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McKenzie v. United States

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

May 8, 2019

LEWIS McKENZIE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In 2003, McKenzie was sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his conviction for possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g)(1), and his three qualifying prior convictions. See § 924(e) (imposing a fifteen-year mandatory minimum sentence on any defendant “who violates section 922(g) . . . and has three previous convictions . . . for a violent felony or a serious drug offense, or both”). In 2015, the Supreme Court held that the definition of “violent felony” in the ACCA's residual clause, see § 924(e)(2)(B), is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). In 2016, the Supreme Court held that Johnson is retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). After Welch, McKenzie filed this timely § 2255 motion seeking relief under Johnson on grounds that he no longer has three prior qualifying convictions under the ACCA and, thus, is not eligible for an enhanced sentence. He moves the court to grant his § 2255 motion, vacate his current sentence, and resentence him without consideration of the ACCA.

         Before the court is the Recommendation of the Magistrate Judge (Doc. # 26) that this court deny McKenzie's motion because he cannot show, as he must under Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), that it is more likely than not that his sentence on his § 922(g)(1) conviction was enhanced under the ACCA's residual clause in violation of Johnson. McKenzie objects. Based upon a de novo review of those portions of the Recommendation to which McKenzie objects, see 28 U.S.C. § 636(b)(1), the court overrules McKenzie's objections, adopts the Recommendation, and denies McKenzie's § 2255 motion.

         II. DISCUSSION

         In Beeman, the Eleventh Circuit held that, “[t]o prove a Johnson claim, the movant must show that - more likely than not - it was use of the residual clause that led to the sentencing court's enhancement of his sentence.” 871 F.3d at 1221- 22. “[I]f it is just as likely that the sentencing court relied on the elements or enumerated offenses clause, solely or as an alternative basis for the enhancement, then the movant has failed to show that his enhancement was due to use of the residual clause.” Id. at 1222; see also generally United States v. Pickett, 916 F.3d 960, 963 (11th Cir. 2019) (explaining that Beeman “provided a precedential answer to what a [Johnson] movant needed to show to succeed on a § 2255 motion”). The Johnson movant's burden is tied to “historical fact” - whether at the time of sentencing the defendant was “sentenced solely per the residual clause.” Beeman, 871 F.3d at 1224 n.5. Hence, a decision rendered after sentencing “casts very little light, if any, on the key question of historical fact.”[1] Id. The Eleventh Circuit has explained that, under Beeman, “[t]o determine this ‘historical fact, '” the § 2255 court “look[s] first to the record” and, if the record is not determinative, “to the case law at the time of sentencing.” Pickett, 916 F.3d at 963. “Sometimes the answer will be clear - ‘[s]ome sentencing records may contain direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential.'” Id. (quoting Beeman, 871 F.3d at 1224 n.4). The court “might also look elsewhere in the record, to a PSI, for example, to find ‘circumstantial evidence.'” Id. at 963-64 (quoting Beeman, 871 F.3d at 1224 n.4).

         The sentencing court found that McKenzie had three qualifying prior convictions under the ACCA. Although the record is silent as to which of McKenzie's prior convictions qualified, in this § 2255 proceeding, the parties agree that those convictions were: (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. McKenzie argues that he has made the required showing under Beeman because, at the time of his sentencing hearing, his prior Alabama convictions for second-degree arson and third-degree burglary only qualified as “violent felonies” under the now-void residual clause in § 924(e)(2)(B)(ii). The Magistrate Judge disagrees. The Magistrate Judge concludes that “[t]he record and the relevant law when McKenzie was sentenced do not suggest that the district court relied solely on the residual clause to find that McKenzie's Alabama second-degree arson conviction was a violent felony for purposes of the ACCA.” (Doc. # 26, at 19-20.) He opines further that, notwithstanding precedent today that Alabama third-degree burglary is not a violent felony under the enumerated-offenses clause because it is not generic burglary, “the case law was not clear at the time of [McKenzie's] sentencing that only the residual clause, and not also the enumerated-offenses clause, would authorize a finding that an Alabama third-degree burglary conviction was a violent felony.” (Doc. # 26, at 12.) Accordingly, the Magistrate Judge recommends that this court find that McKenzie cannot prevail on his Johnson claim.

         McKenzie's objections are twofold. First, McKenzie challenges the Recommendation's findings addressing his Alabama conviction for second-degree arson under Alabama Code § 13A-7-42. (See Doc. # 26, at 15-20.) Second, focusing on the Magistrate Judge's findings regarding his Alabama conviction for third-degree burglary, McKenzie contends that the Magistrate Judge erred in failing to hold an evidentiary hearing. McKenzie's objections will be overruled. The Eleventh Circuit's decision in Beeman compels the denial of McKenzie's motion, and McKenzie has not shown that he is entitled to an evidentiary hearing.

         A. McKenzie has not shown that it is more likely than not that the district court relied only on the residual clause to find that his Alabama second-degree arson conviction qualified as a violent felony under the ACCA.

         One takeaway from Beeman is this: It is difficult for a Johnson movant to satisfy his burden when the sentencing record is silent as to whether the district court relied upon the residual clause to find that the conviction qualified as an ACCA predicate. Denying relief in Beeman, the Eleventh Circuit explained why its Johnson movant had not carried his burden on the silent sentencing record:

Beeman concedes that there is nothing in the record suggesting that the district court relied on only the residual clause in sentencing him. In his § 2255 motion, he stated in conclusory terms that the district court must have relied on the residual clause, but nothing in the record supports this argument; and Beeman has pointed to no precedent in 2009 holding, or otherwise making obvious, that a violation of Georgia's aggravated assault statute qualified as a violent felony only under the residual clause. Instead, citing to no authority, his motion merely asserts in general terms that “a Georgia conviction for aggravated assault . . . [has] historically qualified as an ACCA predicate under [the ACCA]'s residual clause.” Beeman - relying only on cases involving Florida burglary convictions - also contends that this Court has “been using the residual clause as a default home for many state statutes that might otherwise have been counted under the elements or enumerated crimes clauses.” These general observations, however, are not enough to carry his burden of establishing that he, in fact, was sentenced as an armed career criminal here solely because of the residual clause.

Beeman, 871 F.3d at 1224; see also Ubele v. United States, 742 Fed.Appx. 417');">742 Fed.Appx. 417, 420 (11th Cir. 2018) (“[T]he silence of record leaves no basis to conclude that the residual clause alone was used to qualify his 1998 Georgia arson conviction as a violent felony.”).

         This case, like Beeman, presents a silent sentencing record as to whether the residual clause played any part in McKenzie's ACCA-enhanced sentence. First, there is nothing explicit in the sentencing record revealing even whether McKenzie's enhanced sentence encompassed his 1991 Alabama arson conviction. The presentence report (“PSI”) provides only that McKenzie “is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)” (Doc. # 3-3, at 8), without specifying which of McKenzie's prior convictions qualified as ACCA predicate offenses. Second, assuming as the parties do that the arson conviction was one of the three convictions that counted, the PSI does not indicate which clause of the ACCA's definition of “violent felony” applied. Third, there are no statements at the sentencing hearing - by either the district court or the parties - that suggest that the district court relied only on the residual clause in finding that McKenzie had three qualifying prior convictions under the ACCA. In fact, there is no mention during the sentencing hearing of McKenzie's Alabama arson conviction. Given that there were no factual objections to the ACCA's application, the silence is unsurprising.[2] But that silence leaves McKenzie in the same position as the movant in Beeman - with “nothing in the record suggesting that the district court relied on only the residual clause in sentencing him.” 871 F.3d at 1224.

         Fourth, as in Beeman, McKenzie has not pointed to any case law - either binding or non-binding - that existed at the time of sentencing that would indicate that the district court more likely than not relied only on the residual clause to find that his Alabama second-degree arson conviction qualified as a violent felony. This court, like the Magistrate Judge, did not find any precedent from this circuit that analyzed Alabama's second-degree arson statute under the residual clause. See Beeman, 871 F.3d at 1224 (noting that the movant had identified no ‚Äúprecedent [from the time he was sentenced] holding, or otherwise making obvious, that a ...


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