Eleventh Circuit Holds Time on Appeal Counts When Considering If Sentence Was Imposed Under Residual Clause
by Dale Chappell
In a case that may have lowered one of the hurdles erected by the U.S. Court of Appeals for the Eleventh Circuit to stop the flow of relief being handed to federal prisoners under Johnson v. United States, 135 S. Ct. 2551(2015) (“Johnson 2015”), the Court held on July 22, 2019, that a change in law decided while a sentence is on direct appeal must be considered in determining whether the residual clause of the Armed Career Criminal Act (“ACCA”) was the basis of the sentence to allow Johnson relief.
Jerome Weeks had been fighting his ACCA sentence since it was imposed in 2010. He challenged it on direct appeal and lost. He challenged it again in a motion to vacate his sentence under 28 U.S.C. § 2255 in 2013 but was denied. When the U.S. Supreme Court declared the residual clause of the ACCA unconstitutional in 2015, Weeks was granted permission by the Eleventh Circuit to file another § 2255 motion in the district court. The Court said it appeared Weeks’ sentence was under the residual clause but left it up to the district court to decide that issue. But that was enough to get him back in the door.
In a short opinion by District Judge Thomas Thrash of the Northern District of Georgia, Weeks’ sentencing judge, his § 2255 motion was denied. Thrash applied the Eleventh Circuit’s decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), which held that in order to obtain relief under Johnson 2015, a prisoner must prove that his sentence relied “solely” on the residual clause. Thrash said that Weeks couldn’t prove his prior convictions for resisting arrest and assault and battery in Massachusetts qualified under only the residual clause at the time of his sentencing. The court granted a certificate of appealability, and Weeks appealed.
A non-argument panel of the Eleventh Circuit upheld the denial of Weeks’ motion. Like the district court, the Court of Appeals held that Weeks was blocked from relief by Beeman because he couldn’t prove both of his prior convictions were under the residual clause at sentencing. And because he had two qualifying drug priors, either of the violent felonies could qualify him for the ACCA penalty. But Weeks didn’t give up.
In his motion for a rehearing, Weeks pointed out that the case law regarding his prior violent felony convictions had changed while his sentence was on direct appeal, leaving both convictions under the residual clause. He argued that his case is different from Beeman because his sentence went to appeal, while the sentence in Beeman did not. The non-argument panel granted rehearing and sent Weeks’ appeal to an argument panel.
Under the ACCA, a prior conviction qualifies as a “violent felony” if it is punishable by more than a year and has “as an element” the use of force or is one of the enumerated offenses listed in the ACCA statute, 18 U.S.C. § 924(e). These two clauses are known as the “elements clause” and the “enumerated offenses clause.” At the time of Weeks’ sentencing, though, there was a third provision called the “residual clause,” which allowed a court to include an offense under the ACCA if it presented a “serious potential risk of physical injury to another.” Johnson 2015, of course, killed this third provision. The ACCA also counts nearly all drug trafficking offenses toward the three total priors needed for the penalty.
During Weeks’ sentencing, the court relied on case law from the First Circuit to find that his prior assault and battery conviction fell under the elements clause. Applying the ACCA penalty required the court to impose at least 15 years in prison. He received just five months shy of 20. Without the penalty, he would have faced at most 10 years. Weeks filed a direct appeal of his sentence.
While Weeks’ sentence was on direct appeal, the First Circuit, relying on the Supreme Court’s ruling in Johnson v. United States, 559 U.S. 133 (2010) (“Johnson 2010”), overturned the case law Weeks’ sentencing judge had relied on. Weeks promptly updated the Court of Appeals of the change. But the Court said it didn’t matter because his resisting arrest qualified under the residual clause, and that was enough with his prior drug convictions. The court affirmed his ACCA sentence.
Back to Weeks’ § 2255 motion, the question before the Eleventh Circuit on rehearing was whether Beeman requires a court to ignore developments in case law while a sentence is on direct appeal. In other words, whether new case law handed down while a sentence is on appeal applies to that sentence.
Recognizing that a sentence does not become “final” until the appeal “comes to an end,” the Court said that Weeks’ sentence was “not yet fixed at the time of sentencing.” Any new case law that came down while Weeks’ sentence was on appeal automatically applied to his case, the Court explained.
So, the new decision in Johnson 2010 not only overturned the case law regarding his assault and battery, but it also applies to his resisting arrest prior. Though the sentencing court said it was relying on the residual clause to count the resisting arrest prior, Weeks still had to prove the residual clause was the “sole” clause the court relied on. That’s what Beeman required, the Court said.
But Johnson 2010 settled this. Though Massachusetts resisting arrest was divisible, one part qualifying under the elements clause and the other under the residual clause, Johnson 2010 requires the sentencing court to presume Weeks’ conviction “rested upon the least of the acts criminalized in the statute” because the government had no authorized documents to show which part his conviction was under. The residual clause was the least of the acts criminalized in the statute.
In light of Johnson 2010, which was decided just six days after Weeks’ sentencing and while his sentence was on appeal, neither Weeks’ assault and battery nor his resisting arrest priors fit under the ACCA, the Court said.
The Court explained that Beeman applies to cases in which sentences do not go to appeal. It utilized the “unique factual and legal situation” in Weeks’ case to announce the new rule for sentences that go to appeal: “a claimant who has challenged his enhanced sentence on direct appeal may point to the appellate opinion, concessions made by the parties, or legal precedent through the time of the direct appeal making it more likely than not that only the residual clause could have formed the basis for his ACCA enhancement.”
Accordingly, the Court reversed the district court’s dismissal of Weeks’ motion and remanded for resentencing without the ACCA penalty. See: Weeks v. United States, 930 F.3d 1263 (11th Cir. 2019).
Writer’s note: The Court did not apply Johnson 2010 to Weeks’ § 2255 motion. It mentioned that case to show that while on appeal, Weeks’ sentence was favorably affected by the decision. The rule in the Eleventh Circuit is that no Supreme Court case can apply retroactively in a second or successive § 2255 proceeding, except the one relied on to open the door to file another motion under § 2255(h)(2). In this case, that was Johnson 2015. However, the Eleventh Circuit is one of the very few circuits with this rule, and most courts do allow other retroactively applicable cases in deciding the merits of a successive § 2255 motion.
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Related legal case
Weeks v. United States
|930 F.3d 1263 (11th Cir. 2019)
|Court of Appeals
|Appeals Court Edition