               Case: 12-14989      Date Filed: 01/20/2016     Page: 1 of 42


                                                                              [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 12-14989
                             ________________________

                     D.C. Docket No. 5:09-cv-00110-WTH-PRL



DAN CARMICHAEL MCCARTHAN,


                                                                   Petitioner - Appellant,

                                          versus


WARDEN, FCC COLEMAN - MEDIUM,


                                                                  Respondent - Appellee.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________
                                 (January 20, 2016)

Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.

       *
       Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
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PER CURIAM:

      In 2003, Petitioner Dan McCarthan pled guilty to being a felon-in-

possession of a firearm.      The maximum sentence for a felon-in-possession

conviction is ten years’ imprisonment. 18 U.S.C. § 924(a)(2). But the Armed

Career Criminal Act (“ACCA”), 28 U.S.C. § 924(e), requires sentencing courts to

impose a term of imprisonment no lower than 15 years when a defendant has three

prior convictions that qualify as serious drug offenses or violent felonies under the

ACCA. 28 U.S.C. §924(e). At the time of his sentencing, McCarthan had five

prior convictions that arguably qualified him for an ACCA enhancement, including

a 1992 Florida escape conviction. So the sentencing court enhanced McCarthan’s

sentence to 211 months’ imprisonment under the ACCA.

      Rather than appeal his sentence directly, McCarthan filed an initial habeas

petition under 28 U.S.C. § 2255, collaterally attacking his sentence on grounds of

ineffective assistance of counsel. McCarthan’s habeas petition was denied, and we

subsequently denied him leave to file a second petition under § 2255.

      Then, in 2009, the Supreme Court issued its decision in Chambers v. United

States, 555 U.S. 122, 129 S. Ct. 687 (2009), concluding that at least some escape

convictions do not qualify as ACCA predicate convictions. Following the issuance

of Chambers, McCarthan filed the § 2241 habeas petition at issue here. As a

federal prisoner, McCarthan was required to meet the 28 U.S.C. § 2255(e) “savings


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clause” in order to permit the district court to entertain his § 2241 petition. The

district court determined that McCarthan failed to meet the “savings clause” and

dismissed his petition for lack of jurisdiction.

      McCarthan now appeals the district court’s order dismissing his petition.

For the reasons below, we affirm the district court’s order and likewise conclude

that the district court lacked jurisdiction to entertain McCarthan’s petition.

                                  BACKGROUND

      On April 9, 2002, McCarthan was indicted for possessing a Winchester rifle,

in violation of 18 U.S.C. § 922(g), the statute prohibiting felons from possessing

firearms. The indictment alleged that McCarthan knowingly possessed the rifle

despite the fact that he had three prior felony convictions, including a 1987

conviction in Florida for possession of cocaine with intent to sell or deliver; a 1992

conviction in Florida for escape; and a 1994 conviction in Florida for third-degree

murder. Rather than contest the charge, McCarthan entered a guilty plea on March

4, 2003.

      In general, the maximum penalty for violating the felon-in-possession statute

is ten years’ imprisonment. 18 U.S.C. § 924(a)(2). But the ACCA provides that

an individual who violates the statute and who has “three previous convictions . . .

for a violent felony or a serious drug offense, or both, committed on occasions




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different from one another” must be sentenced to at least 15-years’ imprisonment.

18 U.S.C. § 924(e)(1).

      Before McCarthan’s sentencing, a probation officer prepared a presentence

investigation report (“PSR”). The criminal-history section of the PSR listed the

three felony convictions set forth in the indictment, two 1988 felony convictions in

Georgia for possession of cocaine with intent to distribute, and convictions for

lesser offenses. Although the probation officer concluded, based on McCarthan’s

criminal history, that McCarthan was subject to an enhanced sentence under the

ACCA, the probation officer did not specify which of McCarthan’s prior felony

convictions qualified him for the penalty.

      Before his sentencing hearing, McCarthan objected to the probation officer’s

conclusion that he was subject to the ACCA, arguing that the 1992 escape

conviction in Florida was not a violent felony. In response, the probation officer

modified the PSR to say,

                    The Eleventh Circuit has held that a prior escape
             conviction, even one involving a “walkaway” from a
             non-secure facility, qualifies as a “crime of violence.”
             United States v. Gay, 251 F.3d 950 (11th Cir. 2001).
             Incidentally, every other circuit to rule on this issue has
             held that escape is a crime of violence.

The government did not object to the PSR.

      On June 4, 2003, McCarthan had his sentencing hearing.               During the

hearing, McCarthan objected to the probation officer’s calculation of his base

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offense level. McCarthan also objected to the probation officer’s addition of one

criminal-history point for a 1993 sentence for opposing an officer without

violence, but the probation officer had already corrected the PSR to remove that

point. Otherwise, McCarthan’s attorney stated that McCarthan had no further

objections to the factual allegations in the PSR or the probation officer’s

Sentencing Guidelines calculation. McCarthan’s attorney did not raise his earlier

written objection regarding the 1992 escape conviction or otherwise object to the

imposition of an ACCA enhancement.

      The sentencing judge adopted the remaining facts in the PSR, imposed an

ACCA enhancement, and sentenced McCarthan to 211 months’ imprisonment. In

imposing sentence, the district judge, like the PSR, did not expressly identify

which of McCarthan’s prior convictions qualified as predicate offenses for

purposes of the ACCA enhancement.

      McCarthan did not directly appeal his sentence. Instead, on June 7, 2004, he

filed a motion to vacate the sentence under 28 U.S.C. § 2255, alleging ineffective

assistance of counsel.1 That motion did not address the ACCA enhancement, and

the district court denied the motion on the merits on September 30, 2004. 2 The

district court and this Court then denied McCarthan’s request for a certificate of
      1
         Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By Person
In Federal Custody, McCarthan v. United States, No. 8:04-cv-1288-SDM-MSS (M.D. Fla. June
7, 2004), ECF No. 1.
       2
          Order, McCarthan v. United States, No. 8:04-cv-1288-SDM-MSS (M.D. Fla. Sept. 30,
2004), ECF No. 8
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appealability. 3 And on February 13, 2006, we denied McCarthan’s petition for

leave to file a successive § 2255 petition. 4

      After our denial of McCarthan’s 2006 petition, the Supreme Court issued

two decisions narrowing the class of crimes that qualify as violent felonies under

the ACCA. In 2008, the Supreme Court held that the New Mexico crime of

driving under the influence is not a “violent felony” under the ACCA. See Begay

v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008). A year later, the Supreme

Court held that some forms of the Illinois crime of “escape from a penal

institution” also do not qualify as violent felonies under the ACCA. See Chambers

v. United States, 555 U.S. 122, 129 S. Ct. 687 (2009).

      On March 5, 2009, McCarthan filed a § 2241 habeas petition asserting,

without explanation, that he was wrongly sentenced as an armed career criminal.

McCarthan filed an amended petition on June 19, 2009, clarifying that he believed

he was wrongly sentenced because his 1992 escape conviction was no longer a

violent felony under the Supreme Court’s retroactively applicable decisions in

Chambers and Begay.

      The government responded that the district court lacked jurisdiction to hear

McCarthan’s § 2241 petition. Observing that only petitioners who can show that

      3
         Order, McCarthan v. United States, No. 8:04-cv-1288-SDM-MSS (M.D. Fla. Jan. 11,
2005), ECF No. 18; Order, McCarthan v. United States, No. 04-16359-G (11th Cir. Apr. 12,
2005).
       4
         In re McCarthan, No. 06-10522-B (11th Cir. Feb. 13, 2006).
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the remedy provided for under § 2255 is inadequate or ineffective to test the

legality of their detention may pursue a remedy under § 2241, see 28 U.S.C. §

2255(e), the government argued that McCarthan could not meet that threshold

requirement.    Even without the escape conviction, the government reasoned,

McCarthan still had four predicate offenses for purposes of the ACCA—the two

remaining Florida convictions and the two Georgia drug convictions. The district

court agreed that it lacked jurisdiction to entertain McCarthan’s § 2241 petition

because McCarthan had “other convictions for crimes that remain classified as

‘violent felonies’ under [the ACCA].” McCarthan now appeals that Order.

                                    ANALYSIS

      A federal prisoner seeking to collaterally attack his sentence must, in most

instances, pursue relief under 28 U.S.C. § 2255. Section 2255 grants federal

prisoners a cause of action to challenge their sentences as unconstitutional or

otherwise unlawful and delineates the procedure for adjudicating these actions. Id.

In addition, the so-called “savings clause” contained in § 2255(e) allows a federal

court to entertain a federal prisoner’s § 2241 habeas petition in the limited

circumstances where the prisoner demonstrates that the remedy in § 2255 “is

inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).

We have held that § 2255(e) imposes a jurisdictional restriction on a federal court’s

power to entertain a § 2241 petition. Williams v. Warden, Fed. Bureau of Prisons,


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713 F.3d 1332, 1337 (11th Cir. 2013), cert. denied sub nom. Williams v. Hastings,

__ U.S. __, 135 S. Ct. 52 (2014).

      As a result, McCarthan’s appeal of the district court’s denial of his § 2241

habeas petition potentially presents two issues: (1) whether jurisdiction under §

2255(e) exists to entertain McCarthan’s § 2241 claim; and (2) if so, whether

McCarthan is entitled to relief on the merits of his § 2241 petition. Because we

conclude that the district court lacked jurisdiction to hear McCarthan’s § 2241

petition, we do not reach the merits of McCarthan’s petition.

I.    The Savings Clause and Section 2241

      Federal courts, of course, are courts of limited jurisdiction, “possess[ing]

only that power authorized by Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 1675 (1994). For this

reason, before turning to the merits of any dispute, a federal court must determine

whether Congress or the Constitution empowered it to hear the matter at all. See,

e.g., Williams, 713 F.3d at 1337.

      In the realm of habeas, Congress has erected a substantial limitation on the

power of federal courts to entertain federal prisoners’ § 2241 petitions. As we

have noted, the § 2255 savings clause strips federal courts of subject-matter

jurisdiction to entertain a federal prisoner’s § 2241 habeas petition, unless the

prisoner demonstrates that the remedy in § 2255 “is inadequate or ineffective to


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test the legality of his detention.” 28 U.S.C. § 2255(e); Williams, 713 F.3d at

1340. In other words, whether a federal prisoner pursuing a § 2241 petition meets

the § 2255(e) savings clause and thereby opens the portal to § 2241 merits

consideration is a threshold issue that must be resolved before turning to the merits

of a § 2241 petition.

      Notably, § 2255(h) prohibits federal prisoners from filing second or

successive § 2255 petitions unless there is newly discovered evidence or a new rule

of constitutional law made retroactive to cases on collateral review by the Supreme

Court. 28 U.S.C. § 2255(h). In the past, petitioners subject to § 2255(h)’s bar

argued that they met the savings clause because § 2255(h), in and of itself,

rendered § 2255 inadequate or ineffective to test the legality of their detention. We

rejected that proposition. Gilbert v. United States, 640 F.3d 1293, 1307-09 (11th

Cir. 2011) (en banc).    In Gilbert, we held that “the savings clause does not

authorize a federal prisoner to bring in a § 2241 petition a claim, which would

otherwise be barred by § 2255(h), that the sentencing guidelines were misapplied

in a way that resulted in a longer sentence not exceeding the statutory maximum.”

Id. at 1323.

      But that does not mean that a federal prisoner sentenced to a term of

imprisonment longer than the statutory maximum under the ACCA may not pursue

a § 2241 petition, even though he is subject to § 2255(h)’s bar. Following our


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decision in Gilbert, we formulated a five-part test that a petitioner like McCarthan

must satisfy in order to meet the savings clause and endow a federal court with

jurisdiction to entertain his § 2241 petition. See Bryant v. Warden, FCC Coleman-

Medium, 738 F.3d 1253, 1274 (11th Cir. 2013).            The Bryant test requires

McCarthan to show all of the following:

            (1)    throughout his sentencing, direct appeal, and first §
                   2255 proceeding, our Circuit’s binding precedent
                   had specifically addressed [his] distinct prior state
                   conviction that triggered § 924(e) and had squarely
                   foreclosed [his] § 924(e) claim that he was
                   erroneously sentenced above the 10-year statutory
                   maximum penalty in § 924(a);

            (2)    subsequent to his first § 2255 proceeding, [a]
                   Supreme Court[] decision . . . , as extended by this
                   Court to [his] distinct prior conviction, overturned
                   our Circuit precedent that had squarely foreclosed
                   [his] § 924(e) claim;

            (3)    the new rule announced in [the Supreme Court
                   case] applies retroactively on collateral review;

            (4)    as a result of [the Supreme Court case’s] new rule
                   being retroactive, [his] current sentence exceeds
                   the 10-year statutory maximum authorized by
                   Congress in § 924(a); and

            (5)    the savings clause in § 2255(e) reaches his pure §
                   924(e)[] error claim of illegal detention above the
                   statutory maximum penalty in § 924(a).

Id. The purpose of this test is to prevent us from entertaining § 2241 petitions by

federal prisoners who could have at least theoretically successfully challenged an


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ACCA enhancement in an earlier proceeding—that is, to ensure that no other

aspect of § 2255 could have been “[]adequate or []effective to test the legality of

his detention.” 28 U.S.C. § 2255(e).

II.    McCarthan Cannot Access the Savings Clause

       As an initial matter, it is immediately obvious that McCarthan’s claim

satisfies parts two, three, and five of the Bryant test. Part two of the Bryant test

requires McCarthan to demonstrate that, “subsequent to his first § 2255

proceeding, [a] Supreme Court[] decision . . . , as extended by this Court to [his]

distinct prior conviction, overturned our Circuit precedent that had squarely

foreclosed [his] § 924(e) claim.” Id. Here, it is undisputed that following the final

disposition of McCarthan’s initial § 2255 petition in 2005, the Supreme Court’s

2008 decision in Begay and 2009 decision in Chambers overturned our decision in

United States v. Gay, 253 F.3d 950 (11th Cir. 2001), where we classified

walkaway escape as a violent felony. Following the Supreme Court’s decisions in

Begay and Chambers, we issued United States v. Lee, 586 F.3d 859, 874–75 (11th

Cir. 2009), interpreting Begay and Chambers to include as non-qualifying

predicate convictions Florida escape convictions. So McCarthan meets step two of

the Bryant test. 5


       5
          Our colleague construes the first step of Bryant as requiring both (1) that the habeas
petitioner demonstrate that a successful objection to the particular predicate conviction used to
attempt to open the § 2255(e) portal was squarely foreclosed by our Circuit’s binding precedent
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       McCarthan also satisfies step three of Bryant. This step requires petitioners

to demonstrate that a circuit-busting Supreme Court rule “applies retroactively on

collateral review.” Bryant, 738 F.3d at 1274. We have already held that Begay

applies retroactively on collateral review. Id. at 1276-78. We now conclude that

Chambers applies retroactively for the same reasons as Begay. As the Supreme

Court has explained, new substantive rules, including “decisions that narrow the

scope of a criminal statute by interpreting its terms,” generally “apply retroactively

because they necessarily carry a significant risk that a defendant stands convicted

of an act that the law does not make criminal or faces a punishment that the law

cannot impose upon him.” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct.

2519, 2522-23 (2004).

       Here, the Supreme Court’s circuit-busting rule in Chambers is substantive

for the same reasons we held that Begay is substantive in Bryant. See 738 F.3d at

1276-78. Namely, Chambers, like Begay, narrows the scope of 28 U.S.C. § 924(e)


throughout sentencing, direct appeal, and the first § 2255 proceeding; and (2) that fewer than
three qualifying predicate convictions remain when we discount the squarely foreclosed
predicate conviction. See Concurrence at 41. We see two problems with this construction of
Bryant’s first step. First, it elevates a restrictive phrase whose role it is simply to identify which
“distinct prior state conviction” “binding precedent had specifically addressed,” to an
independent requirement of the first step of Bryant. But step one of Bryant requires a petitioner
to show only that “binding precedent” did two things—that “binding precedent had specifically
addressed . . . and had squarely foreclosed.” (emphasis added). That is why both verbal phrases
in the sentence have the same subject: “binding precedent.” Step one does not impose any
requirement regarding the number of qualifying predicate convictions. That is the job of the
fourth step of Bryant—which brings us to our second point: as our colleague appears to
acknowledge, see Concurrence at 38 n.1, his proposed reading of step one renders Bryant’s
fourth step entirely redundant and unnecessary. See infra at Section II.B.1.
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by interpreting the term “violent felony.” See Chambers, 555 U.S. at 127-30, 129

S. Ct. at 691-93.     And, as with Begay, “significant risk” exists that some

defendants “who were sentenced before [Chambers] have erroneously received the

increased penalties under § 924(e) and now are serving prison terms above the

otherwise applicable statutory maximum of 10 years.” Id. For these reasons,

Chambers, like Begay, is a new substantive rule and applies retroactively on

collateral review. McCarthan therefore meets Bryant step three.

      As for Bryant step five, McCarthan satisfies that as well. Under step five, a

petitioner must demonstrate that “the savings clause in § 2255(e) reaches his pure §

924(e)[] error claim of illegal detention above the statutory maximum penalty in §

924(a).” Bryant, 738 F.3d at 1274. Here, Bryant itself dictates that the savings

clause reaches McCarthan’s claim of “pure § 924(e)-Begay claim of illegal

detention above the statutory maximum penalty in § 924(a).” Id. at 1281-84.

Thus, McCarthan meets Bryant step five.

      Consequently, only Bryant steps one and four are at issue here. For the

reasons below, we conclude that McCarthan meets step one but not step four.

      A. McCarthan Satisfies Bryant Step One

      At Bryant step one, McCarthan must show that throughout his sentencing,

direct appeal, and first § 2255 proceeding, our Circuit’s binding precedent squarely

foreclosed him from challenging the ACCA-predicate status of his escape


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conviction.    See id. at 1274.   Here, McCarthan argues that throughout his

sentencing, direct appeal, and first § 2255 proceeding, he was squarely foreclosed

from challenging his Florida escape conviction by our decision in United States v.

Gay, 251 F.3d 950 (11th Cir. 2001) (per curiam). We agree.

      In Gay, we held that escape convictions, including those for walking away

from an unsecured correctional facility, categorically qualified as “crime[s] of

violence” for the purpose of sentencing defendants as career offenders under the

Sentencing Guidelines. Gay, 251 F.3d at 954. Then, in March 2004, we held that

the definition of a “crime of violence” under the Sentencing Guidelines is

“virtually identical” to the definition of a “violent felony” under the ACCA.

United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004). The clear and

ineluctable import of our decisions in Gay and Rainey is that McCarthan was

squarely foreclosed from arguing that his escape conviction was not a “violent

felony” under the ACCA when he filed his initial § 2255 petition in June 2004.

Indeed, following the final disposition of McCarthan’s initial § 2255 petition, we

cursorily recognized the obvious, observing that Gay memorialized “our rule” “that

escape,” including Florida escape, “is categorically a violent felony” under the

ACCA. United States v. Taylor, 489 F.3d 1112, 1114, 1114 n.3 (11th Cir. 2007)

cert. granted, judgment vacated, 555 U.S. 1132, 129 S. Ct. 990 (2009).




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      The government disagrees, contending that Gay did not squarely foreclose

McCarthan from challenging his escape conviction in his initial habeas petition for

two reasons. First, Gay held that escape was a “crime of violence” under the

Sentencing Guidelines, not a “violent felony” under the ACCA. 251 F.3d at 954.

Second, the escape conviction in Gay was issued under Georgia’s escape statute,

not Florida’s escape statute. Id. at 952. The government argues that, for these

reasons, McCarthan was not squarely foreclosed from challenging his Florida

escape conviction when he filed his § 2255 petition in June 2004. We are not

persuaded.

             1.    Gay’s Categorical Holding Applied With Equal Force To
                   Sentencing Guidelines Cases and ACCA Cases

      The government’s attempt to distinguish Gay on the grounds that it

addressed the nature of escape convictions under the Sentencing Guidelines, but

not the ACCA, is without merit. As we have often reiterated, the definitions of a

“crime of violence” under the Sentencing Guidelines and of a “violent felony”

under the ACCA are “virtually identical.” See, e.g., United States v. Archer, 531

F.3d 1347, 1352 (11th Cir. 2008); Rainey, 362 F.3d at 735. Crimes that “involve[]

conduct that presents a serious potential risk of physical injury to another” qualify

as both “crime[s] of violence” under the Sentencing Guidelines and “violent

felon[ies]” under the ACCA. Compare U.S. SENTENCING GUIDELINES MANUAL §

4B1.2(a)(2) (U.S. SENTENCING COMM’N 2003) (conviction is a crime of violence if
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it “otherwise involves conduct that presents a serious potential risk of physical

injury to another”), with 18 U.S.C. § 924(e)(2)(B)(ii) (conviction is a violent

felony if it “otherwise involves conduct that presents a serious potential risk of

physical injury to another”). For this reason, we apply decisions on whether a

crime presents the requisite potential risk of physical injury to qualify as a “crime

of violence” under the Sentencing Guidelines in subsequent cases on a crime’s

status as a “violent felony” under the ACCA, and vice versa. Gilbert v. United

States, 640 F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc); Turner v. Warden

Coleman FCI (Medium), 709 F.3d 1328, 1335 n.4 (11th Cir.), cert. denied sub

nom. Turner v. Pastrana, __ U.S. __, 133 S. Ct. 2873 (2013), abrogated on other

grounds by Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015), and

United States v. Hill, 799 F.3d 1318 (11th Cir. 2015).

      In Gay, we categorically classified “escape” as a “crime of violence” under

the Sentencing Guidelines. 251 F.3d at 953-55. In reaching this conclusion, we

held that escape “present[s] the potential risk of violence” to qualify as a crime of

violence—that is, a serious potential risk of physical injury—“even when it

involves a ‘walk-away’ from unsecured correctional facilities.” Id. at 955. We

also explicitly agreed with out sister circuits’ decisions holding that the crime of

escape categorically “presents a serious potential risk of physical injury.” Id. at

953-55.   As a result of our holding in Gay, escape convictions necessarily


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categorically qualified as both crimes of violence under the Sentencing Guidelines

and violent felonies under the ACCA. See U.S. SENTENCING GUIDELINES MANUAL

§ 4B1.2(a)(2) (U.S. SENTENCING COMM’N; 18 U.S.C. § 924(e)(2)(B)(ii). Indeed,

we later expressly recognized as much. See Taylor, 489 F.3d at 1114 n.3. As a

result, we cannot agree with the government’s contention that Gay did not squarely

foreclose McCarthan from challenging his escape conviction because Gay was a

Sentencing Guidelines case. Gay’s preclusive effect applied equally in ACCA

cases.

                2.     Gay’s Categorical Holding Applied With Equal Force To
                       Escape Convictions Under Georgia and Florida Law

         The government’s attempt to distinguish Gay on the grounds that it involved

a Georgia escape statute6 rather than the Florida escape statute under which

         6
         In Gay, the petitioner was convicted under the Georgia escape statute, which
provided that a person is guilty of escape when she or he:

         (1) Having been convicted of a felony or misdemeanor or of the violation of a
         municipal ordinance, intentionally escapes from lawful custody or from any place
         of lawful confinement;

         (2) Being in lawful custody or lawful confinement prior to conviction,
         intentionally escapes from such custody or confinement;

         (3) Having been adjudicated of a delinquent or unruly act or a juvenile traffic
         offense, intentionally escapes from lawful custody or from any place of lawful
         confinement;

         (4) Being in lawful custody or lawful confinement prior to adjudication,
         intentionally escapes from such custody or confinement; or

         (5) Intentionally fails to return as instructed to lawful custody or lawful
         confinement or to any residential facility operated by the Georgia Department of
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McCarthan was convicted7 is also unpersuasive. In most § 2241 cases, petitioners

argue that they were squarely foreclosed from attacking a conviction by our

(subsequently overturned) decision on the ACCA status of convictions issued

under the same statute the petitioner was convicted under. See, e.g., Mackey v.

Warden, FCC Coleman-Medium, 739 F.3d 657, 662 (11th Cir. 2014); Bryant, 738

F.3d at 1274-75. The government would have us limit access to the savings clause



       Corrections after having been released on the condition that he or she will so
       return; provided, however, such person shall be allowed a grace period of eight
       hours from the exact time specified for return if such person can prove he or she
       did not intentionally fail to return.

GA. CODE ANN. § 16-10-52(a) (1981–2000); see Gay, 251 F.3d at 952.
       7
         The PSR does not specify which Florida statute formed the basis of McCarthan’s escape
conviction, but, at the time of his conviction, Florida’s escape statute provided:

       Any prisoner confined in any prison, jail, road camp, or other penal institution,
       state, county, or municipal, working upon public roads, or being transported to or
       from a placement of confinement who escapes or attempts to escape from such
       confinement shall be guilty of a felony of the second degree.

K.A.N. v. State, 582 So. 2d 57, 59 n.2 (Fla. Dist. Ct. App. 1991) (quoting FLA. STAT. § 944.40
(1989)). Florida law also criminalizes “[t]he willful failure of an inmate to remain within the
extended limits of his or her confinement or to return within the time prescribed to the place of
confinement designated by the department” as a form of “escape.” FLA. STAT. § 945.091(4).

       The PSR’s description of McCarthan’s Florida escape conviction provides as follows:

       According to court records, on February 14, 1988, the defendant signed out for
       work from the Tampa Community Corrections Center with a return time of 1:30
       a.m. on February 15, 1998. He failed to return to [sic] by 1:30 a.m., as required.
       The defendant returned to the center at 12:58 p.m. on February 15, 1998. The
       escape report was canceled. At 3:30 p.m. on February 15, 1988, the defendant
       left the center without permission, and an escape report was again initiated.

From this description, we cannot tell whether McCarthan was convicted under Fla. Stat. § 944.40
or Fla. Stat. § 945.091(4).
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to those types of cases. In other words, the government contends that a petitioner

cannot succeed at Bryant step one unless he can show that we previously addressed

the ACCA status of convictions under the very same statute as the petitioner’s

challenged conviction. But our precedent compels us to reject the government’s

form-over-substance approach to the squarely foreclosed inquiry.

      In Williams v. Warden, Federal Bureau of Prisons, and Bryant, we

explained that a challenge is squarely foreclosed when a § 2241 petitioner had no

“genuine opportunity” to raise it due to the effect of binding Circuit precedent, and

that a challenge is squarely foreclosed if our Court would have been “unwilling to

listen to [it].” Williams, 713 F.3d 1332, 1343-44 (11th Cir. 2013) cert. denied sub

nom. Williams v. Hastings, __ U.S. __, 135 S. Ct. 52 (2014); Bryant, 738 F.3d at

1275. Gay left McCarthan “no genuine opportunity” to raise a challenge to his

escape conviction, and we would have been “unwilling to listen” to any such

challenge, thereby foreclosing any challenge to his escape conviction.

       In Gay, as we have mentioned, we categorically classified “escape” as a

crime that presents “serious potential risk of physical injury to another.” See 251

F.3d at 953-55. Nowhere in Gay did we limit our holding to Georgia escape

convictions.     Instead, we surveyed our sister circuits’ decisions on escape

convictions obtained under other states’ statutes and concluded that “a prior escape

conviction,” not merely a prior Georgia escape conviction, categorically “qualifies


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as a ‘crime of violence,’” “even when it involves a ‘walk-away’ from unsecured

correctional facilities.” Id. Indeed, in the interim between Gay and Chambers, we

held that Gay’s holding precluded a petitioner from challenging the ACCA status

of a Florida escape conviction based on “our . . . conclusion in Gay that escape is

categorically a violent felony.” Taylor, 489 F.3d at 1114 n.3 (emphasis added).

      After Gay, then, even we concluded that petitioners were squarely

foreclosed from challenging the ACCA status of escape convictions, regardless of

which state’s statute a petitioner was convicted under.          Following Gay’s

categorical holding, McCarthan had no genuine opportunity to challenge the

ACCA status of his escape conviction, and, if he had raised such a challenge on

appeal, we would have been unwilling to listen to it. For those reasons alone,

McCarthan meets Bryant step one.

      We also note, however, that it would be particularly incongruous to hold

otherwise in this case. As described above, McCarthan initially objected to the

PSR, arguing that his escape conviction was not an ACCA-qualifying offense. In

response, the probation officer filed an addendum to the PSR, responding,

             The Eleventh Circuit has held that a prior escape conviction,
      even one involving a “walkaway” from a non-secure facility, qualifies
      as a “crime of violence.” United States v. Gay, 251 F.3d 950 (11th
      Cir. 2001).

The government did not object to the PSR. The Court subsequently adopted all of

the factual statements in the PSR. And, following McCarthan’s initial § 2255

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petition, we issued our decision in Taylor, citing nothing other than Gay in support

of the proposition that a petitioner was categorically foreclosed from challenging

the ACCA status of his Florida escape conviction. Taylor, 489 F.3d at 1114 n.3.

In these circumstances, it would be it would be uniquely unfair for us to now hold

that Gay did not, in fact, squarely foreclose McCarthan from challenging his

escape conviction.

      B. McCarthan Does Not Meet Bryant Step Four

      At step four, McCarthan must demonstrate that, following the Supreme

Court’s decision rendering his squarely foreclosed conviction invalid, his “current

sentence exceeds the 10-year statutory maximum authorized by Congress in §

924(a).” Bryant, 738 F.3d at 1274. Whether a prisoner may bring a 28 U.S.C. §

2241 petition under the savings clause of § 2255(e) and, by extension, whether he

meets Bryant step four, is a question of law we review de novo. Id. at 1262.

             1. The Difference Between Bryant Step Four And The Merits
                Analysis Of A § 2241 Petition

      Before we analyze whether McCarthan has met Bryant step four, we pause

to address the operation of this step. The Bryant test is a jurisdictional test, not a

merits test: if a petitioner meets the Bryant test, he establishes jurisdiction under

the savings clause, and a federal court is empowered to entertain his § 2241

petition; then, and only then, does a federal court turn to the merits of a § 2241

petition. See Williams v. Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337

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(11th Cir. 2013), cert. denied sub nom. Williams v. Hastings, __ U.S. __, 135 S. Ct.

52 (2014) (holding that § 2255(e) is a subject-matter jurisdictional limitation on the

power of federal courts to entertain a § 2241 petition); Bryant, 713 F.3d at 1262

(“[W]hether the savings clause in § 2255(e) may open the portal to a § 2241

petition is a ‘threshold’ jurisdictional issue that must be decided before delving

into the merits of the petitioner's claim and the applicable defenses.”).

       The fourth prong of the Bryant test requires a prisoner to show that he is not

eligible for an ACCA enhancement by demonstrating that he has two or fewer

convictions supporting his ACCA enhancement. See Bryant, 738 F.3d at 1279. At

first glance, that might appear to be precisely the same determination that we must

make on the merits of a § 2241 petition. But, in fact, the language of the savings

clause dictates a distinction between our analysis at step four of the Bryant test and

our merits determination of a § 2241 petition. Specifically, our jurisdictional and

merits analyses differ with respect to how we treat certain types of predicate

convictions and the related issue of procedural default. 8


       8
          Predicate convictions include (1) a petitioner’s prior convictions that the sentencing
court relied upon in imposing the petitioner’s ACCA enhancement; and (2) convictions that the
government argued should count as ACCA predicate convictions and for which the government
properly preserved an objection to the sentencing court’s failure to identify them as such. The
government bears the burden of objecting to a district court’s decision not to rely on certain of a
defendant’s ACCA-qualifying convictions at sentencing to impose an ACCA enhancement.
United States v. Petite, 703 F.3d 1290, 1292 n.2 (11th Cir.) cert. denied, __ U.S. __, 134 S. Ct.
182 (2013). If the government fails to object to the district court’s decision to rely on fewer than
all ACCA-qualifying convictions, it waives any argument that a sentencing court’s imposition of
an ACCA enhancement is justified on the basis of an ACCA-qualifying conviction that the
                                                22
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       In general, a § 2241 petitioner’s ACCA enhancement may be based on two

types of predicate convictions: valid predicate convictions and invalid predicate

convictions. Valid predicate convictions are those convictions that qualified as

ACCA predicate convictions at the time of the petitioner’s sentencing and that

remain ACCA-qualifying convictions at the time of habeas review.                           Invalid

predicate convictions, on the other hand, are convictions that do not qualify as

ACCA predicate convictions at the time of habeas review.

       Invalid predicate convictions fall into two camps. In one camp are invalid

predicate convictions that a federal prisoner could not have challenged in his initial

§ 2255 petition because any challenge was squarely foreclosed by binding Circuit

precedent that the Supreme Court only subsequently overturned (“squarely

foreclosed convictions”). In the other camp are invalid predicate convictions that

a defendant could have, but failed to, challenge earlier (“erroneously counted

convictions”).




district court could have, but did not, rely on at sentencing. Id. In other words, the government
may not substitute a new predicate offense for an invalid predicate offense for the first time on
appeal where it failed to object to the sentencing court’s decision not to rely on the new predicate
offense at sentencing. Id. Similarly, we will not permit the government to swap out such
unidentified ACCA predicate offenses in a petitioner’s collateral attack on his ACCA
enhancement. Bryant, 738 F.3d at 1279. Where, however, the government properly preserves an
objection to a sentencing court’s failure to identify a defendant’s additional ACCA-qualifying
conviction in imposing an ACCA enhancement, the government may rely on the unidentified
ACCA conviction in both a § 2251 petition and in a § 2241 petition, including at both the
jurisdictional and merits inquiries in a § 2241 petition.
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      We treat valid predicate convictions identically at Bryant step four and on

the merits. At both Bryant step four and on the merits of a § 2241 petition, we

must determine whether a federal prisoner’s ACCA enhancement is supported by

three ACCA predicate offenses.       Bryant, 638 F.3d at 1274, 1278-79.         Valid

predicate convictions that remain valid, of course, are tallied towards the three

predicate offenses at both Bryant step four and on the merits. See id.

      However, we treat squarely foreclosed convictions and erroneously counted

convictions differently at Bryant step four and at the merits stage. On the merits, it

is well established that squarely foreclosed and erroneously counted convictions

will count against a petitioner under the procedural-default rule, unless the

government waives the affirmative defense or the petitioner can demonstrate actual

innocence or cause and prejudice. Sawyer v. Holder, 326 F.3d 1363, 1366 (11th

Cir. 2003) (applying the procedural default rule on the merits of a § 2241 petition).

But before we get to the merits analysis, we do not address procedural-default

arguments because procedural default is not a jurisdictional bar to exercise of §

2241 jurisdiction, but an affirmative defense that the government may raise to the

merits of a petitioner’s habeas claim; and “whether the savings clause in § 2255(e)

may open the portal to a § 2241 petition is a ‘threshold’ jurisdictional issue that

must be decided before delving into the merits of the petitioner’s claim and the

applicable defenses,” including the affirmative defense of procedural default.


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Bryant, 738 F.3d at 1262. Moreover, the savings clause itself precludes us from

addressing procedural default at the jurisdictional stage by specifying that a

petitioner may access § 2241 regardless of whether he has “failed to apply for

relief” or whether he has been “denied . . . relief” under § 2255. 28 U.S.C. §

2255(e); see Bryant, 738 F.3d at 1262. Instead, we look to the language of the

savings clause to determine whether to tally squarely foreclosed and erroneously

counted convictions against a petitioner at Bryant step four.

      The language of § 2255(e) dictates that we will not tally squarely foreclosed

and erroneously counted convictions against a § 2241 petitioner at Bryant step four

when a timely challenge to those convictions could not have resulted in a

determination that the ACCA enhancement was inapplicable. When, at the time of

an initial § 2255 petition, a petitioner has two or fewer valid predicate convictions

and one or more squarely foreclosed convictions—the combination of which totals

at least three, he would still be subject to an ACCA enhancement, even if he timely

challenged any squarely foreclosed and erroneously counted convictions in his

initial § 2255 petition. Binding Circuit precedent would require the habeas court to

tally the petitioner’s valid predicate convictions and squarely foreclosed

convictions against him, adding up to at least three ACCA predicate offenses. As a

result, the petitioner could not have obtained relief from his ACCA enhancement,

even if the erroneously counted convictions were not tallied against him. In these


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cases, the remedy in § 2255 is “inadequate or ineffective to test the legality” of the

petitioner’s ACCA enhancement at the time of his initial § 2255 petition.9 28

U.S.C. § 2255(e). As a result, we will not tally a petitioner’s erroneously counted

convictions against him at Bryant step four in these cases.10


       9
          For these same reasons, to the extent that our colleague’s Concurrence can be read to
suggest that McCarthan must show under Bryant step one that both his escape conviction and his
erroneously counted convictions were squarely foreclosed, such a reading conflicts with the
language of § 2255(e) requiring only that a petitioner demonstrate that the “remedy by motion”
is “inadequate or ineffective to test the legality of his detention.” And it is only within the
context of that statutory language that the Bryant test exists. In other words, the Bryant test is
not some independent test that a petitioner must satisfy in addition to the requirement of §
2255(e) to show that the “remedy by motion” is “inadequate or ineffective to test the legality of
[the petitioner’s] detention; rather, the purpose of each step of Bryant is to help us to determine
when the “remedy by motion” is “inadequate or ineffective to test the legality of [the
petitioner’s] detention.” See Bryant, 783 F.3d at 1274 (“To show his prior § 2255 motion was
‘inadequate or ineffective to test the legality of his detention,’ Bryant must establish [the five
Bryant factors].”). In turn, the “remedy by motion” is “inadequate or ineffective to test the
legality of [the petitioner’s] detention” when the sum of validly counted convictions and squarely
foreclosed convictions totals at least three, regardless of how many erroneously counted
convictions the petitioner may also have. Even if he successfully challenged all erroneously
counted convictions, he would still have three convictions (valid and subsequently squarely
foreclosed) and not be entitled to relief at the time of his first petition. As a result, it is the
squarely foreclosed conviction—and only that conviction—that renders the “remedy by motion”
“inadequate or ineffective to test the legality of [the petitioner’s] detention,” and thus, that
“trigger[s] § 924(e)” for purposes of § 2255(e).
       10
           In cases where a petitioner has both (1) a mix of squarely foreclosed and valid
predicate convictions made up of one or more squarely foreclosed convictions and two or fewer
valid predicate convictions, totaling at least three, and (2) three or more erroneously counted
convictions, there may be a temptation to conclude that a petitioner’s procedural default on the
erroneously counted convictions precludes him from succeeding on Bryant step four. For
instance, a court might be tempted to conclude that, regardless of whether the petitioner
successfully challenges his squarely foreclosed conviction(s), he still had three erroneously
counted convictions that he failed to challenge in his initial § 2255 petition. But, again,
procedural default is an affirmative defense that the government may raise to the merits of a
petitioner’s habeas claim, not a bar to the exercise of § 2241 jurisdiction. Bryant, 738 F. 3d at
1261-62; see supra at pp. 24-25. So we do not address procedural default at the jurisdictional
stage, including in Bryant step four. Bryant, 738 F.3d at 1261-62; see supra at pp. 24-25.
[footnote continued]


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       In sum, to survive Bryant step four, a § 2241 petitioner challenging an

ACCA enhancement must demonstrate that his eligibility for relief from the

enhancement became available only after the Supreme Court retroactively rendered

one or more of his squarely foreclosed convictions invalid. This means that, at

Bryant step four, a petitioner must (1) look at his predicate convictions (including

those the sentencing court counted in imposing an ACCA enhancement and those

the sentencing court did not count but for which the government preserved an

argument that the sentencing court should have counted in imposing the

enhancement); (2) remove erroneously counted convictions and show that there

were still at least three remaining convictions at the time of his initial § 2255

petition; and (3) show that fewer than three valid ACCA predicate convictions

remain once all squarely foreclosed convictions are removed.




       Instead, we must determine whether the petitioner could have effectively challenged his
ACCA enhancement in an initial habeas petition. 28 U.S.C. § 2255(e). In any and every case
where a petitioner has two or fewer valid predicate convictions and one or more squarely
foreclosed convictions at the time of his initial habeas appeal, totaling at least three convictions,
the answer will be no, regardless of how many erroneously counted convictions the petitioner
has. Binding Circuit precedent would have dictated that the petitioner’s ACCA enhancement be
upheld as being supported by three qualifying predicate offenses even if the petitioner had timely
and successfully contested all of the erroneously counted convictions. As a result, the remedy in
§ 2255 is inadequate or ineffective to test the legality of a petitioner’s ACCA enhancement
whenever he has a mix of at least three convictions made up of one or more squarely foreclosed
convictions and two or fewer valid predicate convictions at the time of his initial habeas appeal.

       In these cases, then, the petitioner will meet Bryant step four. The petitioner will still,
however, be required to hurdle the procedural-default bar to obtain relief on the merits. See
supra at p. 24. Notably, the government may choose to waive the procedural-default defense at
the merits stage.
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            2. The Universe of Convictions

      Another question we must address before turning to our analysis of whether

McCarthan meets Bryant step four is which of McCarthan’s convictions are at

issue at Bryant step four. In most cases we see, the PSR or the sentencing court

expressly identifies which convictions support a petitioner’s ACCA enhancement.

Here, in contrast, neither the sentencing court nor the PSR identified which

convictions qualified McCarthan for an ACCA enhancement.

      In general, both the PSR and the sentencing court should specifically

identify which of a defendant’s prior convictions qualify a defendant for an

enhanced ACCA sentence. Title 18, United States Code, Section 3553(c) requires

a sentencing court to “state in open court the reasons for its imposition of the

particular sentence.” Under this provision, a defendant is entitled to know the

specific convictions on which an ACCA enhancement is recommended and

imposed. To hold otherwise would raise serious due-process concerns. Cf. Oyler

v. Boles, 368 U.S. 448, 452, 82 S. Ct. 501 (1962) (“[A] defendant must receive

reasonable notice and an opportunity to be heard relative to [a] recidivist charge

even if due process does not require that notice be given prior to the trial on the

substantive offense.”); United States v. Moore, 208 F.3d 411, 414 (2d Cir. 2000)

(“It is settled that due process requires that a defendant have notice and an




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opportunity to contest the validity or applicability of the prior convictions upon

which a statutory sentencing enhancement is based.”).

      Here, however, McCarthan did not object to the PSR’s failure to identify

which of his prior convictions justified an ACCA enhancement.             Nor did

McCarthan object to the sentencing court’s adoption of the PSR, or its failure to

identify specific prior convictions in support of its imposition of an ACCA

enhancement. McCarthan also did not raise the issue in his initial § 2255 petition.

On these facts, McCarthan forfeited any objection to the sentencing court’s failure

to identify the specific convictions supporting his ACCA enhancement. We must,

therefore, assume that the district court relied on all of McCarthan’s ACCA-

qualifying convictions in imposing McCarthan’s ACCA enhancement.

            3. McCarthan Does Not Meet the Jurisdictional Inquiry at Bryant
            Step Four

      With these observations in mind, we proceed to determine whether

McCarthan has demonstrated that his “current sentence exceeds the 10-year

statutory maximum authorized by Congress in § 924(a).” Bryant, 738 F.3d at

1274. We conclude that he has not because he has shown that the 10-year statutory

maximum applies in his case.

      There is no dispute that, at the time of his sentencing, McCarthan’s PSR

listed five, and only five, prior convictions that arguably qualified as ACCA

predicate convictions: (1) a 1987 conviction in Florida for possession of cocaine

                                        29
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with intent to sell or deliver; (2) a 1988 felony conviction in Georgia for

possession of cocaine with intent to distribute; (3) a second 1988 felony conviction

in Georgia for possession of cocaine with intent to distribute; (4) a 1992 conviction

in Florida for escape; and (5) a 1994 conviction in Florida for third-degree murder.

The parties agree that McCarthan’s 1992 Florida escape conviction is no longer a

valid ACCA predicate—in other words, that it is a squarely foreclosed conviction.

The parties also agree that the 1987 Florida cocaine conviction was, and remains, a

valid predicate conviction that counts against McCarthan at Bryant step four. So

we are left to decide whether two or more of McCarthan’s three remaining

convictions count against him at Bryant step four.

      We first review McCarthan’s two 1988 Georgia convictions for possession

of cocaine.    Under the ACCA, an enhancement is applicable only when a

defendant was previously convicted of three ACCA-qualifying offenses that were

“committed on occasions different from one another.” 18 U.S.C. § 924(e). At

sentencing, the government is required to show that “the three previous convictions

arose out of a separate and distinct criminal episode.” United States v. Proch, 637

F.3d 1262, 1265 (11th Cir. 2011). On appeal, we review de novo whether crimes

were committed on different occasions within the meaning of the ACCA. United

States v. Weeks, 711 F.3d 1255, 1261 (11th Cir.) cert. denied, __ U.S. __, 134 S.

Ct. 311 (2013).


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      The crux of the ACCA separate-occasions inquiry focuses on whether a

defendant “had a meaningful opportunity to desist his activity [after one offense]

before committing the [next] offense.” United States v. Pope, 132 F.3d 684, 690

(11th Cir. 1998).   If so, the two offenses are separate offenses for purposes of

imposing an ACCA enhancement; if not, the two offenses count as only a single

predicate ACCA offense. Id. In practice, this means that “so long as predicate

crimes are successive rather than simultaneous, they constitute separate criminal

episodes for purposes of the ACCA.” Id. at 692. “Distinctions in time and place

are usually sufficient to separate criminal episodes from one another even when the

gaps are small.” Id. at 690.

      Thus, we have held that prior convictions were separate ACCA offenses

where a defendant committed two burglaries in “immediate succession by breaking

into and robbing two offices that were 200 yards apart from one another,” id. at

689, 692; where a defendant committed two burglary offenses “on the same day at

separate addresses on the same street,” Proch, 637 F.3d at 1265; and where a

defendant burgled a credit union and, minutes later, broke into a storage shed in the

course of fleeing from the police, United States v. Lee, 208 F.3d 1306, 1307 (11th

Cir. 2000).

      Applying similar separate-occasions tests, our sister circuits have held that

two offenses are separate under the ACCA where a defendant robbed the same


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clerk at the same convenience store twice within a two-hour period, United States

v. Washington, 898 F.2d 439, 442 (5th Cir. 1990); where a defendant and his

accomplice committed armed robbery at a beauty shop and, thirty minutes later,

committed a second armed robbery at a nearby bar using the same weapon, United

States v. Brady, 988 F.2d 664, 666 (6th Cir. 1993); and where a defendant burgled

a cake shop and, approximately five to ten minutes later, committed aggravated

battery by pushing a policeman to the ground three blocks from the cake shop,

United States v. Schieman, 894 F.2d 909, 910 (7th Cir. 1990). In sum, even slight

temporal and geographical gaps between the conduct giving rise to prior

convictions will dictate that those convictions be considered separate predicate

offenses under the ACCA.

      In conducting our ACCA separate-occasions inquiry, we may look to only

the statutory definitions of the offenses, the charging document, any written plea

agreement, any transcript of plea colloquy, and any explicit factual finding by the

trial judge to which the defendant assented. Shepard v. United States, 544 U.S. 13,

16, 125 S. Ct. 1254 (2005). Here, no state-court Shepard documents exist for us to

rely on to determine whether McCarthan’s Georgia convictions qualify as separate

ACCA predicate convictions.

      Because McCarthan did not object to the court’s adoption of the facts in the

PSR, we must consider the facts in the PSR in evaluating whether McCarthan’s


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1988 Georgia convictions occurred on separate occasions. See, e.g., United States

v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (“Facts contained in a PSI are

undisputed and deemed to have been admitted unless a party objects to them before

the sentencing court with specificity and clarity.” (internal quotation marks

omitted)); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the

law of this circuit that a failure to object to allegations of fact in a PSI admits those

facts for sentencing purposes.”).

      Here, the criminal-history section of the PSR lists McCarthan’s two 1988

Georgia convictions for possession of cocaine with intent to distribute. Neither

party disputes that, in this Circuit, possession of cocaine with intent to distribute is

an ACCA predicate conviction. United States v. James, 430 F.3d 1150, 1155 (11th

Cir. 2005). Instead, the only issue is whether the two convictions occurred on

separate occasions such that they count as two ACCA predicate convictions.

      From the PSR, we can glean that both convictions were obtained in Fulton

County, Georgia. And, for both convictions, the PSR provides that, “[o]n March 9,

1988 [sic] the defendant possessed cocaine with the intent to distribute the

substance.” Despite the facial similarity of description, the two convictions are

listed as separate convictions and assigned separate criminal-history points for

purposes of tallying McCarthan’s criminal-history score—the probation officer

assigned two points for the first conviction and three points for the second


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conviction—for a total of five points between the two convictions.        Nor did

McCarthan object. These circumstances are dispositive of our separate-occasions

inquiry.

      The Sentencing Guidelines used for McCarthan’s 2004 sentencing (the 2003

Sentencing Guidelines) provided that a defendant’s “[p]rior sentences imposed in

unrelated cases [were] to be counted separately,” whereas a defendant’s “[p]rior

sentences imposed in related cases [were] to be treated as one sentence.” U.S.

SENTENCING GUIDELINES MANUAL § 4A1.2(a)(2) (U.S. SENTENCING COMM’N

2003) (emphases added).       In the Sentencing Commission’s commentary, the

Commission defined “related cases” as follows:

            3.     Related Cases. Prior sentences are not considered
                   related if they were for offenses that were
                   separated by an intervening arrest (i.e., the
                   defendant is arrested for the first offense prior to
                   committing the second offense). Otherwise, prior
                   sentences are considered related if they resulted
                   from offenses that (A) occurred on the same
                   occasion, (B) were part of a single common
                   scheme or plan, or (C) were consolidated for trial
                   or sentencing.

Id. § 4A1.2 cmt. n. 3. So, by not objecting to the PSR, McCarthan acknowledged

that his two 1988 Georgia convictions for possession of cocaine with intent to

distribute did not “occur[] on the same occasion” and that they were not “part of a

single common scheme or plan.” Id.



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       Given this admission, we cannot conceive of how McCarthan’s two Georgia

convictions could be considered a single ACCA predicate offense. Because they

did not “occur on the same occasion,” id., they necessarily must have occurred

successively rather than simultaneously. And the fact that the two crimes were not

part of a single common scheme or plan indicates that McCarthan had a

“meaningful opportunity to desist” between committing the two crimes, and that

there were “[d]istinctions in time and place” between the two offenses “sufficient

to separate [the] criminal episodes from one another.”               Id. at 690.     In these

circumstances, we are bound by our precedent and McCarthan’s admission to

conclude that McCarthan’s 1988 Georgia convictions are separate ACCA predicate

offenses.11

       11
          We note that the same sort of analysis would not hold water with respect to PSRs
drafted under the current Sentencing Guidelines. The current Sentencing Guidelines are stripped
of any reference to “related cases.” U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(a)(2) (U.S.
SENTENCING COMM’N 2014). Instead, the Guidelines provide as follows:

              If the defendant has multiple prior sentences, determine whether
              those sentences are counted separately or treated as a single
              sentence. Prior sentences always are counted separately if the
              sentences were imposed for offenses that were separated by an
              intervening arrest (i.e., the defendant is arrested for the first
              offense prior to committing the second offense). If there is no
              intervening arrest, prior sentences are counted separately unless
              (A) the sentences resulted from offenses contained in the same
              charging instrument; or (B) the sentences were imposed on the
              same day. Treat any prior sentence covered by (A) or (B) as a
              single sentence.

Id. Under the current Guidelines, then, whether sentences are treated as a single sentence or
multiple sentences sheds no light on whether the underlying offenses occurred on separate
occasions for purposes of the ACCA.

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      A petitioner cannot successfully argue that two of his predicate ACCA

offenses occurred simultaneously rather than sequentially and without a

meaningful gap between them—and therefore should have been counted as a single

predicate offense under our caselaw—when he has already acknowledged that

those same offenses did not occur on the same occasion and that they were not part

of a single common scheme or plan.

      In sum, we conclude, as we must, that McCarthan’s two 1988 Georgia

cocaine convictions were separate predicate ACCA offenses.               As a result,

McCarthan does not meet Bryant step four. Even after we disregard his 1992

Florida escape conviction as having been squarely foreclosed, and even if we

assume that McCarthan’s 1994 Florida third-degree murder conviction is not a

violent felony under the ACCA, McCarthan still has three ACCA-qualifying

convictions justifying his ACCA enhancement: his 1987 Florida possession-of-

cocaine-with-intent-to-sell-or-deliver conviction and his two 1988 Georgia

possession-of-cocaine-with-intent-to-distribute convictions. For this reason, three

qualifying convictions support McCarthan’s ACCA enhancement, and McCarthan

cannot satisfy Bryant step four. Bryant, 738 F.3d at 1274.

      By failing to demonstrate that he meets part four of the Bryant test,

McCarthan has failed to establish jurisdiction under the savings clause in §

2255(e). Id. As a result, the district court correctly determined that it lacked


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subject-matter jurisdiction to entertain McCarthan’s § 2241 petition. Williams v.

Warden, Fed. Bureau of Prisons, 713 F.3d 1332, 1337 (11th Cir. 2013), cert.

denied sub nom. Williams v. Hastings, __ U.S. __, 135 S. Ct. 52 (2014).

                                 CONCLUSION

      For the reasons stated above, we affirm the District Court’s Order dismissing

McCarthan’s § 2241 petition for lack of jurisdiction.

      AFFIRMED.




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PROCTOR, District Judge, concurring:

       I agree with the Majority’s conclusion that the district court did not have

jurisdiction to entertain McCarthan’s habeas petition. In reaching this correct

judgment, however, the Majority (in its otherwise well-written opinion) finds that

McCarthan met the first step of the test adopted in Bryant v. Warden, FCC

Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013),1 but failed to establish the

fourth. On this single point I disagree and write separately to state why we should

also conclude that McCarthan has not satisfied step one of Bryant.

       Congress has enacted substantial limits on the jurisdiction of federal courts

to hear federal prisoners’ section 2241 petitions. As the Majority has

acknowledged, section 2255’s savings clause severely limits a federal court’s

subject-matter jurisdiction to entertain a federal prisoner’s section 2241 habeas


       1
          Although in considering whether McCarthan may open the portal for relief under 28
U.S.C. § 2241 I am duty-bound to apply the five-part test outlined in Bryant, I agree with Judge
William Pryor’s concurrence in Samak v. Warden, FCC Coleman-Medium, 766 F.3d 1271, (11th
Cir. 2014) that the rule contrived in Bryant is indefensible as a matter of textual interpretation.
Id. at 1275–95. Indeed, in my view, the cumbersome nature of that test leads to just the type of
confusion we have here surrounding whether McCarthan has established the first requirement of
the Bryant test. Without question, as currently constructed, steps one and four of Bryant overlap.
That is, the clear language of step one requires a petitioner to show that the distinct conviction
that is challenged is the one that triggered the application of section 924(e). And step four
requires a showing that retroactive application of a new Supreme Court rule results in a current
sentence exceeding the 10-year statutory maximum which Congress authorized in section 924(a).
I understand the argument that my reading of Bryant’s step one may render its inquiry at step
four superfluous. But this reading of step one does nothing more (or less) than apply the precise
language of Bryant. 738 F.3d at 1274. And, again, the confusion created by comparing steps
one and four of Bryant serves as an example of why I believe Judge William Pryor’s point in
Samak is both well-reasoned and well-taken.

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petition. For a petitioner to establish jurisdiction, he must show that the remedy in

section 2255 “is inadequate or ineffective to test the legality of his detention.”

Maj. Op. at 8–9 (quoting 28 U.S.C. § 2255(e)); see Williams, 713 F.3d at 1340. In

Bryant, we established a five-step test2 that district courts in our Circuit must apply

in determining what a petitioner like McCarthan must show in order to establish

application of section 2255’s savings clause. Id. at 1274 (synthesizing our

previous decisions in Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), Gilbert v.

United States, 640 F.3d 1293 (11th Cir. 2011), and Williams v. Warden, 713 F.3d

1332 (11th Cir. 2013) in determining “what the statutory terms in § 2255(e)’s

savings clause mean and how to read § 2255(e) in a way that does not eviscerate or

undermine § 2255(h)’s restrictions on second or successive § 2255 motions but

also affords some meaning to the savings clause.”).
        2
          The Majority says that the test established in Bryant is “not some independent test that a
petitioner must satisfy in addition to the requirement of § 2255(e) to show that the ‘remedy by
motion’ is ‘inadequate or ineffective’ to test the legality of [the petitioner’s] detention; rather, the
purpose of each step of Bryant is to help us to determine when the ‘remedy by motion’ is
‘inadequate or ineffective’ to test the legality of [the petitioner’s] detention.” Maj. Op. at 26 n.9
(emphasis in original) (citing Bryant 738 F.3d at 1274). Presumably, the Majority believes this
explanation navigates around the problem that the inquiries contained in steps one and four of
Bryant are, to some degree, repetitive. But the explanation ignores the point that the Bryant test
was expressly formulated to explain how our Circuit interprets the language of the savings
clause. That is, Bryant explains how we must read that statutory provision and what a petitioner
must show to establish that a prior habeas petition under section 2255 was “inadequate or
ineffective to test the legality of his detention.” Here, the Majority’s reasoning on this point is
circular: we must look to the Bryant test to understand what the language and requirements of
the statute are (i.e., what a petitioner must show to take advantage of the savings clause); but we
must look back to the statute’s language to understand what the Bryant test means. At best, that
explanation is like the snake eating its tail. Moreover, the explanation acknowledges that, on
some level, the language of section 2255(e) is either in conflict with Bryant, or inconsistent with
its test. Of course, I agree. The Bryant test is itself an incorrect (or, at best, incomplete) textual
interpretation.
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       Turning to the plain language Bryant’s first step, McCarthan is required to

show that “throughout his sentencing, direct appeal, and first § 2255 proceeding,

our Circuit’s binding precedent had specifically addressed [his] distinct prior state

conviction that triggered § 924(e) and had squarely foreclosed [his] § 924(e) claim

that he was erroneously sentenced above the 10-year statutory maximum penalty in

§ 924(a).” Bryant, 738 F.3d at 1274. The Majority reads this language to contain

a restrictive clause modifying the term “binding precedent.” I disagree. Although

this language from Bryant does indeed contain a restrictive clause, that restrictive

clause -- “that triggered § 924(e)” -- restricts (that is, defines) the term “distinct

prior state conviction.” In other words, the clause “that triggered § 924(e)” defines

which “distinct prior state conviction” must be specifically addressed by our

precedent. A fair reading of this language does not permit us to say that the term

“distinct prior state conviction” is itself restrictive. It follows that in order to

satisfy step one of Bryant, a petitioner must point to a “distinct prior state

conviction” that our Court’s binding precedent had specifically addressed, and that

our binding precedent had foreclosed an earlier assertion that the “distinct prior

state conviction” at issue was improperly counted as a section 924(e) predicate

conviction.3


       3
        The Majority’s analysis of step one completely fails to even reference this “trigger”
language. (Maj. Op. at 14–21). The failure to mention the “trigger” language is a significant
omission from the Majority Opinion’s discussion of step one of Bryant.
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      It is obviously of no moment if the distinct prior state conviction challenged

is only one of many (here, at the time of sentencing, five, and, at present, no less

than three) ACCA predicate convictions that would themselves support the

enhancement. In such an instance, correcting any error with respect to the

counting of that distinct challenged conviction would not change the ACCA

calculus. And that is precisely the situation McCarthan faces here. By force of

law and logic, his escape conviction could not have been the distinct conviction

that triggered section 924(e)’s application (and I use the clause “that triggered

section 924(e)’s application” in a restrictive sense) because there were, and

continue to be, at least three other convictions that support application of the

enhancement.

      Again, the Majority’s response to this reading of the Bryant test does

nothing more than point out that step one and four are repetitive. I am in complete

agreement. This only supports a conclusion that the test announced in Bryant is

both clumsy and indefensible as a matter of textual interpretation.

      I have no dispute with the Majority’s conclusions that (1) standing in a

vacuum, McCarthan’s escape conviction was erroneously counted and, (2) at the

time he was sentenced, any argument that his escape was not a violent felony was

squarely foreclosed by our binding Circuit precedent. That is, McCarthan has

satisfied part (yet only part) of Bryant’s first step. But that is not enough for him


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to meet the first element of Bryant. I would conclude that to satisfy Bryant’s step

one McCarthan was required to show, among other things, that the escape

conviction he now challenges is the distinct conviction that triggered the section

924(e) enhancement. On this record, it is clear that it was not.

      In all other respects, I join in my colleague’s Majority well-reasoned

opinion.




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