Levert v. United States, 032119 FED11, 18-10620

Docket Nº:18-10620
Opinion Judge:PER CURIAM.
Party Name:ANDREW LEVERT, Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Judge Panel:Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.
Case Date:March 21, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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ANDREW LEVERT, Petitioner - Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee.

No. 18-10620

United States Court of Appeals, Eleventh Circuit

March 21, 2019

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket Nos. 2:16-cv-08084-LSC, 2:01-cr-00164-LSC-TMP-1

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM.

Andrew Levert, proceeding pro se, appeals the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate. After careful review of the parties' briefs and the record, we affirm.

I

Mr. Levert is a federal prisoner serving a 236-month sentence for the possession of a firearm as a felon in violation of 18 U.S.C. § 922(g). A jury found him guilty in 2002 and he was sentenced under the mandatory minimum provisions of the Armed Career Criminal Act ("ACCA") based on three prior convictions under California law-two for robbery with a firearm and one for assault with a deadly weapon. See 18 U.S.C. § 924(e). Mr. Levert's presentence investigation report (PSI) stated that the robberies qualified as violent felonies under the residual or elements clauses of the ACCA, and the assault qualified as a violent felony under the elements clause. Mr. Levert did not object to the PSI and there was no additional discussion about his prior convictions during the sentencing hearing. He appealed, and we affirmed his conviction and sentence. See United States v. Levert, 87 Fed.Appx. 712 (11th Cir. 2003).

In 2002, Mr. Levert filed a motion under 28 U.S.C. § 2255 arguing that he was denied effective assistance of trial counsel, a fair trial, and effective assistance of appellate counsel. The district court denied that motion with prejudice. In June of 2016, following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Mr. Levert sought and was granted authorization to file a second or successive § 2255 motion.

Mr. Levert argued in his motion that his two prior robbery convictions no longer qualify as violent felonies under the residual clause of ACCA, which Johnson held void for vagueness. He also argued that his two prior robbery convictions do not qualify as violent felonies under the elements clause of the ACCA because California robbery does not require the use, threatened use, or attempted use of physical force.

Before reaching the merits of the § 2255 motion, the district court considered whether Mr. Levert had met the requirements for filing a second or successive application under § 2255(h). It concluded that, under our recent binding precedent of Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), Mr. Levert had not demonstrated that it was "more likely than not" that the sentencing court had relied upon the residual clause-rather than the elements clause-to enhance his sentence under the ACCA. The district court dismissed Mr. Levert's § 2255 motion as an improper successive motion, and he appealed.[1]

II

Mr. Levert argues on appeal that the standard set forth in Beeman does not apply and that he need only show that the ACCA sentencing enhancement was no longer authorized after Johnson voided the residual clause. He also maintains that the force element of the California robbery statute was unconstitutionally applied in the computation of his sentence.

We review de novo the district court's dismissal of a § 2255 motion as second or successive. See McIver...

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