738 F.3d 1253 (11th Cir. 2013), 12-11212, Bryant v. Warden, FCC Coleman-Medium

Docket Nº:12-11212.
Citation:738 F.3d 1253
Opinion Judge:HULL, Circuit Judge:
Party Name:Dudley BRYANT, Jr., Petitioner-Appellant, v. WARDEN, FCC COLEMAN-MEDIUM, Respondent-Appellee.
Attorney:Leland H. Kynes, Holland & Knight, LLP, Atlanta, GA, for Petitioner-Appellant. Linda Julin Mcnamara, Amanda C. Kaiser, U.S. Attorney's Office, Tampa, FL, Michael A. Rotker, U.S. Department of Justice, Robert E. O'Neill, Washington, DC, for Respondent-Appellee.
Judge Panel:Before HULL and MARTIN, Circuit Judges, and BOWEN,[*] District Judge. MARTIN, Circuit Judge, concurring in part and dissenting in part:
Case Date:December 24, 2013
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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738 F.3d 1253 (11th Cir. 2013)

Dudley BRYANT, Jr., Petitioner-Appellant,


WARDEN, FCC COLEMAN-MEDIUM, Respondent-Appellee.

No. 12-11212.

United States Court of Appeals, Eleventh Circuit.

December 24, 2013

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Leland H. Kynes, Holland & Knight, LLP, Atlanta, GA, for Petitioner-Appellant.

Linda Julin Mcnamara, Amanda C. Kaiser, U.S. Attorney's Office, Tampa, FL, Michael A. Rotker, U.S. Department of Justice, Robert E. O'Neill, Washington, DC, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket Nos. 5:08-cv-00550-WTH-TBS; 8:00-cr-00469-T-27-TGW.

Before HULL and MARTIN, Circuit Judges, and BOWEN,[*] District Judge.

HULL, Circuit Judge:

Petitioner Dudley Bryant appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas petition, brought pursuant to the " savings clause" in 28 U.S.C. § 2255(e). Bryant's appeal presents the issue to which this Court alluded in Wofford v. Scott, 177 F.3d 1236 (11th Cir.1999), and subsequently left undecided in Gilbert v. United States (Gilbert II), 640 F.3d 1293 (11th Cir.2011) (en banc), cert. denied, __ U.S. __, 132 S.Ct. 1001, 181 L.Ed.2d 743 (2012), and Williams v. Warden, 713 F.3d 1332 (11th Cir.2013). The issue is whether the savings clause in § 2255(e) permits a federal prisoner to bring a § 2241 petition when he has established that his current 235-month sentence for an 18 U.S.C. § 922(g) conviction exceeds the 10-year statutory maximum penalty authorized by Congress under 18 U.S.C. § 924(a).

When a conviction has become final, a federal prisoner usually may challenge the legality of his detention only through a § 2255 motion. However, the savings clause in § 2255(e) permits the prisoner to file a § 2241 habeas petition when a § 2255 motion was " inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e). After review of the record, the briefs of the parties and the amicus, and having the benefit of oral argument,

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we conclude Bryant has satisfied the savings clause's requirements in § 2255(e).

Bryant has proven that his prior § 2255 motion was " inadequate or ineffective to test the legality of his detention" and that his § 2241 petition can now proceed under § 2255(e) because: (1) from the time of his initial sentencing in 2002 throughout his first § 2255 proceeding in 2005, our Circuit's binding precedent in United States v. Hall, 77 F.3d 398, 401-02 (11th Cir.1996), held that a concealed-firearm offense under Fla. Stat. § 790.01 was a " violent felony" under § 924(e) and squarely foreclosed Bryant's claim that he was erroneously sentenced above the 10-year statutory maximum penalty in § 924(a); (2) subsequent to Bryant's first § 2255 proceeding, the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under § 924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008), and United States v. Canty, 570 F.3d 1251, 1255 (11th Cir.2009), overturned our Circuit precedent in Hall; (3) Begay 's new rule is substantive and applies retroactively to Bryant's § 924(e) claim on collateral review; (4) as a result of pure § 924(e)- Begay error and retroactive application of Begay, Bryant's 235-month sentence exceeds the 10-year statutory maximum authorized by Congress in § 924(a); and (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum penalty. Accordingly, we vacate the district court's dismissal of Bryant's § 2241 petition and remand with instructions set forth herein.

We first review the procedural history of Bryant's case, the savings clause in § 2255(e), and our Circuit's prior rulings about § 2255(e). We then summarize the five specific requirements a § 2241 petitioner must satisfy to proceed under § 2255(e) and explain why Bryant has satisfied them.


A. Indictment in 2000

In December 2000, a federal grand jury indicted Bryant on one count of knowingly possessing firearms and ammunition while being a convicted felon, " [i]n violation of [18 U.S.C. §§] 922(g)(1) and 924(e)." While § 922(g)(1) prohibits the possession of any firearm or ammunition by a convicted felon, § 922 contains no penalty provision. See 18 U.S.C. § 922(g).

The penalties for § 922(g) offenses are laid out in various provisions of § 924. As to Bryant's § 922(g)(1) crime, § 924(a)(2) provides that a person who is convicted of knowingly violating § 922(g)(1) shall be " imprisoned not more than 10 years." 18 U.S.C. § 924(a)(2). The statutory maximum penalty for a § 922(g)(1) crime is 10 years' imprisonment under § 924(a)(2).

Section 924(e), known as the Armed Career Criminal Act (" ACCA" ), prescribes different and higher statutory penalties for the § 922(g)(1) felon-in-possession offense. Section 924(e)(1) provides that, " [i]n the case of a person who violates section 922(g)" and " has three previous convictions by any court ... for a violent felony or a serious drug offense, or both," that person " shall be ... imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). The statutory maximum under § 924(e)(1) is life in prison. United States v. Brame, 997 F.2d 1426, 1428 (11th Cir.1993). The increased statutory penalties in § 924(e) are often referred to as the " ACCA enhancement."

Bryant's indictment gave him notice that the government intended to seek the increased statutory penalties in § 924(e)

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based on his prior concealed-firearm conviction and two drug convictions. Bryant's indictment charged that he had these felony convictions: (1) a 1988 Florida conviction for delivery and possession of cocaine; (2) 1989 Florida convictions for carrying a concealed firearm and being a felon in possession of a firearm; and (3) 1991 Florida convictions for delivery and possession of cocaine and for obstructing or opposing an officer without violence.

B. Guilty Plea in 2001

In July 2001, Bryant pled guilty to his one-count indictment. During the plea hearing, the district court informed Bryant that, because he had " 3 qualifying felony convictions," he was facing a mandatory minimum sentence of 15 years and maximum sentence of life imprisonment, pursuant to § 924(e). Bryant acknowledged his understanding of these penalties.

C. Presentence Investigation Report

Bryant's Presentence Investigation Report (" PSI" ) indicated that, because Bryant had 3 prior felony convictions for a " violent felony" or a " serious drug offense," he was subject to a mandatory minimum penalty of 15 years' imprisonment and a statutory maximum penalty of life, pursuant to § 924(e). In Paragraph 12 of the " Offense Conduct" section, the PSI referenced the same prior felony convictions as the indictment.

Bryant's base offense level was 24, pursuant to U.S.S.G. § 2K2.1, for his § 922(g)(1) felon-in-possession offense. Bryant received a 4-level increase under § 2K2. 1(b)(5) for possessing firearms in connection with another felony offense,1 and a 1-level increase under § 2K2. 1(b)(1)(A) for possessing three or more firearms, which resulted in an initial adjusted offense level of 29.

In the criminal history section, the PSI listed not only Bryant's three convictions shown in the indictment, but also his other convictions. Among them was a 1988 felony conviction for " Burglary of a Structure." Given all of his prior convictions, the PSI assigned Bryant 18 criminal history points and placed him into criminal history category VI.

Bryant's offense level of 29 and criminal history category of VI yielded a guidelines range of 151 to 188 months' imprisonment. See U.S.S.G. ch. 5, pt. A, Sentencing Table (2000).

The PSI also raised Bryant's offense level from 29 to 33 under U.S.S.G. § 4B1.4(b)(3)(B), the armed-career-criminal guideline. This armed-career-criminal classification did not change Bryant's criminal history category of VI, which was already the highest available. The offense level of 33, combined with a criminal history category of VI, resulted in a guidelines range of 235 to 293 months in prison.

D. Objections to the PSI and Sentencing Hearing in 2002

Bryant raised several objections to the PSI, including an objection to his classification as an armed career criminal. Bryant reiterated this objection at the sentencing hearing, arguing that his prior concealed-firearm conviction, which was referenced in the indictment, did not qualify as a " violent felony" under § 924(e)(2)(B) and, therefore, he should not be subject to the increased statutory maximum penalty of life in § 924(e)(1). The government countered that Bryant had " 5 or 6 felony convictions which also

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could have been used" for § 924(e) purposes.

In response to the government's claim that Bryant had several other qualifying felony convictions, the district court stated: " I'm going through all of [Bryant's prior convictions], because there's a reference to 4 or 5 other felonies that could have been used from the government, and I'm going to find out if that's accurate." The district court then conducted a thorough examination of the felony offenses listed in paragraphs 33 through 49 of the criminal history section of Bryant's PSI to determine which offenses could support an increased statutory maximum penalty under § 924(e). The district court's review was so thorough that the court specifically addressed all of Bryant's prior convictions, including his misdemeanor convictions, other than Bryant's obviously non-qualifying misdemeanor convictions for public drinking and attempting to cash stolen checks.

During the district court's review, the government and Bryant were afforded multiple opportunities to respond directly to the...

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