United States v. Pickett

• Decision Date: 20 February 2019
• Docket Number: No. 17-13476,17-13476
• Citation: 916 F.3d 960
• Parties: UNITED STATES of America, Plaintiff - Appellant, v. Albert PICKETT, Defendant - Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

916 F.3d 960

UNITED STATES of America, Plaintiff - Appellant,

v.Albert PICKETT, Defendant - Appellee.

No. 17-13476

United States Court of Appeals, Eleventh Circuit.

February 20, 2019

Brandy Brentari Galler, U.S. Attorney's Office, WEST PALM BEACH, FL, Aileen Cannon, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, Robin W. Waugh, U.S. Attorney Service - SFL, MIAMI, FL, for Plaintiff - Appellant.

Andrew L. Adler, Federal Public Defender's Office, FORT LAUDERDALE, FL, Michael Caruso, Federal Public Defender, Bunmi A. Lomax, Federal Public Defender's Office, MIAMI, FL, for Defendant - Appellee.

Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG,^* Judge.

MARCUS, Circuit Judge:

The district court granted Albert Pickett relief on a 28 U.S.C. § 2255 motion to vacate his sentence, ruling that, following changes in constitutional law regarding the Armed Career Criminal Act (ACCA), Pickett no longer qualified as an armed career criminal and was not eligible for an enhanced sentence. The government appealed but, before any briefing took place, this Court ruled in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), that § 2255 movants were required to meet a higher burden than the one the district court had applied. The parties agree that Beeman applies. We have applied it in this case and conclude that Pickett has not met the standard it sets. However, Pickett did not and could not know that he would be required to meet the heightened Beeman standard on appeal, and we cannot discern from the historical record and case law at the time of sentencing what the district court had in mind when it sentenced him. The district court has handled the case with great care, and had little reason to think, in 2007, that distinctions between various clauses in ACCA would take on such significance in the coming decade. We therefore vacate and remand this case to the district court, where Pickett will have the opportunity to make his case for relief under the new standard.

I.

A.

In 2006 Pickett pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pickett had the requisite predicate offenses to qualify as an armed career criminal under ACCA. The statute provides an enhanced sentence for a violation of § 922(g) by a defendant with three or more prior convictions for a "violent felony" or a "serious drug offense." Id. § 924(e)(1). Pickett’s enhancement was based on four prior Florida convictions: strong armed robbery in 1988; battery on a law enforcement officer in 1991; aggravated battery on a pregnant victim in 1993; and battery on a law enforcement officer and resisting arrest with violence in 2001.

ACCA defines a "violent felony" as "any crime punishable by a term of imprisonment 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) (emphasis added). Subsection (i) is called the "elements clause." The first part of subsection (ii) is known as the "enumerated offenses clause," and the second is the "residual clause."

On February 2, 2007, Pickett was sentenced to 180 months’ imprisonment, to be followed by five years of supervised release. He raised no objections to the Presentence Investigation Report (PSI), which included the four predicate offenses in the Guidelines calculation, or to the final sentence. Nor did Pickett file a direct appeal with this Court.

Pickett lodged his first, unsuccessful § 2255 motion in 2010. He claimed that, under a then-recent Supreme Court decision, Johnson v. United States (Curtis Johnson ), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), he no longer had three qualifying predicate offenses. Curtis Johnson had held that simple battery under Florida law was not categorically a violent felony under ACCA’s elements clause because it could be committed by a mere touching and therefore did not necessarily have as an element the use of physical force. Id. at 139–40, 130 S.Ct. 1265. Applying the modified categorical approach, a magistrate judge reasoned that Pickett’s three battery convictions were violent felonies under the residual clause. The district court adopted this reasoning, denied the motion on the merits, and also found that it was procedurally barred.

The residual clause thereafter was held unconstitutional by the Supreme Court in Johnson v. United States (Johnson ), ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). The Court concluded that it was impermissibly vague because "the indeterminacy of the wide-ranging inquiry required by the residual clause both denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges." Id. at 2557. Johnson’s rule was made retroactive in Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

Pickett applied for leave to file the instant motion, his second § 2255 motion, in 2016, after Johnson and Welch. He argued that, without the residual clause, none of the four convictions identified in his PSI as the basis for enhancement remained crimes of violence. This meant he no longer had three predicate offenses under ACCA and did not qualify as an armed career criminal. He petitioned for a Certificate of Appealability (COA), which this Court granted. A panel of this Court observed that "[t]he record ... [was] unclear as to which clause of the ACCA the district court relied on in enhancing Pickett’s sentence."

The case then returned to the district court, the same court that had initially sentenced Pickett. The court granted Pickett’s motion and vacated his sentence. At that time, the showing required to make a successful Johnson claim was not altogether clear. One case had suggested in dicta that the movant had to "prove[ ] that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence." In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016) (per curiam). Another said, also in dicta, that it was enough if " § 924(c) may no longer authorize [the] sentence as that statute stands after Johnson" and would not have focused on historical inquiry about sentencing. In re Chance, 831 F.3d 1335, 1341 (11th Cir. 2016). The magistrate judge who issued a Report and Recommendation in Pickett’s case adopted the latter standard, which is easier for a movant to meet. The district court did not comment on this dispute, but adopted most of the magistrate judge’s reasoning including the application of the lesser of the two burdens. Under the applicable law in May 2017, Pickett lacked three convictions for violent felonies,¹ and so he was granted collateral relief under § 2255 by the district court at that time.

The district court entered an amended judgment that sentenced Pickett to 120 months’ imprisonment plus six months’ supervised release. Since he had already served ten years, he was released from custody. The government then filed this appeal.

B.

After the government filed its appeal, but before any briefing had taken place, a panel of this Court decided Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), which provided a precedential answer to what a movant needed to show to succeed on a § 2255 motion. See Beeman, 871 F.3d at 1221–22. We concluded that the more stringent standard was appropriate, and the parties agree that it applies in this case. Thus, "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 [the movant’s] sentence." Id. at 1222. The movant can succeed in the face of some uncertainty, but must show more than just equipoise -- the motion fails "[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." Id. Put simply, it must be more likely than not that the sentence was based on the residual clause and only the residual clause. See id. at 1221–22.

Whether the residual clause was the basis for the sentencing court’s enhancement is a question of "historical fact." Id. at 1224 n.5. To determine this "historical fact" we look first to the record, and then, if the record proves underdeterminative, we can look to the case law at the time of sentencing. 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. at 1224 n.4. We might also look elsewhere in the record, to a PSI, for example, to find "circumstantial evidence." Id.

Denying relief in Beeman, we noted that the movant had identified no "precedent [from the time he was sentenced] holding, or otherwise making obvious, that a violation of [his state crime] qualified as a violent felony only under the residual clause." Id. at 1224. Decisions that came down after the sentencing would "cast[ ] very little light, if any, on the key question of historical fact." Id. at 1224 n.5.

Here, by necessity, we also consider the state of the law involving a related statute. Statutory definitions for battery on a law enforcement officer and battery on a pregnant victim are essentially defined as simple battery against a particular type of person. See Fla. Stat. §§ 784.03 (simple battery); 784.045(b) (pregnant victim); 784.07(2) (law enforcement officer). Battery on a law enforcement officer and battery on a pregnant victim thus have as their elements all the elements of simple battery plus the additional element of a particular identity for the victim. The elements clause requires that a felony "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). If...