Weeks v. United States, 17-10049

• Decision Date: 22 July 2019
• Docket Number: No. 17-10049,17-10049
• Parties: Jerome Julius WEEKS, a.k.a. Clarence Royden Weekes, etc., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

930 F.3d 1263

Jerome Julius WEEKS, a.k.a. Clarence Royden Weekes, etc., Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-10049

United States Court of Appeals, Eleventh Circuit.

July 22, 2019

George Walton Walker, III, Page Scrantom Sprouse Tucker & Ford, PC, Columbus, GA, George Walton Walker, III, The Finley Firm, PC, Auburn, AL, J. Benjamin Finley, Attorney, Robert Walker Garrett, Travis Carlisle Hargrove, The Finley Firm, PC, Columbus, GA, for Plaintiffs-Appellants.

Glenn Channing Gamble, James Robert McKoon, Jr., McKoon & Gamble, Phenix City, AL, James P. Graham, Jr., The Graham Legal Firm, Phenix City, AL, for Defendant-Appellee PHENIX CITY, ALABAMA.

Huey Thomas Wells, Jr., Stewart James Alvis, Kacey Leigh Weddle, Maynard Cooper & Gale, PC, Birmingham, AL, for Defendant-Appellee REDFLEX TRAFFIC SYSTEMS, INC.

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

This appeal presents a unique factual and legal situation. As set forth below, it involves a successive motion under 28 U.S.C. § 2255, with respect to which we granted Mr. Jerome Weeks leave to file. We concluded he had made a prima facie showing that his prior convictions for resisting arrest and assault and battery—which had served as predicates for the enhancement of his federal sentence under the Armed Career Criminal Act (the "ACCA")—no longer qualified as violent felonies under the ACCA in light of the ruling of the Supreme Court in Samuel Johnson v. United States ¹ that the ACCA’s residual clause is unconstitutionally vague. Section 2255 movants raising Samuel Johnson claims "must show that—more likely than not—it was use of the residual clause that led to the sentencing court’s enhancement of [their] sentence." Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017), cert. denied, ––– U.S. ––––, 139 S. Ct. 1168, 203 L.Ed.2d 211 (2019). The necessary showing, according to Beeman, is that the residual clause was the sole basis for the enhancement. Id.

This appeal is unique because, after sentencing but during the pendency of Mr. Weeks’s direct appeal, there were significant developments relevant to the issue of whether the residual clause was the sole basis for his ACCA enhancement. Thus, we must decide, when a claimant challenged his ACCA enhancement on direct appeal, whether the relevant time frame for this inquiry is limited to the sentencing hearing or if it extends through the claimant’s direct appeal. We hold that, where a claimant challenged his ACCA enhancement on direct appeal, the relevant time frame to consider when determining whether the residual clause solely caused the enhancement of a claimant’s sentence extends through direct appeal. Because Mr. Weeks has carried his burden of showing that it is more likely than not that the residual clause, and only the residual clause, caused his sentence to be enhanced and that he no longer has three ACCA predicate convictions, we reverse the district court’s order denying his § 2255 motion and remand for resentencing.

I. BACKGROUND

A. Conviction and Sentencing

After a stipulated bench trial, Mr. Weeks was found guilty of one count of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1), (e)(1) and two counts of making false statements in the course of purchasing firearms in violation of 18 U.S.C. § 922(g)(2) and § 924(a)(2). The ACCA provides for a fifteen-year mandatory minimum sentence for violations of § 922(g) by a defendant who has three or more prior convictions for a "violent felony" or "serious drug offense." Id. § 924(e)(1). Prior to Mr. Weeks’s sentencing hearing, United States Probation prepared a presentence investigation report ("PSR") recommending that, because he had convictions for two prior violent felonies and two serious drug offenses, he qualified for an ACCA-enhanced sentence. Relevant for purposes of this appeal, the ACCA defines a "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). "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.’ " United States v. Pickett, 916 F.3d 960, 962 (11th Cir. 2019).²

Probation relied on four of Mr. Weeks’s prior convictions from Massachusetts in recommending that he qualified for an ACCA-enhanced sentence: (1) assault and battery, (2) resisting arrest, (3) distributing cocaine, and (4) possession with intent to distribute cocaine.³ Mr. Weeks objected to this recommended sentencing enhancement, contending that these prior convictions did not qualify as violent felonies. The Government agreed with Probation’s recommendation. As to Mr. Weeks’s prior assault and battery conviction, the PSR stated that "[t]he criminal complaint in this instance alleged that the defendant assaulted and beat the victim."⁴ The Government did not introduce any Shepard ⁵ documents and the relevant portions of the PSR did not contain any further information derived from Shepard documents.

1. Resisting Arrest Prior Conviction at Sentencing

At the sentencing hearing, the district court heard arguments from the parties as to whether these prior convictions qualified as violent felonies under the ACCA. At the time of Mr. Weeks’s resisting arrest offense, Massachusetts law provided:

(a) A person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another, by:

(1) using or threatening to use physical force or violence against the police officer or another; or

(2) using any other means which creates a substantial risk of causing bodily injury to such police officer or another.

Mass. Gen. Laws ch. 268, § 32B(a). In his sentencing memorandum and at the sentencing hearing, Mr. Weeks argued that while § 32B(a)(1) qualified as a violent felony, § 32B(a)(2) did not. The Government argued that both subsections qualified, pointing to First Circuit case law, United States v. Almenas, which held that Massachusetts resisting arrest qualified as a crime of violence under U.S.S.G. § 4B1.2 because the first method of violating the statute "fits squarely" within the elements clause while the second method "falls safely within the residual clause." 553 F.3d 27, 32–36 (1st Cir. 2009).

2. Assault and Battery Prior Conviction at Sentencing

At the time of Mr. Weeks’s assault and battery offense, Massachusetts law provided:

Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than two and one half years in a house of correction or by a fine of not more than five hundred dollars.

Mass. Gen. Laws ch. 265, § 13A (amended 2002). The offense is not defined by statute but instead finds its definitions in Massachusetts common law. See Commonwealth v. Burke, 390 Mass. 480, 481–82, 457 N.E.2d 622, 623–24 (1983). Assault and battery under § 13A encompasses three common-law crimes: harmful battery, reckless battery, and offensive battery. See Commonwealth v. Eberhart, 461 Mass. 809, 818, 965 N.E.2d 791, 798 (2012) ; Burke, 390 Mass. at 482, 457 N.E.2d at 624 ; Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194–95, 897 N.E.2d 71, 76 (2008). Harmful battery is "[a]ny touching ‘with such violence that bodily harm is likely to result.’ " See Burke, 390 Mass. at 482, 457 N.E.2d at 624. Reckless battery is a "wilful, wanton and reckless act which results in personal injury to another." See Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274, 450 N.E.2d 1100, 1102 (1983). Finally, offensive battery is when "the defendant, without justification or excuse, intentionally touche[s] the victim, and that ... touching, however slight, occur[s] without the victim’s consent." See Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476, 892 N.E.2d 805, 814 (2008) ; accord Eberhart, 461 Mass. at 818, 965 N.E.2d at 798.

In his sentencing memorandum and at the sentencing hearing, Mr. Weeks argued that the charging language used in the criminal complaint for his prior assault and battery conviction—"defendant assaulted and beat the victim"—was boilerplate language used in charging assault and battery offenses regardless of the type of battery that occurred.⁶ He contended that his charging document could not support an inference that he committed a violent felony because it encompassed offensive battery, which is nonviolent. Mr. Weeks also pointed to the certiorari petition that had been granted from the Eleventh Circuit’s decision in Curtis Johnson, which was poised to answer whether nonharmful touching could qualify as a violent felony under the ACCA. See United States v. Curtis Johnson, 528 F.3d 1318 (11th Cir. 2008), cert. granted, 555 U.S. 1169, 129 S. Ct. 1315, 173 L.Ed.2d 583 (2009).

The Government argued in its sentencing memorandum and at the sentencing hearing that the "assaulted and beat" charging language indicated that Mr. Weeks was convicted of harmful battery, as previously held by the First Circuit. See United States v. Rivera, 562 F.3d 1, 1 (1st Cir. 2009) ("[T]he ‘did assault and beat’ charging language suffices to identify the ‘harmful’ brand of assault and battery, qualifying the offense as a violent felony under the ACCA."), abrogated by United States v. Holloway, 630 F.3d 252 (1st Cir. 2011).

In announcing its Sentencing Guideline calculations, the sentencing court stated:

I’m going to overrule the Defendant’s objection to paragraph 45 of the Pre-Sentence Report. I think that the Defendant does qualify for the armed career criminal enhancement based on the two drug charges for

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