            Case: 17-10822   Date Filed: 03/02/2018   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10822
                         Non-Argument Calendar
                       ________________________

         D.C. Docket Nos. 1:16-cv-22898-PAS; 1:05-cr-20399-PAS-1



RALPH CURRY,

                                                            Petitioner-Appellee,

                                     versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellant.

                       ________________________

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

                              (March 2, 2018)

Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:
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      The Government appeals the District Court’s grant of Ralph Curry’s

authorized second or successive 28 U.S.C. § 2255 motion to vacate his sentence.

On appeal, the Government argues that the District Court erred in determining that

Curry was entitled to relief on his claim under Johnson v. United States, 135 S. Ct.

2551 (2015), because he could not establish that the sentencing court relied on the

now-invalidated residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) when imposing an

enhancement under the Armed Career Criminal Act (“ACCA”).

      We review de novo the District Court’s grant of a successive 28 U.S.C.

§ 2255 motion. See McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002)

(reviewing a district court’s dismissal of a successive § 2255 motion). The ACCA,

which imposes heightened prison sentences for certain defendants with three prior

convictions for either violent felonies or serious drug offenses, defines the term

“violent felony” as any crime punishable by a term of imprisonment exceeding one

year that:

      (i)    has as an element the use, attempted use, or threatened use of
             physical force against the person of another; or

      (ii)   is burglary, arson, or extortion, involves use of explosives, or
             otherwise involves conduct that presents a serious potential risk
             of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred

to as the “elements clause,” while the second prong contains the “enumerated

crimes” and, finally, what is commonly called the “residual clause.” United States
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v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In order to be qualifying predicates,

prior offenses must have been “committed on occasions different from one

another.” 18 U.S.C. § 924(e)(1).

      The Supreme Court has held that the residual clause of the ACCA is

unconstitutionally vague because it creates uncertainty about how to evaluate the

risks posed by a crime and how much risk it takes to qualify as a violent felony.

Johnson, 135 S. Ct. at 2557-58, 2563. The Supreme Court stated that Johnson did

not affect any of the ACCA’s other provisions. Id. at 2563. On April 18, 2016, the

Supreme Court held that Johnson announced a new substantive rule that applies

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

1257, 1268 (2016).

      In Beeman v. United States, a case involving a movant’s first § 2255 motion,

we held that a § 2255 movant raising a Johnson claim must establish that the

residual clause actually adversely affected the sentence he received. 871 F.3d

1215, 1221 (11th Cir. 2017). We noted that previous precedent developed in the

context of an application to file a second or successive § 2255 motion was

applicable. Id. at 1221 n.1. We stated that a movant must show that the sentencing

court relied solely on the residual clause to qualify a prior conviction as a violent

felony and that there were not at least three other prior convictions that could have

qualified as violent felonies or serious drug offenses. Id. at 1221. We explained


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that the movant must show that it was more likely than not that the residual clause

led to the sentencing court’s enhancement of his sentence. Id. at 1222. We stated

that if it was just as likely that the sentencing court used the elements or

enumerated crimes clauses, solely or as an alternative basis for the enhancement,

then the movant has failed to show that his enhancement was due to use of the

residual clause. Id.

      Here, under Beeman, the District Court erred by granting Curry’s § 2255

motion because Curry concedes that the record was unclear regarding which

convictions, and which clause of the ACCA, the sentencing court relied on to

impose the ACCA enhancement. The District Court—observing that this Court

had not yet decided the standard of proof a movant must meet to succeed on his

Johnson claim—rested its decision to vacate Curry’s sentence on In re Chance, in

which a panel of this Court stated in dicta that “the required showing is simply that

§ 924(c) may no longer authorize [a movant’s] sentence as that statute stands after

Johnson—not proof of what the judge said or thought at a decades-old sentencing.”

831 F.3d 1335, 1341 (11th Cir. 2016). Subsequent to the District Court’s grant of

Curry’s motion to vacate his sentence, we decided Beeman, which discarded the

approach taken by the panel in In re Chance and instead adopted the above-




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discussed standard. We therefore reverse the District Court’s order granting

Curry’s § 2255 motion and remand for the District Court to dismiss it. 1

       REVERSED AND REMANDED.




       1
         Curry also contends that we lack subject-matter jurisdiction to entertain the
Government’s appeal because the Government failed to obtain a COA before proceedings with
its appeal. This argument is meritless: the Government need not secure a COA before appealing
the vacation of a petitioner’s sentence pursuant to § 2255. See Fed. R. App. P. 22(b)(3).
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