              Case: 17-14445     Date Filed: 10/22/2018   Page: 1 of 6


                                                            [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                  No. 17-14445
                              Non-Argument Calendar
                            ________________________

     D.C. Docket No. 3:14-cv-00408-MCR-EMT; 3:11-cr-00048-MCR-EMT-1

ZACHARY T. FREY,

                                                              Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                            ________________________

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

                                 (October 22, 2018)

Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Zachary Frey appeals the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate his 180-month sentence under the Armed Career Criminal Act (“ACCA”).

We granted a certificate of appealability (“COA”) on the issue of whether the district

court erred in concluding that Indiana burglary qualified as a predicate offense under
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the ACCA and in denying Frey’s claim that Johnson v. United States, 135 S. Ct. 2551

(2015), undermined his conviction and sentence under 18 U.S.C. § 924(e). After

thorough review, we affirm.

      When reviewing a district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo. McKay v. United States,

657 F.3d 1190, 1195 (11th Cir. 2011).

      The 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”

and, finally, what is commonly called the “residual clause.” 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 residual clause because

the residual clause is unconstitutionally vague. Id. at 2563. Thereafter, the Supreme


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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).

      We recently decided that because a Johnson claim argues that the defendant

was sentenced as an armed career criminal under the residual clause, a § 2255 movant

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

sentencing court to impose the ACCA enhancement. Beeman v. United States, 871

F.3d 1215, 1220-22 (11th Cir. 2017). In doing so, we rejected the position that a

Johnson movant met his burden unless the record affirmatively showed that the

district court relied upon the ACCA’s elements clause. Id. at 1223. We instructed

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 offered a record containing 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.   Alternatively, a record may contain

sufficient circumstantial evidence, like unobjected-to 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. We said

that precedent at the time of sentencing would be strong circumstantial evidence if it

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indicated that a prior conviction only qualified as a violent felony under the residual

clause. Id. Precedent issuing after sentencing, however, “casts very little light, if any,

on the key question” of whether the defendant was, in fact, sentenced under the

residual clause only. Id.

      In Beeman’s case, we rejected the district court’s dismissal of the § 2255

motion as untimely because the movant timely raised a Johnson claim. Id. at 1221.

We then addressed the merits of the Johnson claim, even though the district court did

not, because we may affirm on any ground supported by the record, the record was

clear that the movant could not meet his burden, and the movant had not requested a

remand for an evidentiary hearing and agreed to proceed on the record as it was. Id.

Since nothing in the record showed that the sentencing court relied on the residual

clause, rather than the elements clause, and the movant cited no precedent from the

time 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.

      At the time of Frey’s prior convictions, Indiana law provided that a “person

who breaks and enters the building or structure of another person, with intent to

commit a felony in it, commits burglary, a Class C felony.” Ind. Code § 35-43-2-1

(2008). The offense was a Class B felony if the building or structure was a dwelling.

Ind. Code § 35-43-2-1(1)(B) (2008). The Seventh Circuit recently concluded that

Indiana burglary qualifies as a violent felony after Johnson -- based on the enumerated

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crimes clause. United States v. Perry, 862 F.3d 620, 624 (7th Cir. 2017), cert. denied,

138 S. Ct. 1545 (2018).

        Here, Frey cannot meet his burden under Beeman to show that it was more

likely than not that his sentence was enhanced under the ACCA’s residual clause

since, as the record reveals, Frey cannot show that the district court relied solely on

the ACCA’s residual clause when it sentenced him. See Beeman, 871 F.3d at 1221-

22.1 Indeed, the record is silent as to the issue. It reveals that Frey did not object to

the ACCA enhancement, and that neither the presentence investigation report (“PSI”)

nor the district court at sentencing explained or indicated in any way whether Indiana
1
         As an initial matter, we recognize that the government argues that Frey has procedurally
defaulted on his ACCA claim and that we are first bound to address issues of procedural default.
McKay, 657 F.3d at 1195. Under the procedural default doctrine, the defendant typically must
advance any available challenges to his criminal convictions or sentences on direct appeal or is
otherwise precluded from presenting those claims in a federal § 2255 proceeding. Id. at 1196. Here,
however, the government waived the affirmative defense of procedural default by failing to raise it in
its response to Frey’s amended § 2255 motion, which is the basis for this appeal. Howard v. United
States, 374 F.3d 1068, 1073 (11th Cir. 2004) (holding that the government waived a procedural
default argument by failing to raise it in the district court).

         On the other hand, we are addressing the Beeman issue in this appeal even though the
government raised it for the first time on appeal, because Beeman did not issue until after the time for
filing objections to the report and recommendation had passed, and the district court issued its order
only three days after Beeman. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331–32
(11th Cir. 2004) (holding that issues raised for the first time on appeal are generally forfeited, unless:
(1) the issue involves a pure question of law and refusal to consider it would result in a miscarriage
of justice; (2) the party had no opportunity to raise the issue below; (3) the interest of substantial
justice is at stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant
questions of general impact or of great public concern); Samak v. Warden, FCC Coleman-Medium,
766 F.3d 1271, 1273 n.1 (11th Cir. 2014) (applying Access Now in a case involving a 28 U.S.C. §
2241 habeas corpus petition). Further, although the COA we issued did not expressly mention
Beeman, we will tackle it anyway because the government briefed the issue; Frey had the
opportunity to brief it; and Beeman presents a legal question that would not benefit from a remand in
this case, particularly since the district court had already conducted a brief analysis under Beeman
and concluded that Frey likely could not meet the standard. In any event, a COA is not required for
“the defense of a judgment on alternative grounds,” Jennings v. Stephens, 135 S. Ct. 793, 802 (2015),
and 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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burglary was a violent felony under the enumerated crimes clause or residual clause.

Id. at 1221-25. Further, there was no caselaw from this Court, the Seventh Circuit, or

the Supreme Court at the time of Frey’s sentencing that addressed whether Indiana

burglary qualified as a violent felony. Id. at 1224-25 (noting that the movant had not

cited any precedent from the time of sentencing showing that his prior conviction

qualified as a violent felony only under the residual clause). Moreover, neither this

Court nor the Supreme Court has addressed that issue even today. Id. at 1224 n.5

(noting that precedent issued after sentencing “casts very little light, if any,” on the

question of whether the defendant was sentenced under the residual clause). Because

there was no direct evidence in the record or other circumstantial evidence concerning

which clause of the ACCA the district court relied on at sentencing, Frey cannot meet

his burden under Beeman to show that he was sentenced solely under the residual

clause.

      Accordingly, Frey cannot show that he more likely than not was sentenced

under the residual clause, and we affirm the denial of his § 2255 motion.

      AFFIRMED.




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