[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12770 Non-Argument Calendar ________________________
D.C. Docket Nos. 6:16-cv-01167-GAP-GJK, 6:06-cr-00165-GAP-DCI-2
PAVIS LEVAR GRAY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(December 5, 2019)
Before MARCUS, FAY and HULL, Circuit Judges.
PER CURIAM:
Pavis Levar Gray, a federal prisoner, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, in which he challenged an Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), enhancement to his total sentence
based on being sentenced under the now-unconstitutional residual clause in 18
U.S.C. § 924(e). We affirm.
I. BACKGROUND
Gray pled guilty to conspiracy to possess with intent to distribute five grams
or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii), 846 (count one);
possession with intent to distribute five grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2 (count two); possession of a
firearm and ammunition by a convicted felon,1 in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), (e)(1) (count three); and possession with intent to distribute
five grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii)
(count four).
The presentence investigation report (“PSI”) noted that Gray’s ACCA
charge was based on “numerous felonies” but did not specify which ones were
considered. In determining the total offense level, the PSI applied the career
offender enhancement using Gray’s three convictions for battery on a detention
center staff member, as well as single convictions for aggravated fleeing and
1 In the indictment, the government asserted that Gray was a felon in possession of a firearm based on prior convictions in five Florida state criminal cases: three convictions for battery upon a staff member of a detention center or facility, convictions for possessing cocaine and resisting an officer with violence, and a conviction for aggravated fleeing and eluding. 2 eluding, possession of cannabis with intent to sell, and sale of cocaine. The PSI
described Gray’s criminal history and noted his other convictions, including a 1999
conviction for “Resisting Arrest Without Violence,” in addition to the previously
noted convictions. In paragraph 56, the PSI indicated that Gray was convicted of
“Possession of Cannabis With Intent to Sell” and “Possession of Less Than 20
Grams of Cannabis”; he was sentenced to 10 years of imprisonment and 185 days
of imprisonment, respectively. The PSI listed the offense’s state court case
number and the narrative indicated that “[c]ocaine and marijuana were found
inside the vehicle.” The PSI determined that Gray’s total offense level was 31, his
criminal history category was VI, and his guideline range was 188-235 months of
imprisonment, with a statutory minimum sentence of 15 years of imprisonment.
At sentencing, Gray did not object to the PSI’s “factual content,” nor did he
object when the district court asked him if he objected to “the criminal history
points as they’re reflected in the [PSI]” or the career offender enhancement under
the Guidelines. The government clarified that the PSI had a typographical error
indicating that Gray was convicted of resisting arrest without violence when he
actually was convicted of resisting arrest with violence. The government did not
object to paragraph 56.
The court corrected the PSI, as requested, and Gray did not object. He also
did not object when the government introduced certified copies of his three
3 convictions for battery of a detention center officer and his single convictions for
resisting arrest with violence and aggravated fleeing and eluding. The district
court then sentenced him to a total of 188 months of imprisonment followed by 4
years of supervised release. Gray appealed, raising an issue not relevant to the
present appeal; we affirmed. United States v. Gray, 284 F. App’x 775 (11th Cir.
2008).
In 2015, the Supreme Court held that the ACCA’s residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, 135 S.
Ct. 2551, 2563 (2015). This prompted Gray to file the instant 28 U.S.C. § 2255
motion in 2016. Gray argued that his ACCA-enhanced sentence for count four
was unconstitutional because, without the residual clause, he did not have three
qualifying convictions. He argued that the government, at his 2007 sentencing,
waived reliance on his conviction for cocaine possession with intent to sell because
the PSI mistakenly labeled it as a cannabis conviction, which the government
“could not and did not rely on . . . as an ACCA predicate at sentencing given the
[PSI] error.” He argued that the government’s failure to state its reliance on prior
convictions as ACCA predicates effectively waived the issue.
The district court noted that neither the parties nor the PSI identified which
convictions were used for the ACCA enhancement at sentencing in 2007. It then
determined that Gray’s convictions for resisting arrest with violence and selling
4 cocaine were both ACCA-predicate offenses. Additionally, it determined that the
government did not waive reliance on the mislabeled conviction because the
government did not explicitly disavow reliance on any convictions, there was no
discussion of the ACCA at sentencing, and Gray did not object to the
government’s use of his prior convictions or application of the ACCA. Citing
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the court concluded that
Gray was not entitled to resentencing because he still had three qualifying
convictions for the ACCA enhancement, and nothing indicated that his count four
sentence was based solely on the residual clause. Thus, the court denied his
motion.
Gray appealed, and a member of this Court granted him a certificate of
appealability on the issue of “whether the government waived reliance on Mr.
Gray’s possession with intent to distribute cannabis conviction as an ACCA
predicate.” We stayed Gray’s appeal pending issuance of a decision in Tribue v.
United States, 929 F.3d 1326 (11th Cir. 2019); however, Tribue has since been
decided.
On appeal, Gray argues that the government waived the ability to correct and
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12770 Non-Argument Calendar ________________________
D.C. Docket Nos. 6:16-cv-01167-GAP-GJK, 6:06-cr-00165-GAP-DCI-2
PAVIS LEVAR GRAY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(December 5, 2019)
Before MARCUS, FAY and HULL, Circuit Judges.
PER CURIAM:
Pavis Levar Gray, a federal prisoner, appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, in which he challenged an Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), enhancement to his total sentence
based on being sentenced under the now-unconstitutional residual clause in 18
U.S.C. § 924(e). We affirm.
I. BACKGROUND
Gray pled guilty to conspiracy to possess with intent to distribute five grams
or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii), 846 (count one);
possession with intent to distribute five grams or more of cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2 (count two); possession of a
firearm and ammunition by a convicted felon,1 in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2), (e)(1) (count three); and possession with intent to distribute
five grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii)
(count four).
The presentence investigation report (“PSI”) noted that Gray’s ACCA
charge was based on “numerous felonies” but did not specify which ones were
considered. In determining the total offense level, the PSI applied the career
offender enhancement using Gray’s three convictions for battery on a detention
center staff member, as well as single convictions for aggravated fleeing and
1 In the indictment, the government asserted that Gray was a felon in possession of a firearm based on prior convictions in five Florida state criminal cases: three convictions for battery upon a staff member of a detention center or facility, convictions for possessing cocaine and resisting an officer with violence, and a conviction for aggravated fleeing and eluding. 2 eluding, possession of cannabis with intent to sell, and sale of cocaine. The PSI
described Gray’s criminal history and noted his other convictions, including a 1999
conviction for “Resisting Arrest Without Violence,” in addition to the previously
noted convictions. In paragraph 56, the PSI indicated that Gray was convicted of
“Possession of Cannabis With Intent to Sell” and “Possession of Less Than 20
Grams of Cannabis”; he was sentenced to 10 years of imprisonment and 185 days
of imprisonment, respectively. The PSI listed the offense’s state court case
number and the narrative indicated that “[c]ocaine and marijuana were found
inside the vehicle.” The PSI determined that Gray’s total offense level was 31, his
criminal history category was VI, and his guideline range was 188-235 months of
imprisonment, with a statutory minimum sentence of 15 years of imprisonment.
At sentencing, Gray did not object to the PSI’s “factual content,” nor did he
object when the district court asked him if he objected to “the criminal history
points as they’re reflected in the [PSI]” or the career offender enhancement under
the Guidelines. The government clarified that the PSI had a typographical error
indicating that Gray was convicted of resisting arrest without violence when he
actually was convicted of resisting arrest with violence. The government did not
object to paragraph 56.
The court corrected the PSI, as requested, and Gray did not object. He also
did not object when the government introduced certified copies of his three
3 convictions for battery of a detention center officer and his single convictions for
resisting arrest with violence and aggravated fleeing and eluding. The district
court then sentenced him to a total of 188 months of imprisonment followed by 4
years of supervised release. Gray appealed, raising an issue not relevant to the
present appeal; we affirmed. United States v. Gray, 284 F. App’x 775 (11th Cir.
2008).
In 2015, the Supreme Court held that the ACCA’s residual clause, 18 U.S.C.
§ 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, 135 S.
Ct. 2551, 2563 (2015). This prompted Gray to file the instant 28 U.S.C. § 2255
motion in 2016. Gray argued that his ACCA-enhanced sentence for count four
was unconstitutional because, without the residual clause, he did not have three
qualifying convictions. He argued that the government, at his 2007 sentencing,
waived reliance on his conviction for cocaine possession with intent to sell because
the PSI mistakenly labeled it as a cannabis conviction, which the government
“could not and did not rely on . . . as an ACCA predicate at sentencing given the
[PSI] error.” He argued that the government’s failure to state its reliance on prior
convictions as ACCA predicates effectively waived the issue.
The district court noted that neither the parties nor the PSI identified which
convictions were used for the ACCA enhancement at sentencing in 2007. It then
determined that Gray’s convictions for resisting arrest with violence and selling
4 cocaine were both ACCA-predicate offenses. Additionally, it determined that the
government did not waive reliance on the mislabeled conviction because the
government did not explicitly disavow reliance on any convictions, there was no
discussion of the ACCA at sentencing, and Gray did not object to the
government’s use of his prior convictions or application of the ACCA. Citing
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the court concluded that
Gray was not entitled to resentencing because he still had three qualifying
convictions for the ACCA enhancement, and nothing indicated that his count four
sentence was based solely on the residual clause. Thus, the court denied his
motion.
Gray appealed, and a member of this Court granted him a certificate of
appealability on the issue of “whether the government waived reliance on Mr.
Gray’s possession with intent to distribute cannabis conviction as an ACCA
predicate.” We stayed Gray’s appeal pending issuance of a decision in Tribue v.
United States, 929 F.3d 1326 (11th Cir. 2019); however, Tribue has since been
decided.
On appeal, Gray argues that the government waived the ability to correct and
rely on one of his prior convictions as an ACCA predicate offense because it was
mislabeled as a non-qualifying offense in his PSI and the government did not
object to and correct the error despite doing so for a different conviction.
5 II. DISCUSSION
When reviewing the district court’s denial of a § 2255 motion, we review
findings of fact for clear error and questions of law de novo. Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2009). Under the prior precedent rule, we
are bound by our prior decisions unless and until the Supreme Court or this Court
sitting en banc overrule them. United States v. Brown, 342 F.3d 1245, 1246 (11th
Cir. 2003). We may affirm for any reason supported by the record, even if not
relied upon by the district court. United States v. Gandy, 710 F.3d 1234, 1238
(11th Cir. 2013).
A federal prisoner may move the sentencing court to vacate his sentence
under 28 U.S.C. § 2255 on the ground that, inter alia, his sentence was imposed in
violation of federal law or the Constitution or exceeds the maximum time allowed
by law. 28 U.S.C. § 2255(a). However, like any other § 2255 movant, a § 2255
claimant relying on Johnson must prove his claim. Beeman, 871 F.3d at 1221-22
(citing “a long line of authority holding that a § 2255 movant ‘bears the burden to
prove the claims in his § 2255 motion’”).
To obtain relief based on Johnson, a post-conviction movant must prove that
his sentence “enhancement was due to use of the residual clause.” Id. at 1222. “In
other words, he must show that the clause actually adversely affected the sentence
he received.” Id. at 1221. A Johnson § 2255 movant must prove two things: (1)
6 that “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,” and (2)
that “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.
The ACCA caps a federal prison sentence for possessing a firearm as a felon
under 18 U.S.C. § 922(g)(1) at 10 years, except when the person being sentenced
has three or more prior convictions for violent felonies or serious drug offenses.
18 U.S.C. § 924(a)(2), (e)(1). The ACCA requires a minimum prison sentence of
15 years for someone who has 3 prior convictions for a “violent felony or a serious
drug offense, or both.” Id. § 924(e)(1). The ACCA defines a “serious drug
offense” as “an offense under State law,” punishable by at least 10 years of
imprisonment, “involving manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.” Id. § 924(e)(2)(A)(ii).
Florida law punishes the sale, manufacture, delivery, or possession with
intent to sell cocaine as a second-degree felony with a sentence up to 15 years of
imprisonment. Fla. Stat. §§ 775.082(3)(d), 893.03(2)(a), 893.13(1)(a)1. It
punishes the sale, manufacture, delivery, or possession with intent to sell cannabis
as a third-degree felony with a sentence up to 5 years of imprisonment. Id. §§
775.082(3)(e), 893.03(1)(c), 893.13(1)(a)2. Thus, a Florida conviction for
7 possession with intent to sell cocaine is a serious drug offense under the ACCA,
while possession with intent to sell cannabis is not. See 18 U.S.C.
§ 924(e)(2)(A)(ii); see also United States v. Smith, 775 F.3d 1262, 1268 (11th Cir.
2014).
In Tribue, we rejected the defendant’s arguments that the government
effectively waived the ability to rely on additional convictions to support his
ACCA enhanced sentence on collateral review when the PSI previously identified
three convictions for the enhancement, one of which no longer qualified. Tribue,
929 F.3d at 1330, 1332. The defendant argued, in part, that the government could
not use a conviction that was mislabeled in the PSI because the district court
adopted the PSI without changing the error. Id. at 1330. We determined that the
defendant had not objected to his ACCA enhancement at sentencing, and that that
reason alone was sufficient to affirm. Id. at 1332.
We further determined that there was no requirement for the government to
“prospectively address whether each and every conviction listed in the criminal
history section of a PSI is an ACCA predicate in order to guard against potential
future changes in the law and avoid later claims that it has waived use of those
convictions as qualifying ACCA predicates.” Id. We concluded that, “where there
is no objection by the defendant to the three convictions identified as ACCA
predicates, the government bears no burden to argue or prove alternative grounds
8 to support the ACCA enhancement” because neither party is expected to have
anticipated Johnson’s invalidation of the residual clause. Id. In doing so, we noted
that the government could show, at the § 2255 hearing, that a third conviction
qualified under the ACCA even though the conviction was mislabeled in the PSI as
a non-qualifying offense. Id. at 1330 & n.5. Because the PSI had the correct case
number for the conviction, the government could correct the mislabeled conviction
and use it to support the ACCA enhancement. Id.
Here, the government did not waive reliance on Gray’s mislabeled
conviction. As noted in Tribue, we can affirm based on his failure to object to
either his ACCA enhancement or the use of any of his convictions at sentencing.
See id. at 1332.
We also note that Gray’s mislabeled conviction was a serious drug offense
under the ACCA and the government did not have to object to it in this case to use
in on collateral review. This is especially true here where the PSI had the correct
case file number, the narrative indicated that cocaine was also found in the vehicle,
and the sentence imposed exceeded the statutory maximum for the charge as
written for cannabis. See id. at 1330 n.5. Although Tribue was decided after the
parties filed their appellate briefs, we may affirm on any ground supported by the
record, and Tribue is binding precedent that we must follow. See Gandy, 710 F.3d
at 1238; Brown, 342 F.3d at 1246.
9 AFFIRMED.