           Case: 17-15394   Date Filed: 07/16/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15394
                        Non-Argument Calendar
                      ________________________

     D.C. Docket Nos. 1:16-cv-02090-TWT; 1:01-cr-00726-TWT-GGB-1



CHARLES HARPER,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                      ________________________

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

                             (July 16, 2018)

Before JORDAN, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:
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      Charles Harper appeals the district court’s denial of his authorized second 28

U.S.C. § 2255 motion to vacate, which raised a challenge to his sentence under

Johnson v. United States, 135 S. Ct. 2551 (2015). The district court granted a

certificate of appealability (“COA”) regarding whether (1) Harper’s motion to

vacate was time-barred under 28 U.S.C. § 2255(f), and (2) the Georgia aggravated-

assault statute has as an element the use, attempted use, or threatened use of

physical force against the person of another. Although we conclude that the

district court erred in in denying Harper’s motion as untimely, we nonetheless

affirm because Harper cannot meet his burden of proving, under Beeman v. United

States, 871 F.3d 1215 (11th Cir. 2017), that it is more likely than not that his

sentence was enhanced pursuant to the Armed Career Criminal Act’s residual

clause in violation of Johnson. The facts are known to the parties; we will not

repeat them here except as necessary.

      In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and its factual findings for clear error. Farris v. United States, 333 F.3d

1211, 1216 (11th Cir. 2003). We also review de novo the district court’s

determination that a § 2255 motion is time-barred. Beeman, 871 F.3d at 1219.

Regardless of the ground stated in the district court’s order or judgment, we may

affirm on any ground supported by the record. Castillo v. United States, 816 F.3d

1300, 1303 (11th Cir. 2016).


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        There is a one-year statute of limitations for filing a § 2255 motion to vacate,

which begins to run following, among other things, the date on which the judgment

of conviction becomes final or “the date on which the right asserted was initially

recognized by the Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.”

28 U.S.C. § 2255(f)(1), (3). The § 2255(f) statute of limitations “requires a claim-

by-claim approach to determine timeliness.” Beeman, 871 F.3d at 1219 (quotation

marks omitted). Thus, if a defendant asserts that his § 2255 motion is timely

because he filed it within one year of the Supreme Court’s issuance of a decision

recognizing a new right, we must determine whether each claim asserted in the

motion depends on that new decision. Id.

        The Armed Career Criminal Act (“ACCA”) 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 clause” and, finally, what is commonly called the “residual clause.” See

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United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). On June 26, 2015, the

Supreme Court in Johnson 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.

135 S. Ct. at 2557-58, 2563. Thus, under Johnson, a defendant’s sentence cannot

be enhanced using the ACCA’s residual clause because the residual clause is

unconstitutionally vague. Id. at 2563. Thereafter, 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, 1264-65, 1268 (2016).

      In Descamps v. United States, the Supreme Court held that when a crime of

conviction has only a “single, indivisible set of elements,” sentencing courts may

consider only the statute’s language when determining if a conviction qualifies as a

“violent felony” under the ACCA’s elements clause. 570 U.S. 254, 258 (2013).

Although we have held that the Descamps decision is retroactively applicable to

cases on collateral review, we noted that Descamps did not set out a right newly

recognized by the Supreme Court. See Mays v. United States, 817 F.3d 728, 733-

34 (11th Cir. 2016).

      Importantly for present purposes, in Beeman we explained the difference

between a claim relying on Johnson and a claim relying on Descamps, clarifying

that a Johnson claim argues that the defendant was sentenced as an armed career


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criminal under the residual clause, whereas “a Descamps claim asserts that the

defendant was incorrectly sentenced as an armed career criminal under the

elements or enumerated offenses clause.” Beeman, 871 F.3d at 1220. We

determined that the litigant there had sufficiently raised both. Id. We concluded

that he had raised a Descamps claim in his § 2255 motion because he relied on that

decision in arguing that his Georgia conviction for aggravated assault could no

longer qualify as a violent felony under the elements clause. Id. Although the

movant had primarily relied on Descamps, we concluded that he had nevertheless

also raised a Johnson claim because he (1) filed his motion 19 days before the 1-

year anniversary of the Johnson decision and (2) argued that Georgia aggravated

assault historically qualified as an ACCA predicate under the residual clause and

that courts have defaulted to using the residual clause for many state statutes that

might otherwise have qualified under the elements or enumerated-offenses clauses.

Id. at 1220-21. We held that the movant’s Descamps claim was untimely but that

he raised a timely Johnson claim. Id.

      As to the merits of the Johnson claim, we held that a § 2255 movant must

prove that it was “more likely than not” that the use of the residual clause led the

sentencing court to impose the ACCA enhancement. Id. at 1221-22. As nothing

in the record showed that the sentencing court relied on the residual clause—rather

than the elements clause—and the movant there cited no precedent from the time


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of sentencing showing that his conviction qualified as a violent felony only under

the residual clause, we concluded that the movant could not carry his burden. Id.

at 1224-25. However, we stated that each case must be judged on its own facts and

that different kinds of evidence could be used to show that a sentencing court

relied on the residual clause. Id. at 1224 n.4. As examples, we stated that a record

may contain direct evidence in the form of a sentencing judge’s comments or

findings indicating that the residual clause was essential to an ACCA

enhancement. Id. Further, we stated that a record may contain sufficient

circumstantial evidence, such as unobjected-to presentence investigation report

(“PSI”) statements recommending that the enumerated-offenses and elements

clauses did not apply or concessions made by the prosecutor that those two clauses

did not apply. Id. We clarified, however, that the relevant issue is one of

“historical fact”—whether at the time of sentencing the defendant was sentenced

solely under the residual clause. Id. at 1224 n.5. Accordingly, we emphasized that

precedent issuing after sentencing “casts very little light, if any, on the key

question” whether the defendant was, in fact, sentenced only under the residual

clause. Id.

      Here, under Beeman, the district court erred when it determined that

Harper’s § 2255 motion was untimely. First, Harper filed his second § 2255

motion within one year of Johnson. See Beeman, 871 F.3d at 1219; 28 U.S.C.


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§ 2255(f)(3). Second, Harper’s claim is appropriately characterized as a Johnson

claim, despite his frequent citations to Descamps, because he (1) filed his § 2255

motion days before the one-year deadline for filing a Johnson claim, indicating that

he intended to invoke Johnson; (2) argued that the only clause under which his

Georgia aggravated assault conviction could have qualified under was the residual

clause because there was no existing precedent analyzing it under the elements

clause; and (3) asserted that he no longer had three predicate convictions after

Johnson. Beeman, 871 F.3d at 1220-21.

      Despite the timeliness of Harper’s motion, his Johnson claim nonetheless

fails. Like the movant in Beeman, Harper cannot prove that it is more likely than

not that his sentence was enhanced under the ACCA’s residual clause. See

Beeman, 871 F.3d at 1221-22. In fact, he made a series of concessions before the

district court that are dispositive of the issue. In his second § 2255 motion, Harper

acknowledged that whether Georgia aggravated assault remained a violent felony

after Johnson was “up in the air,” and noted that there was no binding precedent

from this Court addressing the issue. Beeman, 871 F.3d at 1224-25. In his reply,

Harper admitted that the record was silent as to whether the district court used the

residual clause to enhance his sentence, as the district court did not specify under

which clause his offenses qualified. Beeman, 871 F.3d at 1223. The most he

could say is that the sentencing court may have relied on the residual clause


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because it did not affirmatively rely on the elements clause. See Beeman, 871 F.3d

at 1223-25. That is not enough. Harper has effectively conceded that he cannot

meet the burden in Beeman.

      Furthermore, Harper’s concessions aside, the record here is silent as to

which clause the court relied on to enhance his sentence. The district court at

sentencing did not explain or indicate, one way or the other, whether the ACCA

enhancement applied because Georgia aggravated assault was a violent felony

under the elements clause or residual clause. Beeman, 871 F.3d at 1221-25. While

the sentencing court noted that Harper was an armed career criminal—an assertion

with which Harper’s counsel affirmatively agreed—it did not state how it came to

that determination. Nor is Harper able to point to any precedent from this Court

that analyzes the Georgia aggravated assault statute under the residual clause.

Thus, Harper (like the movant in Beeman) cannot show that he more likely than

not was sentenced under the residual clause.

      Because Harper cannot meet his burden of proving, pursuant to Beeman, that

it was more likely than not his sentence was enhanced under the ACCA’s residual

clause, we AFFIRM.




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