Case: 17-13116 Date Filed: 08/09/2018 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13116 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:16-cv-02225-ODE, 1:09-cr-00081-ODE-LTW-1
JUAN RAMON WINFREY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 9, 2018)
Before TJOFLAT, NEWSOM and HULL, Circuit Judges.
PER CURIAM: Case: 17-13116 Date Filed: 08/09/2018 Page: 2 of 16
Juan Ramon Winfrey, a federal prisoner represented by counsel, appeals the
district court’s denial of his counseled 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his 240-month sentence on his Count Three felon-in-possession-
of-a-firearm conviction under 18 U.S.C. § 922(g)(1). Winfrey’s prior Georgia
felony convictions subjected him to a mandatory minimum fifteen-year sentence
and increased his statutory maximum sentence on Count Three from ten years to
life imprisonment under the Armed Career Criminal Act (“ACCA”). After review,
we affirm the district court’s ruling that Winfrey’s § 2255 motion was timely, but
vacate the district court’s order denying Winfrey’s § 2255 motion on the merits
and remand for further proceedings consistent with this opinion.
I. BACKGROUND FACTS
A. Conviction
In 2008, Winfrey and his co-defendant, Umar Yamini, approached a man at
a gas station, robbed the man at gunpoint, and drove away in the man’s Chevrolet
Monte Carlo. A short time later, police officers spotted and pulled over the Monte
Carlo, which was being driven by Winfrey. After a brief pursuit on foot, Winfrey
and Yamini were arrested. The victim later identified Winfrey as the man who
brandished the firearm and took his car keys and money.
In 2009, a federal grand jury charged Winfrey in three counts with: (1)
aiding and abetting carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (“Count
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One”); (2) aiding and abetting possession and brandishing of a firearm during and
in relation to a crime of violence, namely the carjacking charged in Count One, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (“Count Two”); and (3) possession
of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count
Three”). In 2010, after a three-day trial, a jury convicted Winfrey on all three
counts.
As to Count Three, the indictment listed four prior Georgia convictions,
including two robbery convictions in 1989 and 1992, respectively, a theft by taking
conviction in 1991, and an aggravated assault conviction in 1993. In this § 2255
case, Winfrey challenges only his 240-month sentence as to Count Three. We
review how that sentence was calculated.
B. Sentencing
Winfrey’s presentence investigation report (“PSI”) separately calculated a
total offense level of 24 for Counts One (the carjacking offense) and Three (the
felon-in-possession offense). The PSI applied a two-level multiple-count
adjustment pursuant to U.S.S.G. § 3D1.4 for a combined total offense level of 26
for Counts One and Three. Pursuant to U.S.S.G. § 2K2.4(b), the PSI did not
include Count 2 (the § 924(c) firearm offense) because the mandatory minimum
seven-year consecutive sentence for that offense was set by statute.
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The PSI also stated that, as to Count Three, Winfrey qualified as an armed
career criminal because he had three prior Georgia convictions for a crime of
violence, specifically: (1) robbery in 1989; (2) robbery in 1992; and (3) aggravated
assault in 1993.
As to the 1989 robbery conviction, the PSI reports that in August 1988,
Winfrey was arrested and charged with armed robbery and murder after he and
three other individuals stole a motor vehicle from the victim “by use of a revolver
which resulted in the death of said victim.” In 1989, Winfrey pled guilty to a
reduced charge of robbery and was sentenced to ten years’ probation as a first
offender. According to the state court plea colloquy, which Winfrey’s counsel
submitted to the federal sentencing court, the murder charge was moved to the
dead docket, and Winfrey entered an Alford plea to the robbery because Winfrey
only hit the victim one time and got back in the car and did not know “the trigger
man” or that a murder was going to take place.
As to the 1992 robbery conviction, Winfrey was arrested for robbery after
stealing a victim’s wallet and money “by force and intimidation.” In May 1992,
Winfrey pled guilty to robbery and was sentenced to three years’ probation.
As to the February 1993 aggravated assault conviction, Winfrey was arrested
after he “physically assaulted” the victim “while demanding his property.”
Winfrey pled guilty in 1993 and was sentenced to ten years in prison.
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Only Winfrey’s 1993 aggravated assault conviction and his 2002 criminal
trespass and stalking conviction received criminal history points—3 points and 1
point, respectively—for a total of 4 points, which resulted in criminal history
category of III. Without the armed career criminal designation, Winfrey’s total
offense level of 26 and criminal history category of III would have yielded an
advisory guidelines range of 78 to 97 months for Counts One and Three. See
U.S.S.G. ch. 5, pt. A, sentencing table (2008).
Because Winfrey was an “armed career criminal,” however, he was assigned
a criminal history category of VI, pursuant to U.S.S.G. § 4B1.4(c)(2).1 Also as a
result of Winfrey’s armed career criminal status, the PSI recommended a total
offense level of 34, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), which yielded an
advisory guidelines range of 262 to 327 months in prison for Counts One and
Three.
The PSI also stated that as to the carjacking conviction in Count One, the
statutory maximum was 15 years and that as to the felon-in-possession conviction
in Count Three, under the ACCA, the mandatory minimum was 15 years and the
maximum was life. As to the § 924(c) firearm offense in Count Two, the
1 Under U.S.S.G. § 4B1.4, “[a] defendant who is subject to an enhanced sentence under 18 U.S.C. § 924(e) [the ACCA] is an armed career criminal,” and may be subject to an increased offense level and criminal history category. See U.S.S.G. § 4B1.4(a)-(c). 5 Case: 17-13116 Date Filed: 08/09/2018 Page: 6 of 16
mandatory minimum sentence was seven years, which was required to be served
consecutively to any other sentence.2
Winfrey did not object to: (1) the PSI’s description of his conduct giving rise
to his Georgia felonies; or (2) the PSI’s designation of him as an armed career
criminal or to any of his ACCA-qualifying predicate convictions. Moreover, at his
April 29, 2010 sentencing hearing, Winfrey agreed that he qualified as an armed
career criminal under the Sentencing Guidelines and the ACCA. As a
consequence, the district court did not discuss the ACCA sentence enhancement as
to Count Three.
After resolving Winfrey’s objections, which are not relevant to the issues
raised in his § 2255 motion, the district court calculated an advisory guidelines
range of 262 to 327 months as to Counts One and Three and granted Winfrey a 22-
month downward variance. Specifically, the district court imposed: (1) a 180-
month sentence on the carjacking conviction in Count One, which was the
statutory maximum, (2) a 240-month sentence on the § 922(g)(1) felon-in-
possession conviction in Count Three, to run concurrently with Count One; and (3)
a mandatory consecutive 84-month sentence on his § 924(c) firearm conviction in
Count Two.
2 In his § 2255 motion and on appeal, Winfrey makes no challenge to his conviction or sentence on Count Two. 6 Case: 17-13116 Date Filed: 08/09/2018 Page: 7 of 16
B. Direct Appeal
Winfrey appealed his convictions and sentences, but did not raise any issue
as to his ACCA-enhanced sentence on Count Three or the calculation of his
advisory guidelines range under U.S.S.G. § 4B1.4 as to Counts One and Three. On
November 19, 2010, this Court affirmed Winfrey’s convictions and sentences.
United States v. Winfrey, 403 F. App’x 432 (11th Cir. 2010). Winfrey’s
convictions became final on February 17, 2011, ninety days after the time to file a
petition for certiorari in the Supreme Court expired.
C. Section 2255 Proceedings
On June 26, 2015, the Supreme Court issued its decision in Johnson v.
United States, which invalidated the ACCA’s residual clause as unconstitutionally
vague. See Johnson, 576 U.S. ___, ___, 135 S. Ct. 2551, 2563 (2015).
On June 24, 2016, Winfrey filed this counseled § 2255 motion, arguing that
his 240-month sentence as to his § 922(g)(1) felon-in-possession conviction in
Count Three was no longer valid after Johnson. Specifically, Winfrey argued that,
although his prior Georgia convictions for robbery and aggravated assault
“historically qualified as ACCA predicates,” they “no longer” qualified as violent
felonies under the ACCA because “the ACCA’s residual clause, the potential basis
for Mr. Winfrey’s ACCA-enhanced sentence,” was invalidated by Johnson and
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because his prior convictions did not qualify under the ACCA’s still-valid elements
clause.
In opposing Winfrey’s § 2255 motion, the government filed copies of state
court records pertaining to Winfrey’s prior convictions, including the charging
documents and final dispositions, which showed that Winfrey was convicted of:
(1) robbery “by the use of force” in 1992; (2) aggravated assault “by striking and
beating [the victim] with his hands and fists” in 1993; and (3) and robbery “by
intimidation,” the lesser included offense of armed robbery in 1988.
The district court denied Winfrey’s § 2255 motion. The district court
concluded that Winfrey’s claim based on Johnson was timely. The district court
denied Winfrey’s Johnson claim without addressing Winfrey’s burden of proof.
Instead, the district court concluded that the Georgia offenses of robbery by force,
robbery by intimidation, and aggravated assault all qualified as violent felonies
under the ACCA’s elements clause and that Winfrey’s sentence on Count Three
was properly enhanced under the ACCA.
In the same order, the district court acknowledged the “dearth of Eleventh
Circuit guidance in this case” and granted a certificate of appealability (“COA”) on
“whether Georgia robbery by force, robbery by intimidation, and aggravated
assault qualify as ‘violent felonies’ for the purposes of the ACCA.”
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After the district court’s § 2255 decision in this case, and while Winfrey’s
appeal was pending, this Court decided Beeman v. United States, 871 F.3d 1215
(11th Cir. 2017). Beeman addressed the timeliness of a § 2255 movant’s Johnson
claim (as opposed to a claim based on Descamps v. United States, 570 U.S. 254,
133 S. Ct. 2276 (2013)) under 28 U.S.C. § 2255(f) and also the burden of proof a
§ 2255 movant must meet to prevail on a Johnson claim. Beeman, 871 F.3d at
1219-25. Based on Beeman, the government’s appeal brief argues that Winfrey’s
§ 2255 motion raised an untimely Descamps claim rather than a timely Johnson
claim, and, alternatively, that Winfrey did not carry his burden of proof to establish
a Johnson claim. 3
II. DISCUSSION
A. Standard of Review
In reviewing a district court’s denial of a § 2255 motion, this Court reviews
the district court’s legal conclusions de novo and its factual findings for clear error.
Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). Further, this Court
reviews de novo a district court’s determination whether a § 2255 motion is time-
barred. Beeman, 871 F.3d at 1219.
3 The district court’s COA encompasses the underlying threshold procedural issues raised in the government’s brief, including whether Winfrey’s has raised a timely Johnson claim and what burden of proof Winfrey must meet to prevail on a Johnson claim, which must be resolved before this Court can reach the merits of the issue specified in the COA. See McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001). 9 Case: 17-13116 Date Filed: 08/09/2018 Page: 10 of 16
B. General Principles
The ACCA provides that a person convicted of an 18 U.S.C. § 922(g)
firearm offense faces a fifteen-year mandatory minimum prison term if he has
three or more prior convictions for a “violent felony or a serious drug offense.” 18
U.S.C. § 924(e)(1). The ACCA 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 referred to as the
“elements” clause, while the second prong contains the “enumerated crimes”
clause and what is commonly called the “residual” clause. United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012).
On June 26, 2015, the Supreme Court in Johnson held that the ACCA’s
residual clause was unconstitutionally vague. 576 U.S. at ____, 135 S. Ct. at 2557-
58, 2563. The Supreme Court clarified, however, that its decision did not call into
question the application of the ACCA’s elements or enumerated crimes clauses.
Id. at ____, 135 S. Ct. at 2563. Subsequently, the Supreme Court held that
Johnson announced a new substantive rule that applied retroactively to cases on
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collateral review. Welch v. United States, 578 U.S. ___, ___, 136 S. Ct. 1257,
1268 (2016).
B. Time Bar under § 2255(f)
Under 28 U.S.C. § 2255(f), the one-year statute of limitations for filing a
§ 2255 motion begins to run on the latest of several possible triggering dates,
including the date on which the judgment becomes final or “the date on which the
right asserted was initially recognized by the Supreme Court . . . and made
retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(1), (3).
As this Court explained in Beeman, the § 2255(f) statute of limitations “requires a
claim-by-claim approach to determine timeliness.” Beeman, 871 F.3d at 1219
(quotation marks omitted). Thus, if a § 2255 movant asserts that his motion is
timely because he filed it within one year of the Supreme Court’s issuance of a
decision recognizing a new right, the Court must determine whether each claim
asserted in the § 2255 motion depends on that new Supreme Court decision. Id.
Beeman also explained the difference between a claim based on Johnson and
a claim based on Descamps. To assert a claim based on Johnson, the movant must
contend that he was sentenced under the ACCA’s now-void residual clause. Id. at
1220. A claim that the movant was incorrectly sentenced under the ACCA’s
elements or enumerated crimes clauses is not a Johnson claim but rather a
Descamps claim. Id. at 1220. In Descamps, the Supreme Court held that when the
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statute of conviction has only a “single, indivisible set of elements,” sentencing
courts may consider only the statute’s language to determine whether the
conviction qualifies as a “violent felony” under the ACCA’s elements clause.
Descamps, 570 U.S. at 258, 133 S. Ct. at 2282. This Court has held that Descamps
applies retroactively to cases on collateral review, but has noted that Descamps did
not set out a constitutional right newly recognized by the Supreme Court. See
Mays v. United States, 817 F.3d 728, 733-34 (11th Cir. 2016).
Based on the foregoing, to be timely under § 2255(f)(3), a § 2255 motion
raising a Johnson claim must be filed within one year of the Johnson decision.
Beeman, 871 F.3d at 1219. A Descamps claim, on the other hand, “cannot rely on
subsection (f)(3) as the starting point for the calculation of the limitations period”
and the movant “must file his motion within one year of the other trigger dates set
out in § 2255(f).” Id. at 1220-21 (concluding that the movant’s Descamps claim
was untimely but that he raised a timely Johnson claim where the § 2255 motion
was filed 19 days before the one-year anniversary of Johnson).
Here, the district court correctly concluded that Winfrey’s § 2255 motion
was timely to the extent it raised a Johnson claim that he was sentenced under the
ACCA’s now-void residual clause. Winfrey’s conviction became final on
February 17, 2011, ninety days after the time to file a petition for certiorari in the
Supreme Court expired. See Winfrey, 403 F. App’x at 432; Kaufmann v. United
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States, 282 F.3d 1336, 1339 (11th Cir. 2002). Winfrey filed his § 2255 motion on
June 24, 2016, well past the one-year deadline for challenging final convictions,
but within the deadline for challenging a sentence under Johnson, which was
decided on June 26, 2015.
We note, however, that to the extent Winfrey attempted to bring a Descamps
claim—a claim that he was wrongly sentenced under the elements clause of the
ACCA—that claim, like the Descamps claim in Beeman, is untimely.
C. Beeman and Winfrey’s Johnson Claim
Under our Court’s binding precedent in Beeman, to prevail on a Johnson
claim, “the movant must show that—more likely than not—it was use of the
residual clause that led to the sentencing court’s enhancement of his sentence.”
See Beeman, 871 F.3d at 1221-22. “If 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, then the movant has failed to show that his
enhancement was due to the use of the residual clause.” Id. at 1222.
Each case must be judged on its own record, and different kinds of evidence
can be used to show that a sentencing court actually relied on the residual clause.
Id. at 1224 n.4. For example, a record may contain direct evidence in the form of a
sentencing judge’s comments or findings indicating that the residual clause was
essential to an ACCA enhancement. Id. Further, a record may contain sufficient
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circumstantial evidence, such as unobjected-to PSI statements recommending that
the enumerated offenses clause or the elements clause did not apply or concessions
made by the prosecutor that those two clauses did not apply. Id. In addition, the
movant may point to precedent at the time of the sentencing “holding, or otherwise
making obvious,” that the prior conviction “qualified as a violent felony only under
the residual clause.” Id. at 1224.
Importantly, this inquiry is a question of “historical fact”—whether at the
time of sentencing the defendant was sentenced solely under the residual clause.
Id. at 1224 n.5. A decision today that a prior conviction “no longer qualifies under
present law as a violent felony under the elements clause (and thus could now
qualify only under the defunct residual clause) would be a decision that casts very
little light, if any, on the key question of historical fact . . . .” Id.
In sum, a § 2255 movant can carry his burden of proof “only (1) if the
sentencing court relied solely on the residual clause, as opposed to also or solely
relying on either the enumerated offenses clause or elements clause (neither of
which were called into question by Johnson) to qualify a prior conviction as a
violent felony, and (2) if there were not at least three other prior convictions that
could have qualified under either of those two clauses as a violent felony, or as a
serious drug offense.” Id. at 1221. If the record is unclear or silent as to whether
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the sentencing court relied on the residual clause, then the movant has not met his
burden, and his claim must be denied. Id. at 1224-25.
Here, because Beeman was decided after the district court ruled on
Winfrey’s § 2255 motion, the parties did not have an opportunity to address the
import of Beeman in the district court. Further, the district court did not have an
opportunity to apply Beeman’s standard to Winfrey’s Johnson claim. That is, the
district court did not address whether Winfrey had carried his burden to prove,
more likely than not, that the sentencing court in 2009, as a matter of “historical
fact,” relied solely upon the residual clause to find that Winfrey’s Georgia
aggravated assault, robbery-by-force, and robbery-by-intimidation convictions
qualified as violent felonies under the ACCA. See Beeman, 871 F.3d at 1224 n.5.
If Winfrey cannot make this showing, he is not entitled to relief under Johnson
even if his predicate Georgia convictions no longer qualify as violent felonies
under current precedent. See id. at 1224-25 & n.5. We note also that the district
court judge ruling upon Winfrey’s Johnson claim is also the district court judge
who imposed Winfrey’s ACCA-enhanced sentence on Count Three.
Under these particular circumstances, we conclude that remand is
appropriate in this case. See Long v. United States, 626 F.3d 1167, 1170 (11th Cir.
2010) (explaining that in a § 2255 case a remand may be appropriate to allow the
district court to develop an adequate record or make sufficiently clear findings to
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facilitate this Court’s review of the ultimate merit of any issues for which a COA
was granted). On remand, the district court shall consider in the first instance
whether Winfrey has shown, as a historical fact, that his sentence on Count Three
was more likely than not enhanced under the ACCA’s now-void residual clause.
III. CONCLUSION
We affirm the district court’s determination that Winfrey’s § 2255 motion
raising a Johnson claim is timely. However, we vacate the district court’s May 17,
2017 order denying Winfrey’s § 2255 motion and remand so that the district court
in the first instance can address Winfrey’s Johnson claim as to Count Three in light
of Beeman. This does not preclude the district court from making any alternative
rulings it deems appropriate. Rather, this is to say the district court should address
the Beeman issue first.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.