United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
Levert (“Levert”), through counsel, the Office of
the Federal Public Defender, has filed with the Clerk of this
Court a motion to vacate, set aside, or otherwise correct his
sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The
United States has opposed the motion, and Levert has filed a
reply in support. For the following reasons, the motion is
due to be denied.
2002, Levert was convicted by a jury of a
felon-in-possession-of-a-firearm count under 18 U.S.C. §
922(g). His Presentence Investigation Report
(“PSR”) indicates that following report of an
assault to police, police apprehended Levert in possession of
a semiautomatic weapon with one live round in the chamber.
was sentenced under the mandatory-minimum provisions of the
Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), which provides enhanced penalties for
defendants previously convicted of three or more
“violent felonies, ” defined as offenses that
either: (1) have 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) (known as
the “elements clause”); (2) constitute
“burglary, arson, or extortion, or involve[ ] the use
of explosives, ” id. § 924(e)(2)(B)(ii)
(known as the “enumerated offenses clause”); or
(3) “otherwise involve[ ] conduct that presents a
serious potential risk of physical injury to another, ”
id. (known as the “residual clause”).
qualified for the ACCA enhancement on the basis of three
California violent felony convictions: two for robbery with
use of a firearm and one for assault with a deadly weapon.
Specifically, according to the PSR, the above three
convictions arose based on the following conduct by Levert.
On September 25, 1980, Levert approached a cashier at
Daisy's restaurant and, producing a sawed-off shotgun,
demanded money; the cashier complied. Less than 15 minutes
later, Levert entered a Baskin Robbins ice cream parlor and,
again producing a sawed-off shotgun from a shopping bag,
demanded money from everyone present. One of the patrons
complied, and Levert's accomplice removed money from the
cash register. Finally, later on the same evening, Levert
robbed Falcone's Pizza. Again, taking a sawed-off shotgun
from a bag, Levert pointed it at Marcelino Aguilar and when
Aguilar started to walk away, Levert shot him in the stomach.
Levert's accomplice then took money from the cash
two robbery convictions, Levert's PSR specified that they
constituted violent felonies under the ACCA because they each
had “as an element the use, attempted use, or
threatened use of physical force against the person of
another, or  otherwise involves conduct that presents a
seriously potential risk of physical injury to
another.” In other words, the PSR referenced both the
“elements clause” and the “residual
clause” of the ACCA for each of these offenses. For the
assault with a deadly weapon conviction, the PSR stated that
this conviction qualified as a violent felony under the
“elements clause” of the ACCA.
the ACCA enhancement, the maximum sentence Levert could have
received was ten years (120 months). See 18 U.S.C.
§ 924(a)(2). However, as an armed career criminal, he
faced a mandatory minimum sentence of 15 years (180 months)
and a maximum sentence of life. 18 U.S.C. § 924(e)(1).
This Court sentenced Levert to 236 months' imprisonment.
The sentencing transcript indicates no discussion concerning
the applicability of the ACCA enhancement.
appealed, and the Eleventh Circuit affirmed his sentence.
United States v. Levert, 87 F. App'x 712 (11th
Cir. 2003). Levert has previously filed a § 2255 motion
that was denied on the merits, but on June 29, 2016, the
Eleventh Circuit authorized Levert to file a
second-or-successive motion under 28 U.S.C. §§
2255(h) and 2244(b)(3)(A) with respect to his claim that his
sentence is invalid under Johnson v. United States,
135 S.Ct. 2551 (2015), and Welch v. United States,
136 S.Ct. 1257 (2016).
Johnson, the Supreme Court held that the residual
clause of the violent felony definition of the ACCA is
unconstitutionally vague and thus imposition of an enhanced
sentence under that provision violates the Fifth
Amendment's guarantee of due process. 135 S.Ct. at 2557.
The Supreme Court made clear that its ruling on the residual
clause did not call into question the validity of the
elements clause or the enumerated crimes clause of the
ACCA's definition of a violent felony. Id. at
2563. Subsequently in Welch, 136 S.Ct. at 1264-65,
the Supreme Court held that Johnson applies
retroactively to cases on collateral review.
argument that he is entitled to be resentenced without the
ACCA enhancement is twofold: first, after Johnson,
his California convictions for robbery no longer qualify as
violent felonies under the residual clause of the ACCA, and
second, without the residual clause, the classification of
those two convictions under the remaining ACCA definitions of
violent felony is also incorrect because in 2015, the Ninth
Circuit held that California Penal Code § 211 does not
satisfy the elements clause of the ACCA because the statute
can be violated with the use of accidental force, United
States v. Dixon, 805 F.3d 1193 (9th Cir. 2015).
Court first notes that the Eleventh Circuit's grant of
permission to file this § 2255 motion is a
“threshold determination” that “does not
conclusively resolve” the question whether Levert has
actually satisfied the requirements of § 2255(h). In
re Moore, 830 F.3d 1268, 1270-71 (11th Cir. 2016).
Rather, this Court “must determine for itself whether
[the § 2244(b)(2)] requirements are met. Jordan v.
Sec'y, Dep't of Corrs., 485 F.3d 1351, 1357
(11th Cir. 2007); see also In re Moss, 703 F.3d
1301, 1303 (11th Cir. 2013) (reiterating that the court of
appeals' threshold conclusion in granting a successive
application that a prima facie showing has been made is
necessarily a “limited determination, ” as the
district court then must also decide “fresh” the
issue of whether § 2255(h)'s criteria are met, and, if
so, proceed to considering the merits of the § 2255
it is clear that this Court must first decide whether Levert
has met the requirements for filing a second or successive
petition under 28 U.S.C. §§ 2255(h) and 2244(b)(2),
giving no deference to the Eleventh Circuit's initial
prima facie decision, and only if the Court finds that he
has, the Court may then proceed to consider the merits of
Levert's motion. See Faust v. United States, 572
F. App'x 941, 943 (11th Cir. 2014) (unpublished)
(“Only if the district court . . . concludes that the
movant ‘has established the statutory requirements for
filing a second or successive motion' should it