United States v. Pearson

• Decision Date: 15 October 2019
• Docket Number: No. 17-14619,17-14619
• Citation: 940 F.3d 1210
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Roderick Corlion PEARSON, a.k.a. Bullet, Defendant – Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

940 F.3d 1210

UNITED STATES of America, Plaintiff – Appellee,

v.Roderick Corlion PEARSON, a.k.a. Bullet, Defendant – Appellant.

No. 17-14619

United States Court of Appeals, Eleventh Circuit.

October 15, 2019

Michael B. Billingsley, Jenny Lynn Smith, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, BIRMINGHAM, AL, for Plaintiff - Appellee.

Deanna Lee Oswald, Alexander Peter Vlisides, Federal Public Defender - NAL, HUNTSVILLE, Kevin L. Butler, Federal Public Defender, BIRMINGHAM, AL, for Defendant - Appellant.

Before TJOFLAT and NEWSOM, Circuit Judges, and ANTOON,^* District Judge.

TJOFLAT, Circuit Judge:

After robbing two banks in as many weeks, Roderick Pearson was indicted on five counts. He pled guilty to three of those, and a jury convicted him on the other two. He was sentenced for all five. A little over three years ago, we gave Pearson permission to file a successive motion under 28 U.S.C. § 2255.¹ In that motion, he collaterally attacked his sentence for one of the five counts and argued his sentence for that count was longer than the law allowed. The District Court granted relief on that count, vacated Pearson’s sentence, and held a resentencing hearing. At the resentencing hearing, Pearson raised a brand new § 2255 challenge. The District Court denied the § 2255 challenge on the merits and handed down a new sentence. Pearson now appeals the denial of his brand new § 2255 challenge and his new sentence.

We hold that the District Court didn’t have jurisdiction over Pearson’s brand new § 2255 challenge because we never gave Pearson permission to raise it. Thus, we vacate the Court’s merits decision and remand with instructions to dismiss the new § 2255 challenge. We also hold that Pearson failed to meet his burden of showing that his new sentence is substantively unreasonable.

I.

A.

During a two-week period between January 12 and January 25, 2007, Pearson robbed two Alabama banks at gunpoint. He followed a similar routine at both banks: he walked into the banks with his face covered; he pulled out a handgun and told everyone to get on the floor; then he ordered the tellers to put money in a bag. Pearson made off with roughly $5,000 from the first bank and $12,000 from the second. He was arrested soon after the second robbery and had $11,610 in cash and a pistol on him. He admitted that he was involved in the second robbery, but he said he wasn’t the person who actually robbed the bank at gunpoint.

B.

After those two bank robberies, on February 28, 2007, Pearson was indicted on five counts. Counts One and Three were for the robberies themselves.² Counts Two and Four were for brandishing a firearm during those robberies.³ And Count Five was for possessing a firearm (during the second robbery) as a convicted felon.⁴ On May 7, Pearson pled guilty to Counts Three, Four, and Five. The trial proceeded on Counts One and Two, and the jury found him guilty as charged.

Before his sentencing hearing on August 16, 2007, the District Court’s probation office prepared a presentence report ("PSR") that prescribed a Guidelines sentencing range of 646 to 711 months’ imprisonment for the five convictions as a whole. The Guidelines dictated this range in large part because Counts Two, Four, and Five carried hefty mandatory minimums for Pearson.

First, on Count Two, Pearson was subject to a mandatory minimum sentence of 84 months to be imposed consecutively to the sentences on Counts One, Three, and Five under 18 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(1)(D)(ii) because he "brandished" a firearm during the commission of the Count One robbery.

Likewise, second, on Count Four, he was subject to a mandatory minimum sentence of 300 months to be imposed consecutively to the sentences on Counts One, Two, Three, and Five under 18 U.S.C. §§ 924(c)(1)(A)(ii) and (c)(1)(C)(i) because he "brandished" a firearm during the commission of the Count Three robbery.

Third, on Count Five, Pearson was subject to a mandatory minimum sentence of 180 months under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because he had three prior convictions for "violent felonies" as defined in the ACCA.

At Pearson’s sentencing hearing, the District Court adopted the sentencing range that was computed in the probation office’s presentence report. The District Court noted that a sentence within the Guideline range would be "a very, very substantial sentence"—too substantial, in fact—and varied down below the range. But the Court could only vary down so much (82 months from the low end of 646 months) because of the substantial mandatory minimums that Counts Two, Four, and Five carried.

As a result, the Court sentenced Pearson to each of the mandatory minimums, to run consecutively, as it was required to do. With no mandatory minimums for Counts One and Three, the Court used its discretion in crafting a sentence for those two.⁵ Specifically, it grouped Counts One and Three with Count Five and borrowed Count Five’s 180-month sentence. It then sentenced Pearson to 180 months each for Counts One and Three, and those sentences would run concurrently with Count Five. So Pearson’s total sentence was 564 months.

Pearson appealed and challenged his convictions and total sentence, and we affirmed. See United States v. Pearson , 308 F. App'x 375, 376 (11th Cir. 2009) (per curiam).

C.

Next, in November of 2009, Pearson filed a pro se motion to vacate his convictions and sentence under 28 U.S.C. § 2255. He argued that his Count Two and Four convictions should be vacated because the indictment failed to allege every element of the offenses. The District Court held that this claim was procedurally defaulted and denied Pearson’s motion on August 10, 2011.⁶

D.

About four years after Pearson’s § 2255 motion was denied, the Supreme Court decided Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson , the Supreme Court held that the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.⁷ See 135 S. Ct. at 2563. The next year, the Supreme Court held that Johnson announced a substantive rule that applies retroactively on collateral review. Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

After these two decisions, Pearson filed in this Court an application for leave to file a second or successive § 2255 motion. He was required by statute to do this before filing a second or successive § 2255 motion in the District Court. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."). In his application, Pearson said that he wanted to challenge his Count Five sentence as unconstitutional. Specifically, he said, in light of Johnson and Welch , the three felony convictions the District Court relied on in sentencing him under the ACCA no longer qualified as violent felonies. See In re Pearson , No. 16-12277-J, slip op. at 2 (11th Cir. May 26, 2016). And without those three predicate offenses, he wouldn’t qualify for the ACCA’s enhancement. Id. In other words, Count Five would carry no mandatory minimum sentence.

We held that Pearson made a prima facie showing that he satisfied statutory requirements⁸ and granted Pearson’s application. See id. at 5. We explained that Johnson impacted Pearson’s sentence on Count Five because, if the felonies the District Court relied on did not qualify as violent felonies, the ACCA’s 180-month mandatory-minimum-sentence requirement would not apply. Id. at 3. Rather, Count Five would carry only a 120-month maximum sentence. Id. at 3–4. Thus, the absolute minimum sentence would decrease by 180 months because there was no longer any mandatory minimum for that count.⁹

Next, Pearson filed a second or successive § 2255 motion in the District Court. The Government conceded that Pearson no longer qualified for the ACCA enhancement and agreed that his Count Five sentence should be vacated. The District Court granted the second or successive § 2255 motion and vacated Pearson’s Count Five sentence.

The Court then relied on its authority under the "sentencing package doctrine" and vacated Pearson’s sentences for Counts One and Three.¹⁰ Specifically, the Court said that it "plainly considered the sentences for Counts One, Three, and Five to be part of the same sentencing package when it" handed down Pearson’s original sentence. "In hindsight," the Court noted, "the sentencing package was off the mark because the ACCA enhancement for Count Five’s sentence was based on the now-void residual clause."

Next, the District Court held a resentencing hearing, which we discuss in more detail below, and sentenced Pearson to 447 months’ imprisonment (down from 564 months):

• Counts One, Three, and Five: 63 months for each (down from 180 months), to run concurrently;

• Count Two: 84 months (the same as the first sentence), to run consecutively; and

• Count Four: 300 months (also the same as the first sentence), to run consecutively.

At the resentencing hearing, Pearson also challenged his convictions for Counts Two and Four (brandishing a firearm during and in relation to a crime of violence). He argued that those convictions must be vacated because the indictment failed to allege every element of the crime. Specifically, he claimed that the indictment did not allege that he "used, possessed, or carried the firearm." Of course, this argument was outside the scope of Pearson’s second or successive § 2255 motion. And more importantly, it was beyond the authorization that this Court gave the District Court to consider the motion. Remember, we authorized the District Court to consider Pearson’s Johnson claim—that’s it. The Government never mentioned that this was an unauthorized claim and instead argued that the indictment sufficiently laid out all of the...