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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-15560 Non-Argument Calendar ________________________
D.C. Docket Nos. 3:16-cv-00224-MCR-EMT, 3:13-cr-00093-MCR-EMT-1
PRESTON LEE JOHNSON, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(May 30, 2018)
Before WILSON, JORDAN and HULL, Circuit Judges.
PER CURIAM:
Preston Johnson, Jr., a federal prisoner, appeals the district court’s denial
and dismissal of his pro se 28 U.S.C. § 2255 motion to vacate his 200-month Case: 16-15560 Date Filed: 05/30/2018 Page: 2 of 17
sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
After plain error review, we affirm the district court’s denial of Johnson’s § 2255
motion.
I. BACKGROUND FACTS
A. Conviction and Sentencing
In June 2014, a jury convicted Johnson of one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).
Johnson’s presentence investigation report (“PSI”) stated that because
Johnson had at least three prior convictions for violent felonies or serious drug
offenses, he qualified as an armed career criminal. The PSI identified these six
Florida convictions: (1) resisting arrest with violence and battery on a law
enforcement officer in 1988 (“resisting arrest with violence”); (2) burglary,
trespass, and battery in 1989; (3) burglary of a dwelling in 1989; (4) possession
and sale of cocaine in 1990; (5) battery on a law enforcement officer in 1995
(“1995 BOLEO”); and (6) battery in 1999. Johnson did not file written objections
to the PSI. As a result of his armed career criminal designation under the ACCA,
Johnson’s offense level was increased from 16 to 33, and he was subject to a
statutory mandatory minimum of fifteen years (or 180 months) in prison.
At his September 2014 sentencing, Johnson, through counsel, stated that he
had no factual or legal objections to the PSI and affirmatively acknowledged that
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he had three prior convictions that qualified him for the ACCA enhancement. The
sentencing court agreed with defense counsel that Johnson had three qualifying
prior convictions, but concluded that Johnson’s 1999 battery conviction did not
qualify and that the PSI would be corrected to omit that conviction. Otherwise, the
sentencing court found that the PSI was accurate as modified in open court. The
PSI, the parties, and the sentencing court did not reference, much less discuss,
under which ACCA clause any of his five remaining prior convictions qualified.
The sentencing court calculated an advisory guidelines range of 188 to 235
months’ imprisonment. Based on the seriousness of Johnson’s criminal history,
some of which was not accounted for in the guidelines calculations, the sentencing
court denied Johnson’s request for a downward variance to the mandatory-
minimum 180-month sentence and instead imposed a 200-month sentence.
B. Direct Appeal
On direct appeal, Johnson raised various trial issues, but did not challenge
his ACCA-enhanced sentence at all. This Court affirmed in an opinion dated June
24, 2015. See United States v. Johnson, 615 F. App’x 582, 583 (11th Cir. 2015).
The following day, 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).
C. Section 2255 Proceedings as to Burglary Convictions
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In May 2016, Johnson pro se filed the present § 2255 motion, arguing that
he no longer had three qualifying ACCA predicate convictions in light of Johnson.
Johnson contended that the sentencing court relied on the ACCA’s now-void
residual clause to find that his Florida burglary convictions qualified as violent
felonies.
A magistrate judge sua sponte reviewed Johnson’s motion and issued a
report recommending that Johnson’s motion be summarily dismissed. The report
noted that the PSI listed six prior convictions that qualified Johnson for the ACCA
enhancement, but that Johnson challenged only the use of his two burglary
convictions.
The report found that Johnson’s convictions for sale of cocaine and resisting
arrest with violence were unaffected by Johnson’s invalidation of the ACCA’s
residual clause. Thus, only one more qualifying conviction was needed to sustain
the ACCA enhancement. The report found that Johnson’s 1995 BOLEO
conviction qualified as a violent felony “under the elements clause,” citing to
Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1339-40 (11th Cir.
2013), abrogated on other grounds by Johnson, 135 S. Ct. at 2557-58, 2563. In so
doing, the report pointed to undisputed facts in the PSI indicating that Johnson had
actually and intentionally touched or struck a corrections officer “causing bodily
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harm to her,” which qualified as the third predicate offense.1 Thus, the report
concluded, even if Johnson’s burglary convictions no longer qualified after
Johnson, he still had three other convictions that supported the ACCA
enhancement.
On June 6, 2016, the magistrate judge issued her report and notified Johnson
that he had 14 days to file objections and that a failure to do so would waive his
right to challenge on appeal any unobjected-to factual and legal conclusions, citing
Eleventh Circuit Rule 3-1. Thereafter, the district court granted Johnson an
additional thirty days, or through and including July 29, 2016, to file his objections
to the report. Johnson, however, did not file any objections. On August 2, 2016,
the district court adopted the report and summarily denied and dismissed Johnson’s
§ 2255 motion.
On January 31, 2017, this Court granted Johnson a certificate of
appealability (“COA”) as to “whether the district court erred in denying Johnson’s
28 U.S.C. § 2255 motion on the basis that Johnson had three qualifying
convictions under the ACCA following Johnson.”2
1 The report noted that Johnson’s 1999 battery conviction also qualified under the ACCA’s elements clause using the modified categorical approach because the undisputed PSI facts stated that Johnson had hit his victim. The sentencing court, however, explicitly found that this 1999 battery conviction did not qualify as an ACCA predicate and did not use it to support the ACCA enhancement. Thus, we do not consider this 1999 battery conviction in this appeal. 2 We deny Johnson’s motion to strike the government’s response brief for briefing issues outside the scope of the COA. The COA encompasses the underlying threshold issues raised in 5 Case: 16-15560 Date Filed: 05/30/2018 Page: 6 of 17
II. STANDARD OF REVIEW
In reviewing a district court’s denial of a § 2255 motion, this Court
ordinarily 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). It is a question of law whether a prior conviction is a violent felony under
the ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016).
In Johnson’s case, however, there are two independent reasons this Court
could conclude Johnson’s claim is not preserved for appellate review at all. First,
in the district court, Johnson’s § 2255 motion challenged only the sentencing
court’s reliance on his prior burglary convictions to support the ACCA
enhancement and did not raise any issue as to the sentencing court’s reliance on his
1995 BOLEO conviction. Thus, we could conclude that Johnson has waived his
Johnson challenge to his 1995 BOLEO conviction. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks omitted).
Second, Johnson failed to object to the magistrate judge’s report and
recommendation focusing on his BOLEO conviction, despite being warned of the
consequences and being given an extra thirty days to file objections. Generally,
the government’s brief—the effect of Johnson’s failure to object to the magistrate judge’s report, and what burden of proof Johnson must satisfy to prevail on his Johnson claim—all of which are threshold procedural matters that 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). In any event, given the parties have briefed these issues, and to the extent necessary, we alternatively sua sponte expand the COA accordlingly. 6 Case: 16-15560 Date Filed: 05/30/2018 Page: 7 of 17
under such circumstances, a party “waives the right to challenge on appeal the
district court’s order based upon unobjected-to factual and legal conclusions.” See
11th Cir. R. 3-1 (providing that “the court may review on appeal for plain error if
necessary in the interests of justice”).3 Because we conclude in this case that the
interests of justice are served by allowing Johnson’s appeal to proceed, we exercise
our discretion to review his claims for plain error.
To establish plain error, an appellant must show that there was (1) error,
(2) that was “plain—that is to say, clear or obvious,” and (3) that affected the
appellant’s substantial rights. Molina-Martinez v. United States, 578 U.S. ___, 136
S. Ct. 1338, 1342-43 (2016). If these three prongs are met, this Court has the
discretion to remedy the error if it seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Id. Because the error must be obvious
and clear under current law, “there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). In addition, we can
affirm on any ground supported by the record. Castillo v. United States, 816 F.3d
1300, 1303 (11th Cir. 2016).
III. DISCUSSION
3 The government contends Johnson procedurally defaulted on his Johnson claim because he failed to raise it in his direct appeal. We decline to address the procedural default issue because his Johnson claim loses on the merits in any case. 7 Case: 16-15560 Date Filed: 05/30/2018 Page: 8 of 17
A. General Principles
The ACCA provides that a person convicted under 18 U.S.C. § 922(g) 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).
In Johnson, the Supreme Court held that the ACCA’s residual clause was
unconstitutionally vague. 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 2563. Subsequently, the
Supreme Court held that Johnson announced a new substantive rule that applied
retroactively to cases on collateral review. Welch v. United States, 578 U.S. ___,
___, 136 S. Ct. 1257, 1268 (2016).
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To assert a claim based on Johnson, the movant must contend that he was
sentenced under the ACCA’s now-void residual clause. Beeman v. United States,
871 F.3d 1215, 1220 (11th Cir. 2017). 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. 4 Id. at 1220.
B. Beeman
Under our Court’s binding precedent, 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.” Id. 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. This inquiry is a question of “historical fact” and 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. at 1224 n.5.
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
4 Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276 (2013). 9 Case: 16-15560 Date Filed: 05/30/2018 Page: 10 of 17
either the enumerated offenses clause or the 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 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, Johnson does not dispute that at the time of his sentencing he had two
qualifying prior felony convictions: (1) a 1988 Florida conviction for resisting
arrest with violence, which qualified as a violent felony under the ACCA’s
elements clause; and (2) a 1990 Florida conviction for possession and sale of
cocaine, which qualified under the ACCA’s definition of a serious drug offense.
Thus, Johnson’s Johnson claim is based solely on the third qualifying predicate
conviction.
Johnson points to his 1995 felony BOLEO conviction under Florida Statutes
§§ 783.07(2)(b) and 784.03(1)(a). Under Florida law, a misdemeanor battery
occurs when a person either:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.
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Fla. Stat. § 784.03(1)(a)(1)-(2) (emphasis added). The offense becomes a felony
when the person knowingly commits the battery on a law enforcement officer. Fla.
Stat. § 784.07(2)(b).
After Curtis Johnson, a battery under § 784.03(1)(a)(1), which includes mere
touching of the victim, does not categorically qualify as a violent felony under the
ACCA’s elements clause because unwanted touching does not constitute the “use
of physical force.” See Curtis Johnson v. United States, 559 U.S. 133, 135-40, 130
S. Ct. 1265, 1268-71 (2010). In Curtis Johnson, the Supreme Court explained that
the term “physical force” in the ACCA’s elements clause means “violent force—
that is, force capable of causing physical pain or injury to another person.” Id. at
140, 130 S. Ct. at 1271. The Supreme Court did not, however, address a bodily
harm battery under § 784.03(1)(a)(2). Id. at 136-37, 130 S. Ct. at 1269. Instead,
citing Shepard, the Supreme Court explained that “[s]ince nothing in the record of
Johnson’s 2003 battery conviction permitted the District Court to conclude that it
rested upon anything more than the least of these acts [of touching, striking, or
causing bodily harm],” the only question was whether actually and intentionally
touching the victim constituted the use of physical force within the meaning of the
ACCA’s elements clause. Id. at 137, 130 S. Ct. at 1269.
In this case, the problem for Johnson is the PSI’s undisputed description of
Johnson’s BOLEO conviction. Specifically, the description in the PSI stated that,
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“[a]ccording to Court records,” Johnson “actually and intentionally touched or
struck” the officer, “causing bodily harm to her,” language that tracks both
subsections of the battery statute.
Furthermore, at the time of Johnson’s 2014 sentencing, this Court had
concluded, using the modified categorical approach, that a BOLEO conviction
under Florida Statutes § 784.03(1)(a) in which the undisputed PSI facts indicated
the defendant had struck the victim with sufficient force to injure her wrist
qualified as a violent felony under the ACCA’s elements clause. See Turner, 709
F.3d at 1339-40. 5
Moreover, Johnson has not presented any indication, much less evidence,
that the sentencing court actually relied on the ACCA’s residual clause to find that
his Florida BOLEO conviction was a qualifying predicate.
In other words, it is at least as likely, if not more so, that the sentencing
court, in light of the Supreme Court’s Curtis Johnson and this Court’s Turner,
relied on the PSI’s undisputed description of Johnson’s BOLEO conviction and
found, using the modified categorical approach, that the BOLEO conviction
5 In August 2015, after Johnson was decided, this Court noted that Turner’s holding that a Florida BOLEO conviction qualified as a violent felony under the now-void residual clause was abrogated by Johnson. United States v. Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). Johnson, however, did not address the ACCA’s elements clause. Furthermore, the Hill Court noted that a Florida battery could be committed by touching the victim, striking the victim, or causing the victim bodily harm and that the Supreme Court in Curtis Johnson had not addressed the modified categorical approach. Id. at 1323 n.2. Thus, neither Curtis Johnson nor Johnson abrogated Turner’s use of the modified categorical approach to determine whether Turner’s Florida BOLEO conviction qualified under the elements clause. 12 Case: 16-15560 Date Filed: 05/30/2018 Page: 13 of 17
qualified under the ACCA’s elements clause. Under these circumstances, Johnson
has “failed to prove—that it [is] more likely than not—he in fact was sentenced as
an armed career criminal under the residual clause.” See Beeman, 871 F.3d at
1225. Because under our Beeman precedent Johnson failed to carry his burden of
proof, the district court did not commit reversible error in denying and dismissing
his § 2255 motion.
Alternatively, even without Beeman and even if we examined Johnson’s
1995 Florida BOLEO conviction under current law (rather than as a historical
fact), Johnson has not shown that his BOLEO conviction plainly does not qualify
under the ACCA’s elements clause or that the district court plainly erred in
counting that offense. We explain why.
C. Bodily Harm Battery under Florida Statutes § 784.03(1)(a)(2)
To qualify under the ACCA’s elements clause, a felony crime must “ha[ve]
as an element the use, attempted use, or threatened use of physical force against the
person of another.” 18 U.S.C. § 924(c)(2)(B)(1). As the Supreme Court held in
Curtis Johnson, the phrase “physical force” in the elements clause means violent
force, which is “force capable of causing physical pain or injury to another
person.” 559 U.S. at 140, 130 S. Ct. at 1265. We also know from Curtis Johnson
that a battery under Florida Statutes § 784.03(1) does not categorically qualify
under the ACCA’s elements clause because a person may be convicted of battery
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under § 784.03(1)(a)(1) for a mere unwanted touch. 559 U.S. at 137-41, 130 S. Ct.
at 1269-71; see also United States v. Vail-Bailon, 868 F.3d 1293, 1298 (11th Cir.
2017) (en banc).
Here, however, the parties do not dispute that § 784.03 is a divisible statute.
Based on the statute’s structure, we agree. See United States v. Davis, 875 F.3d
592, 598 (11th Cir. 2017) (stating that the statute on its face may resolve whether
the statute is divisible); see also Descamps v. United States, 570 U.S. 254, 260,
263, 133 S. Ct. 2276, 2283 (2013) (stating a statute is divisible when it “list[s]
potential offense elements in the alternative,” thereby creating multiple crimes);
Mathis v. United States, 579 U.S. ___, ___, 136 S. Ct. 2243, 2249 (2016).
Subsections (1) and (2) of § 784.03(1)(a) list two distinct battery crimes—
(1) battery by touching or striking and (2) battery by causing bodily harm. 6
We note also that Florida courts interpreting § 784.03(1)(a) have treated the
statute’s subsections as alternative elements of the crime of battery. See, e.g.,
Jaimes v. State, 51 So.3d 445, 449-51 (Fla. 2010); State v. Weaver, 957 So.2d 586,
587-89 (Fla. 2007). In addition, Florida’s standard jury instruction for battery
shows that the jury is specifically instructed to find as an element either that the
defendant intentionally touched or struck the victim against his or her will or that
the defendant intentionally caused bodily harm to the victim, indicating that these
6 We need not, and therefore do not, address whether battery by “touching or striking” under § 784.03(1)(a)(1) is further divisible. 14 Case: 16-15560 Date Filed: 05/30/2018 Page: 15 of 17
are separate elements, rather than two means of committing the same element. See
Fla. Std. Jury Instr. (Crim.) 8.3. And, because the statute of conviction is divisible,
the district court could use the modified categorical approach to determine whether
Johnson’s BOLEO conviction qualified under the elements clause. See Descamps,
570 U.S. at 260-61, 263, 133 S. Ct. at 2283, 2285.
Further, Johnson does not argue that bodily harm battery under
§ 784.03(1)(a)(2) fails to satisfy the ACCA’s elements clause—that is, whether the
element of “[i]ntentionally caus[ing] bodily harm” necessarily include the use,
attempted use, or threatened use of physical force. As already noted, this Court in
Turner concluded that a § 784.03(1)(a)(2) offense has as an element the use of
“physical force.” Thus, at a minimum, Johnson has not shown plain error on this
point.
D. District Court’s Use of PSI Facts
Johnson’s sole argument on appeal is that the district court, in using the
modified categorical approach, was limited to Shepard documents to determine the
statutory basis for his BOLEO conviction—whether he was convicted of touching
or striking the officer under § 784.03(1)(a)(1) or of intentionally causing bodily
harm to the officer under § 784.03(1)(a)(2)—and plainly erred by consulting
undisputed facts in his PSI to make that determination. We disagree.
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This Court has repeatedly held that, in addition to Shepard documents, a
court may consider the PSI’s undisputed facts in determining whether a prior
conviction qualifies as an ACCA predicate offense, including which element of a
divisible statute formed the basis for the prior conviction under the modified
categorical approach. See, e.g., In re Welch, 884 F.3d 1319, 1325 (11th Cir.
2018); In re Hires, 825 F.3d 1297, 1302 (11th Cir. 2016); United States v.
Ramirez-Flores, 743 F.3d 816, 820-21 (11th Cir. 2014); Rozier v. United States,
701 F.3d 681, 686 (11th Cir. 2012); United States v. Beckles, 565 F.3d 832, 843-
44 (11th Cir. 2009); United States v. Bennett, 472 F.3d 825, 832-34 (11th Cir.
2006); United States v. Wade, 458 F.3d 1273, 1277-78 (11th Cir. 2006).
Indeed, in Turner, this Court, applying the modified categorical approach,
relied on undisputed PSI facts to conclude that the defendant’s BOLEO conviction
in that case qualified under the ACCA’s elements clause. See Turner, 709 F.3d at
1336, 1339-40. In light of Turner and our other binding precedent, we cannot say
the district court in this case plainly erred by looking to the PSI’s undisputed
description of Johnson’s BOLEO conviction.
Here, the PSI’s description indicates that Johnson not only touched or struck
an officer, but also caused bodily harm to an officer. Specifically, according to the
undisputed facts in the PSI, state court records showed that Johnson “actually and
intentionally touched or struck” the officer, “causing bodily harm to her . . . .”
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Thus, the PSI demonstrates that regardless of whether Johnson was convicted of
touching the officer or striking the officer, he was also convicted under
§ 784.03(1)(a)(2) of causing the officer bodily harm.
III. CONCLUSION
For these reasons, Johnson has not shown that he is entitled to relief under
Johnson. Accordingly, we affirm the district court’s denial and dismissal of
Johnson’s § 2255 motion challenging his ACCA sentence based on Johnson.
AFFIRMED.