United States District Court, M.D. Alabama, Eastern Division
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 ...