Robinson v. United States

• Decision Date: 21 March 2019
• Docket Number: Case No.: 3:08-cr-205-J-32JRK,Case No.: 3:16-cv-802-J-32JRK
• Parties: CLARENCE EUGENE ROBINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Florida

CLARENCE EUGENE ROBINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No.: 3:16-cv-802-J-32JRK

Case No.: 3:08-cr-205-J-32JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

March 21, 2019

ORDER

This case is before the Court on Petitioner Clarence Eugene Robinson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion) and Supporting Memorandum (Civ. Doc. 11, Memorandum).¹ Petitioner pled guilty to conspiracy to distribute oxycodone, hydrocodone, and alprazolam, as well as possession of a firearm by a convicted felon. (See Crim. Doc. 50, Plea Agreement). The Court sentenced Petitioner to a term of 235 months in prison after determining he was an armed career criminal. (See Crim. Doc. 59, Judgment). Petitioner raises a single claim: that the Court incorrectly sentenced him under the Armed Career Criminal Act (ACCA) in light of the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015). The United States has responded (Civ. Doc. 18,Response), and Petitioner has replied (Civ. Doc. 19, Reply). Thus, the matter is ripe for review.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has determined that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief). For the reasons set forth below, Petitioner's § 2255 Motion is due to be denied.

I. The ACCA and Johnson

Under 18 U.S.C. § 922(g), a person convicted of being a felon in possession of a firearm is ordinarily subject to a maximum term of imprisonment of 10 years. Under the ACCA, however, that person is subject to an enhanced mandatory minimum sentence of 15 years in prison if he has three or more prior convictions for a violent felony or a serious drug offense, or both. 18 U.S.C. § 924(e)(1). The ACCA defines the term "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). Subsection (i) is referred to as the "elements clause," the first nine words of subsection (ii) are referred to as the"enumerated offense" clause, and the rest of subsection (ii), which is emphasized above, is referred to as the "residual clause." United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

In Johnson v. United States, the Supreme Court held that the residual clause is unconstitutionally vague. 135 S. Ct. at 2557-58, 2563. However, the Supreme Court made clear that the elements clause and the enumerated offense clause remain unaffected. Id. at 2563. Later, in Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.

For a prisoner to successfully challenge his ACCA sentence based on Johnson, he must prove "more likely than not" that reliance on the residual clause led the sentencing court to impose the ACCA enhancement. Beeman v. United States, 871 F.3d 1215, 1220-22 (11th Cir. 2017), cert. denied, — S. Ct. —, 2019 WL 659904 (Feb. 19, 2019).

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 (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense.

Id. at 1221. "If 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.

Whether the sentencing court relied on the residual clause is a "historical fact," which is determined by reference to the state of affairs that existed at the time of sentencing. See id. at 1224 n.5. Thus, court decisions rendered afterward holding that an offense does not qualify under the elements clause or the enumerated offense clause "cast[ ] very little light, if any, on th[is] key question of historical fact." Id. A prisoner can prove that the sentencing court relied on the residual clause in two ways. First, the prisoner can point to "direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in that case." Id. at 1224 n.4. Alternatively, absent direct evidence, there will

sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement. For example, there could be statements in the PSR [Presentence Investigation Report], which were not objected to, recommending that the enumerated clause and the elements clause did not apply to the prior conviction in question and did not apply to other prior convictions that could have served to justify application of the ACCA. Or the sentencing record may contain concessions by the prosecutor that those two other clauses do not apply to the conviction in question or others.

Id. A prisoner may also circumstantially prove that the ACCA sentence depended on the residual clause "if the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony." Id. at 1224 n.5 (emphasis added). However, if "'the evidence does not clearly explain what happened ... the party with the burden loses.'" Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).

II. Discussion

As an initial matter, Petitioner is not entitled to relief from his ACCA sentence because he has not carried his burden under Beeman. Petitioner has not submitted evidence that indicates, directly or indirectly, that the Court relied on the residual clause at the time it sentenced him. Because Petitioner cannot show that the Court "relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause," Beeman, 871 F.3d at 1221, he is not entitled to relief under Johnson.

Additionally, the record shows that at sentencing, the United States supported the ACCA enhancement by submitting Shepard² documents from the following prior convictions: (1) attempted robbery under Florida law, (2) two counts of aggravated assault under Florida law, (3) two counts of assaulting a federal agent with a deadly weapon, in violation of 18 U.S.C. § 111, and two counts of aggravated battery under § 784.045, Fla. Stat., all arising from the same incident, as well as (4) armed robbery under Florida law. Under binding circuit precedent, each of these prior convictions still qualifies as a violent felony following Johnson.³

A. Violent Felony Number One: Attempted Robbery

As Exhibit 1 at sentencing, the United States submitted an information which alleged that on August 10, 1969, Petitioner "by force and violence and assault, and by putting in fear," robbed a victim of $451.26 in currency. (Crim. Doc. 58-2, Gov't Sentencing Ex. 1 at 1). The judgment, which was entered on January 25, 1971, reflects that Petitioner pled guilty to "attempted robbery." (Id. at 3). Although neither the information nor the judgment cited a particular statute, robbery was then a crime under § 813.011, Fla. Stat. (1969) (renumbered § 812.13, Fla. Stat.). The former § 813.011 provided:

Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.

Burney v. State, 800 So. 2d 662, 663 (Fla. 2d DCA 2001) (quoting § 813.011, Fla. Stat. (1969)). Section 813.011 was later replaced with § 812.13, but the crime of robbery has consistently required the use of force, violence, assault, or putting in fear. Compare § 813.011, Fla. Stat. (1969) with § 812.13, Fla. Stat. (1992); see also Burney, 800 So. 2d at 663 (stating that § 812.13 parallels the 1969 statute). Thus, the element of using force, violence, assault, or putting in fear has remained unchanged since Petitioner committed the offense in 1969.

The United States Supreme Court and the Eleventh Circuit Court of Appeals have each held that robbery under Florida law is categorically a violent felony under the ACCA's elements clause because it includes the element of force, violence, assault,or putting in fear. Stokeling v. United States, 139 S. Ct. 544, 554-55 (2019); United States v. Fritts, 841 F.3d 937, 939-44 (11th Cir. 2016); United States v. Seabrooks, 839 F.3d 1326, 1338-45 (11th Cir. 2016); United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006); see also United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011) (attempted robbery under Florida law is a "crime of violence" under the career offender guideline's elements clause, U.S.S.G. § 4B1.2(a)(1)). Although Petitioner's conviction was for attempted robbery rather than a completed robbery, that distinction makes no difference. "Because Florida...