McKenzie v. United States

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Before the court is Petitioner Lewis McKenzie's 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence imposed in 2003 under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Doc. # 1.^[1] See United States v. McKenzie, No. 3:02-CR-151-WHA (M.D. Ala. 2003) (criminal judgment). Through counsel, McKenzie filed this § 2255 motion challenging his designation as an armed career criminal under the ACCA based upon the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). McKenzie argues that, under Johnson, in which the Supreme Court held that the residual clause of the “violent felony” definition in the ACCA is unconstitutional, he no longer has three prior convictions that qualify as ACCA predicates. He seeks resentencing without application of the ACCA. The government contends that, notwithstanding the Johnson decision and in light of the Eleventh Circuit's decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), McKenzie cannot show that his ACCA-enhanced sentence turned on the validity of the residual clause. Based upon careful consideration of the briefing and the governing law, the undersigned finds that McKenzie's § 2255 motion is due to be denied.

         II. BACKGROUND AND PROCEDURAL HISTORY

         In March 2003, a jury found McKenzie guilty of the four counts in an indictment, including one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 1).^[2] A conviction under § 922(g)(1) normally carries a sentence of not more than ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, under the ACCA, an individual who violates § 922(g) and has three prior convictions for a violent felony, a serious drug offense, or both, is subject to an enhanced sentence of not less than fifteen years. 28 U.S.C. § 924(e)(1); see also Descamps v. United States, 570 U.S. 254, 258 (2013) (noting the typical statutory maximum sentence and the ACCA's heightened mandatory minimum for § 922(g) convictions).

         In 2003, when McKenzie was sentenced, the ACCA defined a “violent felony” as any crime punishable by imprisonment for a term exceeding one year that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion, involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 28 U.S.C. § 924(e)(2)(B). These definitions of “violent felony” fall into three respective categories: (1) the elements clause; (2) the enumerated-offenses clause; and (3) and the now-void residual clause. See In re Sams, 830 F.3d 1234, 1236-37 (11th Cir. 2016).

         The sentencing record does not reveal which ACCA definition of “violent felony” undergirds McKenzie's enhanced sentence. The presentence investigation report (“PSI”) stated that McKenzie had the requisite number of predicate convictions to subject him to an ACCA-enhanced sentence. Doc. # 3-3 at 8, ¶ 26. However, the PSI did not specify which of McKenzie's prior convictions were the qualifying predicate convictions; nor did it specify which clause of the ACCA definition of “violent felony” a particular prior conviction fell under. Id. The criminal history section of the PSI contained more than three prior felony convictions. A fair reading of the record reflects-and the parties agree-that the district court sentenced McKenzie under the ACCA based on (1) a 1986 Alabama conviction for distribution of marijuana; (2) a 1986 Alabama conviction for burglary in the third degree; and (3) a 1991 Alabama conviction for arson in the second degree. See id. at 9-11, ¶¶ 32, 33 & 37.

         McKenzie's sentencing hearing was held on July 15, 2003. After the district court noted there were no objections to the PSI, McKenzie's counsel indicated he had no objections to the facts stated in the PSI and no objections to the guideline calculations in the PSI, because they were “based on the law . . . as it exists at this time.” Doc. # 3-4 at 4. However, McKenzie's counsel noted that he objected to the decision in United States v. Taylor, 495 U.S. 575, 598 (1990), in which the Supreme Court found burglary was a violent felony for purposes of the ACCA, because counsel believed Taylor was wrongly decided. Id. at 4-5. Accordingly, counsel argued that McKenzie's prior burglary conviction should not count as qualifying predicate conviction for purposes of the ACCA. Id. at 5. The district court overruled this objection. Id.

         The district court then adopted the findings in the PSI, specifically adopting the findings that McKenzie's offense level was 34 and his criminal history category was VI, resulting in a sentencing guidelines range of from 262 to 327 months, with a 60-month consecutive sentence required on Count 4 (the § 924(c) count). See Doc. # 3-4 at 5; Doc. # 3-3 at 7-8. After hearing from the parties on the appropriate sentence, the district court sentenced McKenzie to 337 months in prison, consisting of 277 months on Count 1 (the § 922(g)(1) count); 240 months on Counts 2 and 3, concurrent to Count 1; and 60 months on Count 4, consecutive to all other counts. McKenzie appealed; the Eleventh Circuit affirmed his convictions and sentence. United States v. McKenzie, 91 Fed.Appx. 656 (11th Cir. 2004).

         In April 2005, McKenzie filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See McKenzie v. United States, Civil Action No. 2:05cv332-WHA. In July 2007, this court denied McKenzie relief on the claims in his § 2255 motion. The Eleventh Circuit denied McKenzie's application for a certificate of appealability in October 2007 and denied his request for reconsideration of that denial in December 2007.

         In June 2015, over eleven years after the imposition of McKenzie's sentence, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Court reasoned: “[T]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Id. at 2557. However, the Court “d[id] not call into question application of the [ACCA] to . . . the remainder of the Act's definition of a violent felony.” Id. at 2563 (alterations added). Subsequently, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Johnson decision announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review.

         On May 16, 2016, McKenzie filed an application with the Eleventh Circuit seeking leave to file a second or successive § 2255 motion based on the Supreme Court's decisions in Johnson and Welch. In that application, McKenzie argued that he was sentenced under the ACCA based on prior convictions that qualified as violent felonies under the ACCA's now-void residual clause and thus his ACCA-enhanced sentence is invalid. On May 24, 2016, the Eleventh Circuit authorized McKenzie to file a second-or-successive § 2255 motion under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A) regarding his claim that his ACCA-enhanced sentence is invalid under Johnson.

         On June 21, 2016, McKenzie filed this § 2255 motion arguing he is entitled to be resentenced on Count 1 without the ACCA-enhancement because, after Johnson, his Alabama conviction for burglary in the third degree no longer qualifies as a violent felony under the residual clause of the ACCA, and without the residual clause, the classification of that burglary conviction under the remaining ACCA definitions of violent felony is also incorrect because subsequent Eleventh Circuit decisions have held that burglary in the third degree under the Alabama statute is not a generic burglary for purposes of the ACCA's enumerated-offenses clause. Doc. # 1. Almost one year after filing his § 2255 motion, McKenzie filed a Motion for Ruling and Grant of Resentencing, in which he argued that his Alabama conviction for arson in the second degree, like his burglary conviction, was also improperly used to enhance his sentence under the ACCA because Alabama second-degree arson is not generic arson for purposes of the ACCA's enumerated-offenses clause, meaning the sentencing court relied solely on the now-void residual clause to qualify his arson conviction as a violent felony for purposes of the ACCA. Doc. # 10.

         Subsequently, the government was ordered to respond to McKenzie's claim that his Alabama second-degree arson conviction (like his prior burglary conviction) provides a basis for relief under Johnson. Doc. # 17. The government filed a response arguing that in light of the Eleventh Circuit's intervening decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), McKenzie is entitled to no relief under Johnson because he fails to prove that his ACCA-enhanced sentence turned on the validity of the residual clause. Doc. # 22. McKenzie then filed a reply to the government's response. Doc. # 25.

         There is no disagreement between the parties that McKenzie's prior Alabama conviction for distribution of marijuana constitutes a serious drug offense that qualifies as an ACCA predicate conviction. The parties agree that the question for this court is whether, under Johnson, McKenzie's ACCA-enhanced sentence should be set aside based on the district court's counting of McKenzie's Alabama convictions for third-degree burglary and second-degree arson as predicate violent felonies for purposes of the ACCA.

         III. DISCUSSION

         The Eleventh Circuit's grant of certification to file this § 2255 motion is only a “threshold determination” that “does not conclusively resolve” the question whether McKenzie has actually satisfied the requirements of § 2255(h). In re Moore, 830 F.3d 1268, 1270-71 (11th Cir. 2016). Rather, this court must make an independent determination of whether McKenzie meets § 2255(h)'s requirements and “‘decide every aspect of the case fresh, or in the legal vernacular, de novo.'” In re Chance, 831 F.3d 1335, 1338 (11th Cir. 2016) (quoting Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1358 (11th Cir. 2007)). This gatekeeping role recognizes that this court is in the best position to make the § 2255(h) assessment. Jordan, 485 F.3d at 1358; 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).

         Recent binding Eleventh Circuit precedent forecloses the possibility that McKenzie has met the 2255(h) requirements for filling a second or successive petition based on Johnson. In Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), the Eleventh Circuit held that a § 2255 movant bears the burden of proving a Johnson claim, stating:

To prove a Johnson claim, a movant must establish that his sentence enhancement “turn[ed] on the validity of the residual clause.” In other words, he must show that the clause actually adversely affected the sentence he received. Only if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause is there a Johnson violation. That will be the case only (1) if 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 (neither of which were called into question by Johnson) to qualify a prior conviction as a violent felony, and ...