          Case: 18-10044   Date Filed: 05/14/2020   Page: 1 of 10



                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10044
                      ________________________

   D.C. Docket Nos. 6:16-cv-01132-GKS-DCI; 6:12-cr-00312-GKS-DAB-1



ANTHONY MARVIN BRUTEN,

                                                     Petitioner - Appellant


                                 versus


UNITED STATES OF AMERICA,

                                                     Respondent - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (May 14, 2020)
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Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL, ∗ District Judge.

PER CURIAM:

       Anthony Marvin Bruten, a federal prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. This Court granted

Bruten a certificate of appealability on one issue: whether the district court erred

in dismissing Bruten’s motion as procedurally barred by concluding that the

government could rely on prior convictions in the Presentence Investigation Report

(“PSR”) as predicate offenses under the Armed Career Criminal Act (“ACCA”),

despite the fact that neither the PSR nor the sentencing court explicitly found those

other convictions to be ACCA predicates. After careful review, with the benefit of

oral argument, and because of this Court’s decision in Tribue v. United States, 929

F.3d 1326 (11th Cir. 2019), we affirm.

                                   I.      BACKGROUND

       Bruten pled guilty pursuant to a plea agreement to possession of a firearm by

a convicted felon, in violation of 18 U.S.C. § 922(g)(1).1 The plea agreement

stated:




       ∗ Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
       1
          Because we write for the parties, who are familiar with the facts, we recount only the
facts that are necessary to understand our disposition of this appeal.

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       BRUTEN admits he has been convicted of the following felonies,
       which include three felonies that BRUTEN admits qualify him as an
       Armed Career Criminal:

               1. Sale of Cocaine, in . . . Florida . . . , on or about August 17,
                  2011;

               2. Flee or Attempt to Elude, in . . . Florida . . . , on or about
                  November 10, 2009;

               3. Sale or Possession of Cocaine with Intent to Sell within 1000
                  Feet of a School, in . . . Florida . . . ; and

               4. Aggravated Assault, in . . . Florida . . . , on or about November
                  4, 2004.

Crim. Doc. 35 at 21.2

       In preparation for sentencing, the probation office prepared a PSR. The PSR

stated that Bruten was subject to an enhanced sentence under ACCA because he

had “at least three prior convictions for a violent felony or serious drug offense, or

both, that were committed on occasions different from one another.” PSR at ¶ 23;

see 18 U.S.C. § 924(e)(1). The PSR specifically listed three qualifying

convictions: (1) aggravated assault in 2004; (2) sale/possession of cocaine within

1,000 feet of a school in 2005; and (3) fleeing and eluding in 2009. The PSR listed

(and assigned criminal history points to) several other Florida convictions in the


       2
         Citations to “Crim. Doc. #” refer to numbered entries on the district court’s docket in
Bruten’s Middle District of Florida criminal case, No. 6:12-cr-312-GKS-DAB-1. The
Presentence Investigation Report prepared in this case is cited as “PSR.”
       Citations to “Civ. Doc. #” refer to numbered entries on the district court’s docket in
Bruten’s Middle District of Florida § 2255 proceedings.

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criminal history section, including: sale/delivery of a controlled substance

(cocaine) in 1998; manufacture of cocaine in 2004; and sale of cocaine within

1,000 feet of a public park in 2009.

      Neither Bruten nor the government objected to the convictions listed in the

PSR, which the district court adopted. At sentencing, the district court found that

the ACCA enhancement applied, but did not state which of Bruten’s convictions

formed the basis of the enhancement. The district court sentenced Bruten to 180

months’ imprisonment.

      Bruten did not file a direct appeal. Rather, he filed the instant § 2255 motion

to vacate. In his motion, Bruten argued that his ACCA-enhanced sentence was

unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). ACCA

provides for an enhanced sentence if a person convicted of a § 922(g) offense

previously has been convicted of three “violent felon[ies],” “serious drug

offense[s],” or both. See 18 U.S.C. § 924(e)(1). In Johnson, the Supreme Court

held that one of the “violent felony” definitions, the “residual clause,” was

unconstitutionally vague in violation of due process. 135 S. Ct. at 2557. After

Johnson a violent felony is “any crime punishable by imprisonment for a term

exceeding one year” that either (1) “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), the “elements clause,” or (2) “is burglary, arson, or extortion,


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[or] involves use of explosives,” id. § 924(e)(2)(B)(ii), the “enumerated crimes

clause.” “Serious drug offense,” unaffected by Johnson, means either any offense

under the Controlled Substances Act or similar federal law or “an offense under

State law, involving manufacturing, distributing, or possessing with intent to

manufacture or distribute, a controlled substance (as defined in section 102 of the

Controlled Substances Act), for which a maximum term of imprisonment of ten

years or more is prescribed by law.” Id. § 924(e)(2)(A)(i), (ii).

      In support of his § 2255 motion Bruten argued that his convictions for

aggravated assault and fleeing and eluding no longer qualified as ACCA predicate

offenses in light of Johnson’s holding, and that without those convictions he lacked

sufficient qualifying convictions. In response, the government argued that

Bruten’s Johnson claim was subject to a procedural default because he did not

raise it on direct appeal, and he could not show cause or prejudice to overcome the

default. Bruten could not show cause, the government argued, because although

circuit precedent foreclosed his claim at the time of his direct appeal, there was no

impediment to his asserting the challenge he brought in his § 2255 motion. As to

prejudice, the government conceded that Bruten’s fleeing and eluding conviction

no longer qualified as a “violent felony,” but it argued that Bruten had at least three

qualifying convictions notwithstanding Johnson. Binding circuit precedent

established that his 2004 conviction for aggravated assault qualified as a violent


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felony under ACCA’s elements clause. See Turner v. Warden, 709 F.3d 1328,

1338 (11th Cir. 2013), abrogated on other grounds by Johnson, 135 S. Ct. 2551.

And Bruten had four prior convictions for serious drug offenses, including the

1997 sale/delivery of cocaine, 2004 manufacture of cocaine, 2005 sale of cocaine

within 1,000 feet of a school, and 2008 sale of cocaine within 1,000 feet of a public

park.

        The district court agreed with the government’s assessment of prejudice3 and

denied Bruten’s § 2255 motion. The district court found that Bruten “has five prior

convictions for violent felonies or serious drug offenses that still qualify under the

ACCA,” including the four drug convictions and the aggravated assault conviction.

Civ. Doc. 19 at 4-5. Bruten has appealed.

                           II.    STANDARD OF REVIEW

        When reviewing the district court’s ruling on a § 2255 motion, we review

findings of fact for clear error and questions of law de novo. Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2009). We may affirm on any ground

supported by the record. Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir.

2016) (internal quotation marks and citation omitted).

                                   III.   DISCUSSION



        3
         The district court did not address whether Bruten had demonstrated cause to overcome
the procedural default.

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       Bruten argues that the district court erred in concluding that his claim was

procedurally defaulted. He argues that the district court was permitted to rely only

on the convictions listed in his PSR as ACCA predicates to determine his

eligibility for relief and that, now that one of the three listed ACCA predicates does

not qualify as a violent felony, he must be resentenced.4 He argues that the district

court’s reliance on other prior convictions runs afoul of United States v. Canty, in

which this Court held that the government’s “fail[ure] to voice any objection that

the sentencing court had not made any findings as to which of [the defendant’s]

convictions were predicates for the ACCA enhancement” made “further findings

. . . inappropriate.” 570 F.3d 1251, 1257 (11th Cir. 2009).

       After this case was fully briefed, but before we held oral argument, this

Court rejected the theory Bruten advances. See Tribue, 929 F.3d at 1331-34. In

Tribue, as here, the § 2255 movant’s PSR designated him as an armed career

criminal under ACCA and specifically listed three predicates, one of which was

fleeing and eluding under Florida law. Id. at 1328. The PSR also included a

criminal history section, which listed “several additional prior Florida

convictions.” Id. Tribue represented to the district court that he had no objections

to the PSR and, as here, the district court did not state which of Tribue’s prior


       4
         Bruten also argues that he can demonstrate cause to overcome the procedural default.
We need not address his argument, however, because under Tribue Bruten cannot establish
prejudice.

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convictions it relied upon when it imposed the ACCA enhancement. See id. at

1328-29. Tribue, like Bruten, did not file a direct appeal, but filed a § 2255 motion

challenging his ACCA-enhanced sentence after the Supreme Court’s decision in

Johnson, arguing that his fleeing and eluding conviction no longer qualified as an

ACCA predicate and therefore that he lacked the requisite three predicates. See id.

at 1329-30. Tribue, citing Canty, 570 F.3d at 1256, “asserted that the government

effectively waived reliance on the use of any other prior convictions listed in the

PS[R],” because:

      (1) The PS[R] identified only three specific convictions as ACCA
      predicates, (2) at sentencing, the government did not object to the PS[R]
      or state its reliance on any of Tribue’s other prior convictions as ACCA
      predicates, and (3) the sentencing court adopted the PS[R] without
      change.

Id. at 1330. The district court rejected Tribue’s argument and relied on other prior

convictions to sustain his ACCA-enhanced sentence.

      This Court affirmed. We held that a § 2255 movant cannot satisfy his

burden to demonstrate entitlement to relief under Johnson when he has three

qualifying convictions notwithstanding Johnson and that the government can rely

on (and present evidence about) those additional prior convictions to defeat a

movant’s claim. Id. at 1331-32. We held that Canty, in which the defendant had

objected to his ACCA classification at sentencing, was materially distinguishable

and therefore did not support Tribue’s waiver argument. Id. at 1333-34; see also


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id. at 1334 (distinguishing a case similar to Canty, Bryant v. Warden, 738 F.3d

1253 (11th Cir. 2013), overruled on other grounds by McCarthan v. Dir. of

Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc)).

       Tribue is factually and legally on point with this case and therefore dictates

its outcome. Under Tribue, Bruten has not satisfied his burden to show entitlement

to relief because, notwithstanding Johnson, he has three ACCA-qualifying

convictions: aggravated assault 5 and four “serious drug offenses.” Indeed, Bruten

concedes that he has at least three qualifying offenses even after Johnson.

Bruten’s argument for relief hinges on his assertion that the government has

waived reliance on his other convictions, but Tribue rejected this theory even

though there, as here, the PSR listed three ACCA-qualifying offenses, the

government did not object to the PSR or rely on any other convictions to support

the enhancement, and the sentencing court adopted the PSR without change. See

id. at 1332.

       Bruten acknowledges Tribue’s holding but argues that his case is

distinguishable. Specifically, he contends that unlike in Tribue, he and the

government agreed in his plea agreement that he had “three felonies that . . .




       5
         Although he acknowledges that his argument is foreclosed by precedent, Bruten
challenges the district court’s determination that his aggravated assault conviction remains a
valid predicate. See Turner, 709 F.3d at 1338. Even in the absence of this precedent, we would
affirm the district court based on Bruten’s qualifying serious drug offenses.
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qualify him as an Armed Career Criminal,” Crim. Doc. 35 at 21, and that the

government is bound to this limited number. Bruten’s argument may have had

merit if his plea agreement had stated that Bruten had “only three felonies” that

qualified him as an armed career criminal, but the plea agreement was not so

limited. So, Bruten’s plea agreement does not put him on different footing than

Tribue.

      Bruten alternatively argues that Tribue was wrongly decided. But as a three-

judge panel we are bound to follow Tribue. United States v. Brown, 342 F.3d

1245, 1246 (11th Cir. 2003).

      For these reasons, the district court correctly denied Bruten’s § 2255 motion.

We therefore affirm.

      AFFIRMED.




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