           Case: 17-15506   Date Filed: 02/04/2019   Page: 1 of 9


                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15506
                        Non-Argument Calendar
                      ________________________

                D.C. Docket Nos. 4:16-cv-00339-RH-CAS,
                       4:13-cr-00031-RH-CAS-2


MICHAEL LAVERNE HALL, JR.,

                                                     Petitioner - Appellant,


                                  versus


UNITED STATES OF AMERICA,

                                                     Respondent - Appellee.

                      ________________________

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

                            (February 4, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Michael Hall, Jr., appeals the district court’s denial in part of his motion to

vacate his 132-month total sentence under 28 U.S.C. § 2255. The district court

determined that, under Johnson v. United States, 135 S. Ct. 2551 (2015), Hall’s

Armed Career Criminal Act sentence was unlawful. But the court also determined

that Hall’s original term of imprisonment remained appropriate even after

Johnson.1

       The district court granted Hall a certificate of appealability on the issue of

whether he is entitled to relief from his sentence based on Johnson. For the

reasons that follow, we affirm.

                                                 I.

       Hall pled guilty to drug and firearm charges, including possession of a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g), and possession of

a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). As part of his § 922(g) charge, the district court determined that Hall

should receive an enhanced sentence under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. §924(e), because of a number of prior state convictions.

ACCA provides for a minimum 15-year prison sentence whenever a § 922(g)

defendant has three prior “violent felony” or serious drug convictions. See 18



       1
         The district court granted relief insofar is it reduced Hall’s term of supervised release
from 5 to 3 years. That relief is not at issue in this appeal.
                                                  2
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U.S.C. § 924(e). (Otherwise, the maximum sentence for a § 922(g) offense is 10

years.)

      In anticipation of sentencing, the probation office prepared a presentence

investigation report (“PSR”), which classified Hall as an armed career criminal

under ACCA. The ACCA enhancement resulted in a Sentencing Guidelines

offense level of 34. The PSR also applied the career offender enhancement under

U.S.S.G. § 4B1.1 based on Hall’s prior state convictions. The career offender

enhancement resulted in an offense level of 37. Because it was highest, the offense

level of 37 applied. See U.S.S.G. § 4B1.4(b)(2). With a three-level reduction for

acceptance of responsibility, Hall’s total offense level was 34. He had a criminal

history category of VI, which resulted in a guidelines range of 262 to 327 months’

imprisonment. The § 922(g) offense carried a mandatory minimum sentence of 15

years’ imprisonment and the § 924(c) offense carried a mandatory consecutive

sentence of 60 months’ imprisonment. With the mandatory 60-month consecutive

term, the total guidelines range for Hall’s sentence was 322 to 387 months’

imprisonment. Neither party objected to the PSR.

      Before Hall’s sentencing, the government filed a substantial assistance

motion in which it asked the district court to consider Hall’s cooperation with the

government’s criminal investigation and to reduce Hall’s guidelines range by thirty

percent. At sentencing, the district court heard from several of Hall’s family


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members about his difficult upbringing, personal strides towards positive change,

and cooperation with the government. The government further detailed Hall’s

assistance but also emphasized Hall’s lengthy criminal history. The district court

considered Hall’s family’s testimony, the government’s arguments and substantial

assistance motion, the sentencing factors set forth in 18 U.S.C. § 3553(a), 2 and

sentenced Hall to a total of 132 months’ imprisonment, consisting of 108 months

on his drug and § 922(g) convictions, to run concurrently with each other, and 24

months on his § 924(c) conviction to run consecutively to the 108 months.

       Hall did not file a direct appeal. Instead, when the Supreme Court decided

Johnson, Hall filed a § 2255 motion to vacate, arguing that he no longer qualified

as an armed career criminal under ACCA and was entitled to be resentenced. The

district court concluded that, after Johnson, Hall no longer qualified for an ACCA-

enhanced sentence. But the court nonetheless denied Hall relief from his term of

incarceration, determining that the error in his sentence was harmless. The district

court noted that neither the Supreme Court nor this Court had squarely addressed

what harmlessness standard might apply on collateral review of a federal sentence.

But it also noted that the Supreme Court had addressed the standard for collateral


       2
          The factors delineated in 18 U.S.C. § 3553(a) include “the nature and circumstances of
the offense and the history and characteristics of the defendant”; “the need for the sentence
imposed . . . to afford adequate deterrence to criminal conduct[,] . . . to protect the public from
further crimes of the defendant,” and “to provide the defendant with needed educational or
vocational training”; and “the kinds of sentences available” and established sentencing ranges.
See 18 U.S.C. § 3553(a)(1)-(5).
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review of a state-court trial error: the error is harmless unless it “had substantial

and injurious effect or influence” on the determination under review. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks omitted). The

district court concluded that “a parallel standard applies to collateral review of a

federal sentencing error.” Doc. 109 at 4. 3

      The district court concluded that the Johnson error did not have such an

effect on Hall’s sentence. The court explained that in the absence of the ACCA

enhancement, Hall’s guidelines range—which was determined by his career

offender status—would remain the same. But, the court noted, the Sentencing

Guidelines had been amended since Johnson, and even before those amendments

“district judges properly could conclude—and I routinely concluded—that in light

of Johnson an appropriate sentence was below the range calculated based on the

career-offender [guideline].” Id. at 6. For this reason, the district court stated: “I

also would have calculated . . . the guideline range that would have applied had

Mr. Hall not been a career offender. I would have given more weight to that

calculation than to the technically applicable career-offender calculation.” Id. at 7.

That calculation would have yielded a combined range on all counts of 211 to 248

months’ imprisonment. Given this range, the government’s substantial assistance



      3
          “Doc. #” refers to the numbered entry on the district court’s docket in case No. 4:13-cr-
31.
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motion, and the sentencing factors set forth in § 3553(a), the court stated, a

sentence of 132 months’ imprisonment was “‘sufficient, but not greater than

necessary, to comply with’ the statutory sentencing purposes.” Id. (quoting 18

U.S.C. § 3553(a)). Further, given Hall’s extensive criminal history, “a sentence

below 132 months would not be sufficient to comply with the statutory sentencing

purposes.” Id. at 8. Thus, the district court concluded, the Johnson error did not

affect Hall’s sentence, and he was not entitled to relief from his term of

imprisonment.

      This is Hall’s appeal.

                                          II.

      “In a [s]ection 2255 proceeding, we review legal issues de novo and factual

findings under a clear error standard.” United States v. Walker, 198 F.3d 811, 813

(11th Cir. 1999).

                                          III.

      On appeal, Hall argues that the district court erred in applying the

harmlessness standard from Brecht in the context of collateral review of a federal

sentence. He argues that a higher standard, “harmless beyond a reasonable doubt,”

should apply instead. Chapman v. California, 386 U.S. 18, 24 (1967) (applying

this standard to direct review of a state court trial error). We have not specifically

addressed in a published opinion what harmlessness standard should apply in this


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context. 4 For the reasons that follow, we need not do so today because the district

court’s judgment must be affirmed even under the more stringent standard set forth

in Chapman.

       Although the district court cited the Brecht standard for harmlessness and

not the Chapman standard, it is clear from the district court’s order that it would

have denied relief under either. That is because the district court expressly found

that 132 months’ imprisonment was the appropriate term of incarceration for Hall

regardless of his status under ACCA. The court not only found that a 132-month

sentence was “sufficient, but not greater than necessary, to comply with the

statutory sentencing purposes” in § 3553(a), but also that no lesser sentence would

do because “a sentence below 132 months would not be sufficient to comply with

the statutory sentencing purposes.” Doc. 109 at 7-8 (internal quotation marks

omitted). We know that the Johnson error was harmless beyond a reasonable

doubt because the district court in no uncertain terms found that Hall would receive

exactly the same term of incarceration in the absence of the error.

       Hall argues that we cannot credit the district court’s findings because they

were made years after the original sentencing proceeding. We disagree. We




       4
        Nor have we specifically determined that harmless error review applies at all. Here,
however, Hall does not meaningfully argue that a Johnson error is structural and unsuited for
harmless error review; rather, he disagrees only with the harmless error standard the district court
employed.
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repeatedly have affirmed the denial of relief from a federal sentence based on a

district court’s findings, made on collateral review and without an evidentiary

hearing, that the original sentence would still be appropriate. See, e.g., Smith v.

United States, 565 F.2d 378, 379 (5th Cir. 1978)5 (affirming the denial of a motion

to vacate when the district court found that allegedly incorrect information

regarding the defendant on an FBI rap sheet “had nothing whatever to do with the

sentence imposed,” because “[t]his holding means that the sentence would have

been the same even if convictions were taken into consideration but later found to

be invalid”); Rogers v. United States, 466 F.2d 513, 513-14 (5th Cir. 1972) (same);

see also United States v. Missio, 597 F.2d 60, 61-62 (5th Cir. 1979) (“There is no

point in remanding the matter to the District Judge in the face of his solemn

assertion that the allegedly unconstitutional convictions played no part in, and had

no impact on, the sentence imposed.”).

       Moreover, it is clear from the district court’s order that the court did not

simply revisit the calculations in Hall’s original PSR and sentencing proceedings,

but rather took into account developments in the law—including the recent

amendments to the Sentencing Guidelines and the court’s own response to Johnson

in career offender cases—in evaluating whether Hall’s sentence remained


       5
        Decisions of the former Fifth Circuit rendered prior to the close of business on
September 30, 1981 are binding on this Court. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc).
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appropriate after Johnson. Thus, as in Missio, the district court’s findings make

clear that there is no point in remanding this case to the district court considering

the court’s careful and unequivocal findings that a 132-month term of incarceration

is appropriate notwithstanding the Johnson error the court recognized.

                                          IV.

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




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