from the United States District Court for the Southern
District of Florida D.C. Docket Nos. 0:06-cr-60304-DMM-1,
MARCUS and DUBINA, Circuit Judges, and GOLDBERG, [*] Judge.
MARCUS, CIRCUIT JUDGE.
district court granted Albert Pickett relief on a 28 U.S.C.
§ 2255 motion to vacate his sentence, ruling that,
following changes in constitutional law regarding the Armed
Career Criminal Act (ACCA), Pickett no longer qualified as an
armed career criminal and was not eligible for an enhanced
sentence. The government appealed but, before any briefing
took place, this Court ruled in Beeman v. United
States, 871 F.3d 1215 (11th Cir. 2017), that § 2255
movants were required to meet a higher burden than the one
the district court had applied. The parties agree that
Beeman applies. We have applied it in this case and
conclude that Pickett has not met the standard it sets.
However, Pickett did not and could not know that he would be
required to meet the heightened Beeman standard on
appeal, and we cannot discern from the historical record and
case law at the time of sentencing what the district court
had in mind when it sentenced him. The district court has
handled the case with great care, and had little reason to
think, in 2007, that distinctions between various clauses in
ACCA would take on such significance in the coming decade. We
therefore vacate and remand this case to the district court,
where Pickett will have the opportunity to make his case for
relief under the new standard.
Pickett pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). Pickett had the requisite predicate offenses to
qualify as an armed career criminal under ACCA. The statute
provides an enhanced sentence for a violation of §
922(g) by a defendant with three or more prior convictions
for a "violent felony" or a "serious drug
offense." Id. § 924(e)(1). Pickett's
enhancement was based on four prior Florida convictions:
strong armed robbery in 1988; battery on a law enforcement
officer in 1991; aggravated battery on a pregnant victim in
1993; and battery on a law enforcement officer and resisting
arrest with violence in 2001.
defines a "violent felony" as "any crime
punishable by a term of imprisonment exceeding one year"
(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) (emphasis added). Subsection
(i) is called the "elements clause." The first part
of subsection (ii) is known as the "enumerated offenses
clause," and the second is the "residual
February 2, 2007, Pickett was sentenced to 180 months'
imprisonment, to be followed by five years of supervised
release. He raised no objections to the Presentence
Investigation Report (PSI), which included the four predicate
offenses in the Guidelines calculation, or to the final
sentence. Nor did Pickett file a direct appeal with this
lodged his first, unsuccessful § 2255 motion in 2010. He
claimed that, under a then-recent Supreme Court decision,
Johnson v. United States (Curtis Johnson),
559 U.S. 133 (2010), he no longer had three qualifying
predicate offenses. Curtis Johnson had held that
simple battery under Florida law was not categorically a
violent felony under ACCA's elements clause because it
could be committed by a mere touching and therefore did not
necessarily have as an element the use of physical force.
Id. at 139-40. Applying the modified categorical
approach, a magistrate judge reasoned that Pickett's
three battery convictions were violent felonies under the
residual clause. The district court adopted this reasoning,
denied the motion on the merits, and also found that it was
residual clause thereafter was held unconstitutional by the
Supreme Court in Johnson v. United States
(Johnson), 135 S.Ct. 2551, 2563 (2015). The Court
concluded that it was impermissibly vague because "the
indeterminacy of the wide-ranging inquiry required by the
residual clause both denie[d] fair notice to defendants and
invite[d] arbitrary enforcement by judges." Id.