACCA defines the kind of crimes that count as a “violent felony”
in three ways. First, a felony may qualify as violent under the elements clause of the
ACCA because it “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Second,
a felony may qualify as violent under the enumerated-offenses clause of the ACCA
because it is for “burglary, arson, or extortion, [or] involves use of explosives.” Id.
§ 924(e)(2)(B)(ii). Third, a felony may qualify as violent under the residual clause
of the ACCA because it “otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id.
The Supreme Court held in Johnson that the residual clause is
unconstitutionally vague such that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the Constitution's
guarantee of due process.” Johnson, 576 U.S. at 606. But the Court emphasized that
its “decision does not call into question application of the Act to the four enumerated
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offenses, or the remainder of the Act’s definition of a violent felony.” Id. The
Supreme Court made its decision in Johnson retroactive in Welch, which means the
Court’s decision in Johnson applies even to convictions and sentences that have long
been final. Welch, 136 S.Ct. at 1268.
Thus, because of Johnson and Welch, Williams has filed a Section 2255
motion that seeks resentencing nearly two decades after his original sentence was
imposed. Everyone agrees that Williams is due to be resentenced if the sentencing
court relied on the residual clause of the ACCA to classify his federal kidnapping
conviction as “violent.” To that end, Williams must establish that the residual clause
“actually adversely affected the sentence he received” because “more likely than
not[] it was use of the residual clause that led to the sentencing court’s enhancement
of his sentence.” Beeman, 871 F.3d at 1221–22. And the sentencing court must have
relied only on the residual clause in qualifying the felony as violent. Id. at 1221.
Williams’s Johnson claim fails “[i]f it is just as likely that the sentencing court relied
on the elements . . . clause, solely or as an alternative basis for the enhancement.”
Id. at 1222. Williams can prove this historical fact through direct evidence, such as
“comments or findings by the sentencing judge,” or circumstantial evidence, such as
“statements in the PSR” or “the law . . . at the time of sentencing.” Id. at 1224 nn.4–
5.
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Williams argues that more likely than not the sentencing court classified his
federal kidnapping conviction as a violent felony under the residual clause. He
makes two main arguments. First, Williams argues that it is unlikely the sentencing
court relied on any other clause. Everyone agrees that the second clause for
enumerated offenses has no application here, and Williams argues that case law at
the time of his sentencing makes it unlikely the sentencing court relied on the
elements clause. Williams argues that, before he was sentenced in 1998, we had held
that a defendant could be convicted of federal “kidnapping by inveiglement” without
using force as long as the defendant “formed the intent to use forcible action, in the
event his deception failed, to complete the kidnapping.” United States v. Boone, 959
F.2d 1550, 1555, 1557 (11th Cir. 1992); see also United States v. Lewis, 115 F.3d
1531, 1535 (11th Cir. 1997) (listing elements of federal kidnapping). And we had
instructed sentencing courts applying the ACCA at the time to look “only to the
statutory definitions of the prior offense, and not to the particular facts underlying
those convictions” to determine whether the elements clause applied. United States
v. Oliver, 20 F.3d 415, 418 n.4 (11th Cir. 1994) (quoting Taylor v. United States,
495 U.S. 575, 600 (1990)). Because we had recognized in Boone that the statutory
definition of federal kidnapping includes kidnapping accomplished by inveiglement
and because we had instructed lower courts to look at the elements of a statute to
determine whether an offense is “violent” under the ACCA’s elements clause,
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Williams argues that the sentencing court would have erred under our precedents
had it counted his federal kidnapping conviction as violent under the elements
clause. Second, Williams cites to various courts that, at the time of his sentencing,
had held that federal kidnapping was a violent crime under the ACCA’s residual
clause. E.g., United States v. Phelps, 17 F.3d 1334, 1342 (10th Cir. 1994). Thus, he
suggests that the sentencing court would more likely than not have made the same
decision.
The government’s response is three-fold. First, it argues that Williams is
reading too much into Boone and Lewis, which concerned jury instructions and a
guilty plea, not sentencing. Second, the government cites persuasive authority to
argue that the sentencing court just as likely used the elements clause to categorize
the federal kidnapping conviction as “violent.” The Second Circuit, for example, had
relied on the elements clause to declare a federal kidnapping conviction to be
“violent,” reasoning it “cannot be questioned” that “the crime of kidnapping involves
the threatened use of physical force against a person and is thus a crime of violence
under this statute.” United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992). The
government also points out that we had held that federal kidnapping is a crime of
violence under the elements clause of an identically worded Sentencing Guidelines
provision. United States v. Salemi, 26 F.3d 1084, 1087 (11th Cir. 1994). Third, and
in any event, the government argues that Williams has not met his burden of proof
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merely by showing the elements clause would not likely have justified the sentence;
he must show that the residual clause alone led to the sentencing court’s
enhancement as a matter of historical fact. Case law that merely suggests the
elements clause would not have properly applied in a hypothetical case, the
government argues, is not enough to establish that the residual clause did apply in
this case.
We agree with the government. Because no case-specific evidence exists to
suggest which clause the sentencing court relied on, the only available evidence is
the state of the law at the time of Williams’s sentencing. But this category of
circumstantial evidence tells us very little.
In 1998, our most on-point precedent was Salemi. There, we reversed a district
court when it held that federal kidnapping was not a crime of violence under the
elements clause of a sentencing guideline. Salemi, 26 F.3d at 1087. At the time, the
Sentencing Guidelines were “binding on judges” and carried “the force and effect of
laws.” United States v. Booker, 543 U.S. 220, 234 (2005). And the guideline in
Salemi, like the ACCA, provided that a crime would count as violent if it had as “an
element the use, attempted use, or threatened use of physical force.” 26 F.3d at 1087
(quoting U.S.S.G. § 4B1.2)(internal quotations marks omitted). We explained that
the Sentencing Commission had “recognized that kidnapping inherently involves the
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threat of violence.” Id. And we held that “[k]idnapping is a violent crime” under this
elements clause. Id.
In response to Salemi, Williams cites Boone and Lewis. These authorities
discuss the statutory elements of federal kidnapping, and they do not include “force”
as one of those elements. But neither Boone nor Lewis affirmed a conviction for
nonforcible kidnapping or categorized federal kidnapping for sentencing purposes.
In Boone, the defendant was convicted of kidnapping when he tricked his victim into
crossing state lines “to murder and rob him.” 959 F.2d at 1556. The trial judge had
instructed the jury that tricking someone to cross “state lines is … in and of itself
conduct proscribed by the federal kidnapping statute.” Id. at 1555. We reversed. We
held that “a kidnapping by inveiglement requires the alleged kidnapper to have
formed the intent to use forcible action” to carry out the kidnapping. Id. at 1557. In
Lewis, we affirmed a guilty plea for federal kidnapping where the defendant “beat
[the victim] into unconsciousness.” 115 F.3d at 1533. Even though the defendant
said that he did not intend to take his victim across state lines, we held his plea to be
knowing and voluntary. Id. at 1535-36.
Based on these precedents and the equally ambiguous precedents from our
sister circuits, we cannot say that the sentencing judge did not rely in part on the
elements clause when he sentenced Williams. A sentencing judge looking at the
legal landscape in 1998 could have thought that he would be reversed like the
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sentencing judge in Salemi if he held that federal kidnapping did not satisfy the
ACCA’s identical elements clause. Or he could have treated the issue as one of first
impression, held that there was no force element to a federal kidnapping, and relied
exclusively on the residual clause. Had a hypothetical sentencing court confronted
this question in the 1990s, we cannot say how it would have answered it. Thus, it is
doubly difficult for us to conclude that the particular sentencing court in Williams’s
case—as a matter of historical fact—answered it by not applying the elements
clause.
We previously faced a similarly uncertain legal landscape in Pickett, where
the defendant argued that his felony offense qualified under the residual clause and
it was “uncertain at best” whether it also qualified under the elements clause. 916
F.3d at 964. We held that such a motion fails if it was “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 963 (quoting Beeman, 871 F.3d at
1222). Even if the residual clause were the “most obvious clause under which the
convictions qualified,” it “does not necessarily mean even by implication that the
elements clause could not also have been relied on.” Id. at 965.
In Pickett, the defendant relied on two opinions from this Court, neither of
which was binding. The first was an unpublished table decision stating that the
offense at issue “did not categorically satisfy the elements clause.” Id. (citing United
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States v. Rozier, 37 F. App’x 499 (11th Cir. 2002)). The second was an unpublished
opinion holding that the offense at issue was not always a violent felony—based
only on another circuit’s holding that the offense did not always satisfy the elements
clause. Id. (citing United States v. Wright, 181 F. App’x 914 (11th Cir. 2006)). We
explained that, legally, “[n]othing in this collection of cases amounts to binding
precedent” and that, practically, it was doubtful the district court even saw the table
decision. Id. The government in turn relied on dicta from this Court that an offense
was a crime of violence under an analogous elements clause in the Sentencing
Guidelines. Id. at 965–66. After reviewing these decisions, we found they offered a
“very weak circumstantial read” of the sentencing judge’s thoughts, and we were
“unable to conclude that it is more likely than not that the district court relied only on
the residual clause.” Id. at 966. “[A]bsent clear precedent showing that the court
could only have used one clause or another,” merely persuasive authority on the state
of the law is insufficient to determine the sentencing court’s reasoning. Id. at 964.
The legal landscape here is as uncertain as it was in Pickett. As in Pickett, we
conclude that, “[f]aced with this uncertain precedential landscape,” the sentencing
court “likely would have quickly determined” that Williams’s federal kidnapping
conviction “qualified under the residual clause.” Id. at 966. “[B]ut we do not know
what else it might have thought.” Id. These authorities do not establish “either what
the court thought about the elements clause—or even whether the court thought
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about it at all.” Id. Of course, “[w]ith the residual clause plainly available, the district
court would not have needed to consider the elements clause.” Id. But that is beside
the point. As a matter of historical fact, “we genuinely do not know what actually
happened.” Id.
The otherwise smooth application of Pickett to this case does have one
wrinkle. Unlike in Pickett, Williams argues that if the sentencing court had relied on
the elements clause, it would have been an error under binding precedents from this
Court, namely our view of the federal kidnapping statute and our categorical
approach to the elements clause. Our dissenting colleague agrees with Williams. He
says that Pickett is “easily distinguishable” because here “Supreme Court and
Eleventh Circuit precedent required the use of the categorical approach under the
elements clause of the ACCA (Taylor and Oliver), and Eleventh Circuit precedent
held that federal kidnapping could be accomplished without the use, attempted use,
or threatened use of physical force (Boone and Lewis).” Dissenting Op. at 24.
We are unpersuaded that our 1990s case law meaningfully distinguishes this
case from Pickett. This is so for two reasons.
First, Williams and our dissenting colleague too quickly discount our decision
in Salemi, in which we held that federal kidnapping was violent under the elements
clause of an identically worded sentencing guideline. By clouding our case law on
this point, Salemi greatly diminishes the relevance of Boone and Lewis. To be
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certain, Salemi is distinguishable because it concerned a sentencing guideline, not a
statute. It is possible—maybe even highly likely—that we would hold today that
federal kidnapping does not satisfy the elements clause of the ACCA. See United
States v. Gillis, 938 F.3d 1181, 1210 (11th Cir. 2019) (holding, as a matter of first
impression, that federal kidnapping is not a crime of violence under 18 U.S.C. §
373(a)). But we had not decided this issue in 1998. And the question before us now
is not how a hypothetical sentencing court should have ruled on a question that was
never presented. The question under Pickett is what the sentencing court could have
done, as a matter of historical fact, when it sentenced Williams. And, in part because
of Salemi, case law provides no satisfactory answer in Williams’s favor.
Second, because Williams and our dissenting colleague’s approach requires
carefully parsing circa-1998 precedents, it necessarily sheds too little light on the
historical question at issue here. Absent authority that would have compelled a
particular result in 1998, Williams cannot meet his burden of proof through case law
alone. The question for us is, as a matter of historical fact, on which clause did the
sentencing court hang Williams’s sentence? Because there is no clear precedent on
point, we believe the answer is simple, if unsatisfying: we do not know. The
sentencing court in 1998 had read an unobjected-to presentence report that described
a violent kidnapping at gunpoint, no one objected to the application of the ACCA at
the time, and there were authorities from this Court and others that supported the
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notion that kidnapping is an inherently violent offense. Against this backdrop, we
would merely be guessing if we were to say that the sentencing court had relied on
the residual clause alone.
Williams argues that this result is unfair and arbitrary, but we disagree. Our
case law in this area “reflects longstanding and fundamental interests in finality.”
Beeman, 871 F.3d at 1223. Williams has raised a very particular kind of claim—a
retroactive claim about an unconstitutionally vague sentencing enhancement. At his
sentencing two decades ago, Williams could have raised a constitutional claim or
litigated the statutory issue of whether the elements clause could justify the
enhancement. But, only now, after more than eighteen years, has Williams
challenged whether his kidnapping conviction counts as a violent felony. For
Williams’s collateral attack to succeed, he needs to establish that the sentencing
court committed a specific kind of error, a retroactive constitutional one. It is not
enough that the sentencing court might have committed a statutory error—the
application of the elements clause in a case that did not warrant it—because that
error would not be retroactive on collateral review.
Williams also argues that, in requiring him to come forward with “clear
precedent showing that the court could only have used one clause or another,”
Pickett, 916 F.3d at 964, we are applying something higher than a more-likely-than-
not standard. Again, we disagree. The root problem here is that Williams is relying
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on circumstantial evidence which, when unclear, has little to no bearing on the
ultimate issue. As a hypothetical, imagine a jury trying to determine who was at fault
in a car accident. As in this case, the sole evidence is circumstantial—a local
business’s security footage, focused not on the intersection where the accident
occurred, but on the street a few yards away. If the footage shows the traffic suddenly
stop shortly before the time of the accident, the jury might be persuaded that the cars
had stopped at a red light that the offending car ran, causing the accident. If the
footage shows an empty street or stalled rush hour traffic, the circumstantial
evidence does not tell the factfinder much about the disputed issue at all. The law at
the time of Williams’s sentencing is more like these latter examples than the former.
Because the authorities that Williams cites are not clear, they fail to shed light on
what the sentencing court did as a matter of historical fact.
We have held that “[i]t is no more arbitrary to have a movant lose in a
[Section] 2255 proceeding because of a silent record than to have the [g]overnment
lose because of one.” Beeman, 871 F.3d at 1224. When a case turns on an issue of
historical fact, the available evidence, whether traffic footage or the legal landscape
of yesteryear, must satisfy the burden of proof on the disputed issue. If the evidence
is silent or in equipoise, then the party with the burden fails. So it is here.
IV.
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Because the district court did not err in denying Williams’s motion, the district
court’s judgment is AFFIRMED.
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JORDAN, Circuit Judge, dissenting:
I agree with my colleagues in the majority—and with the Eighth and Tenth
Circuits—that de novo review is appropriate because we, like the district court, are
only reviewing the legal landscape in 1998 to determine whether the residual clause
was used to classify Mr. Williams’ federal kidnapping conviction as a violent felony
under the ACCA, 18 U.S.C. § 924(e). See Golinveaux v. United States, 915 F.3d
564, 568 (8th Cir. 2019); United States v. Driscoll, 892 F.3d 1127, 1132–33 (10th
Cir. 2017). But that plenary review leads me to a different conclusion—that Mr.
Williams has proven, by a preponderance of the evidence, that the district court
enhanced his sentence in reliance only on the ACCA’s residual clause. With respect,
therefore, I dissent.
I
Mr. Williams was convicted in 1998 of, among other crimes, possession of a
firearm by a convicted felon. At his sentencing, the district court found that Mr.
Williams had previously committed three violent felonies as defined in the ACCA,
and therefore enhanced his sentence. See 18 U.S.C. § 924(e).
One of those prior felonies was federal kidnapping, in violation of 18 U.S.C.
§ 1201(a)(1). The presentence investigation report was silent as to which ACCA
clause made the federal kidnapping conviction a violent felony. At sentencing,
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neither the parties nor the district court discussed or identified the ACCA clause
under which federal kidnapping constituted a violent felony.
After Mr. Williams was sentenced, the Supreme Court struck down the
ACCA’s residual clause in Johnson v. United States, 576 U.S. 591 (2015), and later
made that ruling retroactive in Welch v. United States, 136 S. Ct. 1257 (2016). So,
if Mr. Williams can establish that the district court classified his federal kidnapping
conviction as a violent felony under only the ACCA’s unconstitutional residual
clause, he can have his sentence vacated and be resentenced. See 28 U.S.C. § 2255.
II
For Mr. Williams to succeed, he must show, by a preponderance of evidence,
that the district court relied only on the ACCA’s residual clause with respect to his
federal kidnapping conviction. See Beeman v. United States, 871 F.3d 1215, 1221–
22 (11th Cir. 2017). The preponderance of evidence standard does not require Mr.
Williams to make that showing to a high degree of certainty. Instead, “the
preponderance-of-the-evidence standard results in a roughly equal allocation of the
risk of error between litigants.” Grogan v. Garner, 498 U.S. 279, 286 (1991).
Accordingly, Mr. Williams meets his evidentiary burden so long as the evidence
“tip[s] the scales just one little bit in [his] favor.” Blossom v. CSX Transp., Inc., 13
F.3d 1477, 1479 (11th Cir. 1994).
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To meet that burden, Mr. Williams can rely on direct evidence. Or he can rely
on circumstantial evidence, such as the legal landscape at the time of sentencing. See
Beeman, 871 F.3d at 1224 nn.4–5. Circumstantial evidence is “[e]vidence based on
inference.” Black’s Law Dictionary 698 (11th ed. 2019). See also United States v.
Henderson, 693 F.2d 1028, 1031 (11th Cir. 1982). The tests for the sufficiency of
direct and circumstantial evidence are identical. See United States v. Doe, 661 F.3d
550, 560 (11th Cir. 2011).
III
Because the record in Mr. Williams’ criminal case does not indicate which of
the ACCA’s clauses the district court relied on to classify his federal kidnapping
conviction as a violent felony, the parties and the majority properly focus on the
legal landscape at the time of his sentencing. Based on that legal landscape, I believe
that it is more likely than not that the district court relied only on the ACCA’s
residual clause to classify Mr. Williams’ federal kidnapping conviction as a violent
felony.
At the time of Mr. Williams’ 1998 sentencing, we (and the Supreme Court)
had instructed district courts to employ a categorical approach to determine whether
an offense constituted a violent felony under the ACCA’s elements clause, i.e., by
“looking only to the statutory definitions of the prior offense.” United States v.
Oliver, 20 F.3d 415, 418 (11th Cir. 1994) (quoting Taylor v. United States, 495 U.S.
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575 (1990)). See also United States v. Gonzalez-Lopez, 911 F.2d 542, 546 (11th Cir.
1990). As a result, for federal kidnapping to constitute a violent felony under the
ACCA’s elements clause, its statutory elements must have required the use,
attempted use, or threatened use of physical force. See 18 U.S.C. § 924(e)(2)(B)(i).
We had also ruled by 1998 that federal kidnapping did not require the use,
attempted use, or threatened use of physical force. For example, in United States v.
Boone, 959 F.2d 1550, 1555 (11th Cir. 1992), we held that federal kidnapping could
be accomplished through inveiglement (i.e., seduction) or decoy given the text of 18
U.S.C. § 1201(a)(1).
The majority argues that in Boone we held that “a kidnapping by inveiglement
requires the alleged kidnapper to have formed the intent to use forcible action.”
Boone 959 F.2d at 1558. But the suggestion that Boone is unclear as it relates to an
elements clause analysis fails for two reasons. First, the “force” discussed in Boone
can be either psychological or physical, see id., while the ACCA’s elements clause
requires that physical force be an essential element of the predicate offense. Second,
what we held in Boone was that kidnapping by inveiglement or deception requires
the kidnapper to have subjectively intended to employ force (psychological or
physical) if the inveiglement or deception were to fail. See id. at 1555–58. Logically,
the victim need not be aware of the kidnapper’s subjective intent to employ force if
the victim were to discover that he is being inveigled or deceived. See id. at 1556. In
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short, Boone establishes that federal kidnapping does not require the use, attempted
use, or threatened use of physical force.
Additionally, in United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997),
we identified the elements of federal kidnapping under § 1201(a)(1) without any
reference to physical force. The majority notes that in Lewis the defendant used
physical force against the victim to effect the kidnapping. But, as everyone agrees,
in 1998 courts were required to use the categorical approach to determine whether
an offense constituted a violent felony under the ACCA’s elements clause. Thus,
what is relevant about Lewis is its statement on the elements of federal kidnapping.
Indeed, it would have been reversible error for the Lewis panel (or for this court in
any other case) to have relied on the underlying offense conduct when employing
the categorical approach.
In the Eleventh Circuit, therefore, a district court in 1998 could not have
properly used the ACCA’s elements clause to classify federal kidnapping as a violent
felony. After all, district courts are “presumed to know the law and apply it in making
their decisions.” Walden v. Arizona, 497 U.S. 639, 653 (1990). Accord United States
v. $242,484.00, 389 F.3d 1149, 1155 (11th Cir. 2004) (en banc) (noting the
“presumption that a judge knows and correctly applied the law”). Stated differently,
a district court in the Eleventh Circuit in 1998 could only have used the ACCA’s
residual clause to characterize federal kidnapping as a violent felony. Indeed, before
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1998 the Ninth and Tenth Circuits had applied the categorical approach and ruled
that similar state kidnapping statutes—statutes which permitted kidnapping to be
carried out without force—constituted violent felonies only under the ACCA’s
residual clause. See United States v. Sherbondy, 865 F.2d 996, 1009 (9th Cir. 1988);
United States v. Phelps, 17 F.3d 1334, 1342 (10th Cir. 1994).
To recap, as things stood in 1998, Supreme Court and Eleventh Circuit
precedent required the use of the categorical approach under the elements clause of
the ACCA (Taylor and Oliver), and Eleventh Circuit precedent held that federal
kidnapping could be accomplished without the use, attempted use, or threatened use
of physical force (Boone and Lewis). Those cases render United States v. Pickett,
916 F.3d 960, 965–66 (11th Cir. 2019), where the relevant legal landscape was void
of binding precedent, easily distinguishable.
IV
The majority reasons that United States v. Salemi, 26 F.3d 1084, 1087 (11th
Cir. 1994), which held that federal kidnapping was a violent crime under U.S.S.G.
§ 4B1.2, “diminished the relevance of Boone.” I disagree for a couple of reasons.
First, Salemi relied on Application Note 2 to § 4B1.2, which “include[d]
kidnapping in its listing of crimes that are crimes of violence.” Salemi, 26 F.3d at
1087. Salemi seems to have been correctly decided given that commentary in the
Sentencing Guidelines Manual that “interprets or explains a guideline is
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authoritative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508
U.S. 36, 38 (1993). But there is (and was) no such binding commentary to the
ACCA’s elements clause. Salemi, therefore, cannot cast doubt on Boone.
Second, Salemi—a guideline decision—could not overrule Boone, an earlier
opinion explaining how federal kidnapping could be accomplished without the use,
attempted use, or threatened use of force. See United States v. Steele, 147 F.3d 1316,
1318 (11th Cir. 1998) (en banc) (explaining the prior panel precedent rule). And to
the extent that Salemi may have caused some confusion, Lewis later confirmed that
federal kidnapping did not have as an element the use, attempted use, or threatened
use of force. Boone and Lewis were binding precedent in 1998 and remained more
relevant to an elements clause analysis than Salemi.
In my view, it is more likely than not that the district court relied only on the
residual clause in Mr. Williams’ case to conclude that federal kidnapping was a
violent felony under the ACCA. Given the legal landscape in 1998, that is an easier
inference to make than the alternatives—that the district court (i) did not apply the
categorical approach (contrary to Supreme Court and Eleventh Circuit precedent);
(ii) found that the use, attempted use, or threatened use of physical force was an
essential statutory element of federal kidnapping (contrary to Eleventh Circuit
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precedent); or (iii) otherwise erred in applying, or failing to apply, existing law
(contrary to the presumption that district courts know and follow the law).
V
Under de novo review, I conclude that the legal landscape in 1998 tips the
scales in favor of Mr. Williams. And given the preponderance of evidence standard,
that is all that is required. I would reverse and remand for Mr. Williams to be
resentenced without the ACCA enhancement.