              Case: 16-15879    Date Filed: 01/28/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-15879
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:16-cv-01939-TWT,
                          1:08-cr-00403-TWT-JFK-1


DERRICK G. CARMICHAEL,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                               (January 28, 2019)

Before MARTIN, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM:

      Derrick Carmichael appeals the denial of his 28 U.S.C. § 2255 motion to

vacate his sentence. Carmichael argues that his sentence was unconstitutionally
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enhanced under the Armed Career Criminal Act (“ACCA”) residual clause, which

the Supreme Court struck down as void for vagueness in Johnson v. United States,

135 S. Ct. 2551 (2015). While this appeal by Carmichael was pending, we issued

Beeman v. United States, which set forth a § 2255 movant’s burden of proof when

seeking relief under Johnson. See 871 F.3d 1215 (11th Cir. 2017). After careful

review, we vacate and remand to the district court to apply the Beeman test in the

first instance.

                                           I.

       In 2009, Carmichael pled guilty to firearm possession by a felon in violation

of 18 U.S.C. § 922(g). He was sentenced to the mandatory minimum of fifteen

years’ imprisonment under the ACCA, which enhances the sentence of a defendant

with three or more “violent felony” or “serious drug offense” convictions. 18

U.S.C. § 924(e)(1). Carmichael’s sentence enhancement was based on three felony

convictions under Georgia’s aggravated assault statute, as well as one conviction

for cocaine possession with intent to distribute.

       At the time that Carmichael was sentenced, the ACCA defined “violent

felony” as any crime punishable by more than a year’s imprisonment that:

       (i)    has as an element the use, attempted use, or threatened use of physical

              force against the person of another; or




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      (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.

Id. § 924(e)(2)(B). The first subsection is known as the “elements clause,” while

the second contains the “enumerated offenses clause” and, in italics, the “residual

clause.” On June 26, 2015, Johnson struck down the residual clause as

unconstitutionally vague; the Supreme Court later held that Johnson was

retroactively applicable to cases on collateral review. Welch v. United States, 136

S. Ct. 1257, 1265 (2016).

      Less than a year after Johnson was decided, Carmichael filed a motion

arguing that his convictions for Georgia aggravated assault did not qualify as

violent felonies under the elements clause or the enumerated offenses clause, and

thus could not satisfy the ACCA except through the residual clause that had been

deemed unconstitutional in Johnson. The district court denied his motion, but

granted a certificate of appealability on three issues: whether the motion was time-

barred because it failed to state a Johnson claim, whether it was procedurally

defaulted, and whether the Georgia crime of aggravated assault is a violent felony

under the ACCA elements clause.




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                                                II.

       Our decision in Beeman, issued after the district court’s decision in this case,

provides a roadmap for evaluating § 2255 claims like Carmichael’s. 1 First, we

clarified that in order to state a claim under Johnson, the movant must allege that

he was unconstitutionally sentenced under the residual clause, not that he was

incorrectly sentenced under the elements or enumerated offenses clauses. Second,

we held that a Johnson claim brought before the one-year anniversary of the

Supreme Court’s Johnson decision—that is, before June 26, 2016—is timely under

28 U.S.C. § 2255(f)(3). Third, we determined that to prove a Johnson claim on the

merits, “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 his sentence.”

Beeman, 871 F.3d at 1222. “If 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,” the movant has failed to carry his burden. Id. In other words, if

“the evidence does not clearly explain what happened . . . the party with the burden

loses.” Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir.

2001).




1
  In a § 2255 proceeding, we review a district court’s legal conclusions de novo and its factual
findings for clear error. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).
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      Moreover, whether a movant was sentenced under the residual clause is an

issue of “historical fact.” Id. at 1224 n.5. Evidence of that historical fact may

include “comments or findings by the sentencing judge indicating that the residual

clause was relied on,” “statements in the [presentence investigation report],” or

“concessions by the prosecutor that those two other clauses do not apply to the

conviction in question.” Id. at 1224 n.4. A movant may also proffer as evidence

case law “holding, or otherwise making obvious, that [the predicate offense]

qualified as a violent felony only under the residual clause” at the time of his

sentencing. Id. at 1224. For instance, if a case predating the movant’s sentencing

held that one of his predicate offenses could not satisfy the ACCA elements or

enumerated offenses clauses, it would be evidence that—by process of

elimination—the sentencing court must have relied on the residual clause.

Because the inquiry concerns the “historical fact” of whether the movant was

actually sentenced under the residual clause, case law handed down after

sentencing “casts very little light” on the issue. Id. at 1224 n.5.

                                          III.

      The Government now concedes, and we agree, that Carmichael has raised a

timely Johnson claim. Carmichael’s § 2255 motion, which he filed before the

Johnson decision’s one-year anniversary, stated a Johnson claim using the same

language we deemed sufficient in Beeman. The Government has also agreed to


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waive its procedural default defense. See In re Jackson, 826 F.3d 1343, 1348 (11th

Cir. 2016) (“[T]he procedural-default rule is not jurisdictional, but is an affirmative

defense that is subject to waiver by the government.” (citation omitted)).

      The sole issue on appeal is whether Carmichael was, as a matter of historical

fact, sentenced under the unconstitutional residual clause. Because the district

court had no opportunity to apply the new standard articulated in Beeman, the

record is not fully developed on this point. And we cannot say, as we did in

Beeman, that Carmichael has “pointed to no precedent in 2009” that could have led

a court to sentence him only under the residual clause. Beeman, 871 F.3d at 1224.

Accordingly, we find that a remand is appropriate. See Whatley v. Warden, Ware

State Prison, 802 F.3d 1205, 1213 (11th Cir. 2015) (“[W]e are a court of appeals.

We do not make fact findings. We review them for clear error.”). On remand, the

district court should consider in the first instance whether Carmichael can show, as

a historical fact, that he was more likely than not sentenced under the residual

clause.



VACATED AND REMANDED.




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