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United States v. Pickett

United States Court of Appeals, Eleventh Circuit

February 20, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellant,
ALBERT PICKETT, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 0:06-cr-60304-DMM-1, 0:16-cv-61298-DMM

          Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, [*] Judge.


         The 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.



         In 2006 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.

         ACCA defines a "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) (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 clause."

         On 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 Court.

         Pickett 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 procedurally barred.

         The 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. at ...

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