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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13648
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:99-cr-00386-RWS-ECS-1



SAMUEL GRAY,

                                                         Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                        Respondent - Appellee.

                       ________________________

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

                              (July 10, 2015)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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       Samuel Gray, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2241 habeas petition to vacate his sentence. In his

§ 2241 petition in the district court, Mr. Gray argued that under the new rule

announced by the Supreme Court in Descamps v. United States, 133 S. Ct. 2276

(2013), he is actually innocent of at least one of the predicate offenses that

comprised his three “serious violent felony” convictions, which required the

district court to sentence him to mandatory life imprisonment. See 18 U.S.C. §

3559(c). The district court denied Mr. Gray’s petition, because it concluded that

Descamps was not retroactively applicable on collateral review and, therefore, Mr.

Gray could not avail himself of 28 U.S.C. § 2255(e)’s savings clause to file his §

2241 petition. 1 Although neither the Supreme Court nor we have decided whether

Descamps applies retroactively on collateral review, we affirm. After reviewing

the record and the parties’ briefs, we conclude that, even if Descamps is applicable

retroactively, Mr. Gray’s previous convictions qualify as “serious violent felonies”

under § 3559(c).

                                               I

       Mr. Gray was convicted by a jury in 1999 of Hobbs Act robbery, in violation

of 18 U.S.C. § 1951, and of using and carrying a firearm during and in relation to

1
  The proper disposition, given the district court’s conclusion, would have been for the district
court to dismiss Mr. Gray’s petition, rather than to deny relief. See Darby v. Hawk-Sawyer, 405
F.3d 942, 945-46 (11th Cir. 2005). This, however, does not impede our ability to review the
district court’s disposition of Mr. Gray’s petition.
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Hobbs Act robbery, in violation of 18 U.S.C. § 924(c). Mr. Gray previously had

been convicted of robbery in 1990 and rape in 1979, both in Georgia. The district

court sentenced Mr. Gray to life imprisonment for the Hobbs Act robbery and the

firearm charge under 18 U.S.C. § 3559(c)(1), which provides that if a defendant

has “2 or more serious violent felonies” and is then convicted of a third serious

violent felony, he “shall be sentenced to life imprisonment.”

       At his 1999 sentencing hearing, Mr. Gray argued to the district court (and

again to us on direct appeal) that his prior 1990 robbery conviction did not

constitute a “serious violent felony” under § 3559(c). First, he did not use a

“firearm    or    other    dangerous      weapon.”      Second,     §   3559(c)(3)(A)        was

unconstitutional because it placed the burden on the defendant to establish that a

conviction did not qualify as a serious violent felony. 2 The district court overruled

Mr. Gray’s objections at sentencing, and we affirmed on direct appeal. See United

States v. Gray, 260 F.3d 1267 (11th Cir. 2001).

       In 2003, Mr. Gray filed a timely motion for post-conviction relief under 28

U.S.C. § 2255, alleging ineffective assistance of counsel. He then moved to

supplement his § 2255 motion because, under the Supreme Court’s then recent

decision, in Blakely v. Washington, 245 U.S. 296 (2004), a jury, rather than a

judge, should be charged with determining the facts of a predicate conviction under

2
 Mr. Gray’s written guilty plea for the 1990 robbery conviction, however, stated he used a
screwdriver in furtherance of the robbery.
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§ 3559(c). The district court denied Mr. Gray’s motion to supplement and

ultimately denied his § 2255 petition. Mr. Gray filed his notice to appeal, but the

appeal was dismissed because he failed to pay the docketing and filing fees.

      In 2013, Mr. Gray filed a second § 2255 motion and argued that his sentence

violated the Supreme Court’s new decision in Descamps, which should be applied

retroactively on collateral review. Under Descamps, Mr. Gray argued, the district

court had erred in looking beyond the statute of conviction for his 1990 robbery

conviction to determine whether it qualified as a “serious violent felony.” Mr. Gray

also argued that his rape conviction was not a valid predicate offense because the

Georgia statute under which he was convicted did not require a showing of

physical force, as § 3559(c) requires. The district court did not rule on the merits of

Mr. Gray’s motion, but dismissed it as a second and successive § 2255 motion

filed without authorization from this Court.

      Mr. Gray then filed the instant § 2241 motion, claiming again that his

sentence should be vacated under Descamps. The district court concluded that Mr.

Gray had failed to establish that § 2255(e)’s saving clause allowed him to bring his

§ 2241 petition, because Descamps did not apply retroactively on collateral review.

On appeal, Mr. Gray argues that the district court erred because Descamps does

apply retroactively on collateral review, and because he is “actually innocent” of

his § 3559(c)(1) life sentence because his prior convictions do not constitute


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“serious violent felonies.” His 1990 robbery conviction, Mr. Gray claims, was not

an armed robbery conviction, and his 1979 rape conviction did not qualify either,

because the state failed to prove he used the physical force necessary for the

offense to constitute a “serious violent felony.” We disagree.

                                         II

      We review whether a prisoner may bring a § 2241 petition under the savings

clause of § 2255(e) de novo. See Bryant v. Warden, FCC Coleman-Medium, 738

F.3d 1253, 1262 (11th Cir. 2013). To avail himself of § 2255(e)’s savings clause, a

petitioner has “the burden of demonstrating that the § 2255 remedy was inadequate

or ineffective to test the legality of his detention.” Id. (citing Turner v. Warden,

709 F.3d 1328, 1333 (11th Cir. 2013)). We have said that § 2255(e)’s savings

clause “might apply to some claims involving a ‘fundamental defect’ in sentencing

where the petitioner had not had an opportunity to obtain judicial correction of that

defect earlier [but now has an opportunity] . . . based upon a retroactively

applicable Supreme Court decision overturning circuit precedent.” Wofford v.

Scott, 177 F.3d 1236, 1244-45 (11th Cir. 1999).

      In Bryant, we specifically held that § 2255(e)’s savings clause permitted a §

2241 petition where a petitioner’s sentence exceeded the otherwise applicable

statutory maximum sentence due to a sentencing enhancement under the Armed

Career Criminal Act, 18 U.S.C. § 924(e). The enhancement was based on a prior


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conviction which later precedent established was not a violent felony under the

Armed Career Criminal Act. Bryant, 738 F.3d at 1256-57. We assume without

deciding here that the same holds true for similar enhancements under § 3559(c).

      In Descamps, the Supreme Court, on direct appeal, held that courts could not

apply a “modified categorical approach” under the ACCA to look beyond the

statutory elements of a prior conviction when the statutory predicate offense

involved a single, indivisible set of elements. 133 S. Ct. at 2281-82. Mr. Gray

argues here, that like ACCA, which “increases the sentences of certain federal

defendants who have three prior convictions” for violent felonies, § 3559(c)’s

“three strikes” provision is also subject to Descamps’ “modified categorical

approach,” which prohibits a sentencing court from looking beyond the elements

of a defendant’s prior conviction for sentencing purposes when the statute contains

indivisible elements.

      Although the district court dismissed Mr. Gray’s motion because it found

Descamps did not apply retroactively on collateral review, neither the Supreme

Court nor we have decided yet whether Descamps applies retroactively on

collateral review. We do not need to decide this question today, because even

assuming Descamps applies retroactively on collateral review, Mr. Gray’s robbery

and rape convictions would nonetheless constitute “serious violent felonies” under

§ 3559(c).


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                                          A

      Mr. Gray’s 1979 rape conviction constitutes a “serious violent felony” under

§ 3559(c). In relevant part, § 3559(c) explicitly provides that “assault with intent to

commit rape” is a “serious violent felony.” See § 3559(c)(2)(F)(i). Mr. Gray argues

that the state failed to prove he used the physical force necessary for the offense to

constitute a serious violent felony. But rape, under § 3559(c)(2)(F)(i) contains no

threshold force requirement. The statute provides that assault with intent to commit

rape, aggravated sexual abuse and sexual abuse, and abusive sexual contact are

“serious violent felonies” under § 3559(c).

      According to Mr. Gray’s presentencing report, a jury convicted him of

forcibly raping a woman against her will. Because Mr. Gray did not object to the

characterization of his rape conviction in the report or at the sentencing hearing, he

is deemed to have admitted that he forcibly raped a woman against her will. See

United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006) (“the facts of prior

convictions [ ] contained in [a] PSI . . . are deemed to have been admitted” if not

objected to) (citing United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006)).

See also United States v. Davis, 587 F.3d 1300, 1303-04 (11th Cir. 2009) (“[The

defendant] was deemed to have admitted, for sentencing purposes, the facts in the

PSI he did not object to clearly and specifically at sentencing.”).


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      Georgia’s rape statute, moreover, is divisible and provides that a person is

guilty of rape “when he has carnal knowledge of” either “[a] female forcibly

against her will” or “[a] female who is less than ten years of age.” Ga. Stat. § 16-6-

1 (1933). When a statute is divisible, Descamps’ prohibition against a “modified

categorical approach” does not apply. See United States v. Howard, 742 F.3d 1334,

1338 (11th Cir. 2014). Descamps would, therefore, not provide a § 2255(e) savings

clause remedy for Mr. Gray’s claim that the rape conviction is not a qualifying

offense.

      In an event, because Mr. Gray was convicted of raping a woman forcibly

against her will, under Ga. Stat. § 16-6-1, this constitutes a “serious violent felony”

under § 3559(C)(2)(F)(i). See also Gray, 260 F.3d at 1277. Furthermore, §

3559(c)(2)(F)(i) cites 18 U.S.C. § 2241(c), which provides that attempting or

engaging in sex with a child who is less than 12 years of age also qualifies as a

“serious violent felony” under § 3559(c). Therefore, even if Mr. Gray had been

convicted under the other prong of Georgia’s rape statute, his conviction would

nevertheless have been a qualifying predicate offense under § 3559(c).

      In sum, we reject Mr. Gray’s argument that his rape conviction does not

constitute a “serious violent felony” under § 3559(c). We, therefore, now turn to

whether Mr. Gray’s 1990 robbery conviction constituted a “serious violent felony.”




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                                         B

      Mr. Gray’s 1990 robbery conviction also constitutes a “serious violent

felony” under § 3559(c). “[T]he term ‘serious violent felony’ means . . . robbery as

described in [18 U.S.C. §§] 2111, 2113, or 2118.” These referenced sections of the

U.S. Code include regular robbery, bank robbery, and robberies and burglaries

involving controlled substances. Importantly, robbery is defined as “tak[ing] or

attempt[ing] to take from the person or presence of another anything of value . . .

by force and violence, or by intimidation.” 18 U.S.C. § 2111. Generally, therefore,

all robberies are serious violent felonies under § 3559(c). But § 3559(c)(3)(A)

provides defendants with an escape clause or affirmative defense to dispute

whether their robbery conviction qualified as a predicate felony under the statute.

See Gray, 260 F.3d at 1278 (“Specifically, the three strikes statute contains a

disqualification provision, or an affirmative defense that provides a defendant with

the opportunity to prove that an otherwise qualifying conviction does not constitute

a ‘strike’ under the statute.”). See also United States v. Davis, 260 F.3d 965 (8th

Cir. 2001) (describing § 3559(c)(3)(A) as an affirmative defense available to

defendants to prove their prior robbery conviction did not qualify for the

sentencing enhancement). If a defendant can “establish[] by clear and convincing

evidence that no firearm or other dangerous weapon was used in the offense and no

threat of use of a firearm or other dangerous weapon was involved in the offense,”


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and “the offense did not result in death or serious bodily harm . . . to any person,”

his robbery conviction does not qualify as a “serious violent felony” under the

statute. § 3559(c)(3)(A).

      Mr. Gray argues that at sentencing the district court violated Descamps

because it looked beyond the statutory definition of his Georgia robbery conviction

to determine that he had used a dangerous weapon during the robbery. Mr. Gray

misreads § 3559(c)(3)(A). Robberies, under § 3559(c), are by definition serious

violent felonies. It was Mr. Gray’s burden, not the government’s, to establish by

clear and convincing evidence that his prior robbery conviction did not qualify as a

serious violent felony under § 3559(c)(3)(A). As a result, the district court had no

need to go beyond the statute of his conviction to establish that the conviction was

a “serious violent felony.” Rather, it was Mr. Gray who had to establish that he did

not employ a firearm or other dangerous weapon. Descamps did not prohibit Mr.

Gray from trying to make this showing.

      Even if Descamps were to apply retroactively, it does not apply to §

3559(c)(3)(A) or Mr. Gray’s case. See United States v. Mackovich, 209 F.3d 1227,

1238-41 (10th Cir. 2000) (discussing how Taylor v. United States, 495 U.S. 575

(1990), which held that district courts at sentencing could not go beyond the

statutory definitions of the prior offenses to the particular facts underlying those




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convictions for purposes of the Armed Career Criminal Act, did not apply to 18

U.S.C. § 3559(c)(3)(A)).

      Unlike § 924(e) of the ACCA, § 3559(c)(3)(A) unambiguously provides that

a prior robbery will not qualify as a predicate offense if a defendant can clearly and

convincingly establish that “no firearm or other dangerous weapon was involved in

the offense” and “the offense did not result in death or serious bodily injury.” This

language requires a sentencing court to look to the underlying facts of the offense

in order to determine whether the defendant can prove his robbery conviction was

a non-qualifying offense. Where § 924(e) directs sentencing courts to look to the

elements of conviction, § 3559(c)(3)(A) allows them to look at the underlying

facts. We, therefore, do not believe Descamps is applicable to § 3559(c)(3)(A)’s

non-qualification analysis.

      Moreover, we have previously stated that § 2255(e)’s savings clause does

not provide an avenue for a § 2241 petition based on the extension of a Supreme

Court decision. See Flint v. Jordan, 514 F.3d 1165, 1167 (11th Cir. 2008). Here,

Mr. Gray not only asks us to find that Descamps applies retroactively on collateral

review, but also to extend to Descamps’ holding to the statutory language in §

3559(c)(3)(A). For the reasons stated above, we believe that §§ 924(e) and

3559(c)(3)(A) are different. Therefore, even if Descamps applies retroactively on




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collateral review, it does not apply to § 3559(c)(3)(A) or Mr. Gray’s current § 2241

petition.

                                         III

      We affirm the district court’s order.



      AFFIRMED.




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