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                                                               [DO NOT PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-15560
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket Nos. 3:16-cv-00224-MCR-EMT,
                            3:13-cr-00093-MCR-EMT-1


PRESTON LEE JOHNSON, JR.,

                                                                 Petitioner-Appellant,

                                          versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                           ________________________

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

                                   (May 30, 2018)

Before WILSON, JORDAN and HULL, Circuit Judges.

PER CURIAM:

      Preston Johnson, Jr., a federal prisoner, appeals the district court’s denial

and dismissal of his pro se 28 U.S.C. § 2255 motion to vacate his 200-month
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sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

After plain error review, we affirm the district court’s denial of Johnson’s § 2255

motion.

                           I. BACKGROUND FACTS

A.    Conviction and Sentencing

      In June 2014, a jury convicted Johnson of one count of possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).

      Johnson’s presentence investigation report (“PSI”) stated that because

Johnson had at least three prior convictions for violent felonies or serious drug

offenses, he qualified as an armed career criminal. The PSI identified these six

Florida convictions: (1) resisting arrest with violence and battery on a law

enforcement officer in 1988 (“resisting arrest with violence”); (2) burglary,

trespass, and battery in 1989; (3) burglary of a dwelling in 1989; (4) possession

and sale of cocaine in 1990; (5) battery on a law enforcement officer in 1995

(“1995 BOLEO”); and (6) battery in 1999. Johnson did not file written objections

to the PSI. As a result of his armed career criminal designation under the ACCA,

Johnson’s offense level was increased from 16 to 33, and he was subject to a

statutory mandatory minimum of fifteen years (or 180 months) in prison.

      At his September 2014 sentencing, Johnson, through counsel, stated that he

had no factual or legal objections to the PSI and affirmatively acknowledged that


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he had three prior convictions that qualified him for the ACCA enhancement. The

sentencing court agreed with defense counsel that Johnson had three qualifying

prior convictions, but concluded that Johnson’s 1999 battery conviction did not

qualify and that the PSI would be corrected to omit that conviction. Otherwise, the

sentencing court found that the PSI was accurate as modified in open court. The

PSI, the parties, and the sentencing court did not reference, much less discuss,

under which ACCA clause any of his five remaining prior convictions qualified.

      The sentencing court calculated an advisory guidelines range of 188 to 235

months’ imprisonment. Based on the seriousness of Johnson’s criminal history,

some of which was not accounted for in the guidelines calculations, the sentencing

court denied Johnson’s request for a downward variance to the mandatory-

minimum 180-month sentence and instead imposed a 200-month sentence.

B.    Direct Appeal

      On direct appeal, Johnson raised various trial issues, but did not challenge

his ACCA-enhanced sentence at all. This Court affirmed in an opinion dated June

24, 2015. See United States v. Johnson, 615 F. App’x 582, 583 (11th Cir. 2015).

      The following day, the Supreme Court issued its decision in Johnson v.

United States, which invalidated the ACCA’s residual clause as unconstitutionally

vague. See Johnson, 576 U.S. ___, ___, 135 S. Ct. 2551, 2563 (2015).

C.    Section 2255 Proceedings as to Burglary Convictions


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      In May 2016, Johnson pro se filed the present § 2255 motion, arguing that

he no longer had three qualifying ACCA predicate convictions in light of Johnson.

Johnson contended that the sentencing court relied on the ACCA’s now-void

residual clause to find that his Florida burglary convictions qualified as violent

felonies.

      A magistrate judge sua sponte reviewed Johnson’s motion and issued a

report recommending that Johnson’s motion be summarily dismissed. The report

noted that the PSI listed six prior convictions that qualified Johnson for the ACCA

enhancement, but that Johnson challenged only the use of his two burglary

convictions.

      The report found that Johnson’s convictions for sale of cocaine and resisting

arrest with violence were unaffected by Johnson’s invalidation of the ACCA’s

residual clause. Thus, only one more qualifying conviction was needed to sustain

the ACCA enhancement. The report found that Johnson’s 1995 BOLEO

conviction qualified as a violent felony “under the elements clause,” citing to

Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1339-40 (11th Cir.

2013), abrogated on other grounds by Johnson, 135 S. Ct. at 2557-58, 2563. In so

doing, the report pointed to undisputed facts in the PSI indicating that Johnson had

actually and intentionally touched or struck a corrections officer “causing bodily




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harm to her,” which qualified as the third predicate offense.1 Thus, the report

concluded, even if Johnson’s burglary convictions no longer qualified after

Johnson, he still had three other convictions that supported the ACCA

enhancement.

       On June 6, 2016, the magistrate judge issued her report and notified Johnson

that he had 14 days to file objections and that a failure to do so would waive his

right to challenge on appeal any unobjected-to factual and legal conclusions, citing

Eleventh Circuit Rule 3-1. Thereafter, the district court granted Johnson an

additional thirty days, or through and including July 29, 2016, to file his objections

to the report. Johnson, however, did not file any objections. On August 2, 2016,

the district court adopted the report and summarily denied and dismissed Johnson’s

§ 2255 motion.

       On January 31, 2017, this Court granted Johnson a certificate of

appealability (“COA”) as to “whether the district court erred in denying Johnson’s

28 U.S.C. § 2255 motion on the basis that Johnson had three qualifying

convictions under the ACCA following Johnson.”2


       1
         The report noted that Johnson’s 1999 battery conviction also qualified under the
ACCA’s elements clause using the modified categorical approach because the undisputed PSI
facts stated that Johnson had hit his victim. The sentencing court, however, explicitly found that
this 1999 battery conviction did not qualify as an ACCA predicate and did not use it to support
the ACCA enhancement. Thus, we do not consider this 1999 battery conviction in this appeal.
       2
         We deny Johnson’s motion to strike the government’s response brief for briefing issues
outside the scope of the COA. The COA encompasses the underlying threshold issues raised in
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                             II. STANDARD OF REVIEW

       In reviewing a district court’s denial of a § 2255 motion, this Court

ordinarily reviews the district court’s legal conclusions de novo and its factual

findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir.

2014). It is a question of law whether a prior conviction is a violent felony under

the ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016).

       In Johnson’s case, however, there are two independent reasons this Court

could conclude Johnson’s claim is not preserved for appellate review at all. First,

in the district court, Johnson’s § 2255 motion challenged only the sentencing

court’s reliance on his prior burglary convictions to support the ACCA

enhancement and did not raise any issue as to the sentencing court’s reliance on his

1995 BOLEO conviction. Thus, we could conclude that Johnson has waived his

Johnson challenge to his 1995 BOLEO conviction. See Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quotation marks omitted).

       Second, Johnson failed to object to the magistrate judge’s report and

recommendation focusing on his BOLEO conviction, despite being warned of the

consequences and being given an extra thirty days to file objections. Generally,


the government’s brief—the effect of Johnson’s failure to object to the magistrate judge’s report,
and what burden of proof Johnson must satisfy to prevail on his Johnson claim—all of which are
threshold procedural matters that must be resolved before this Court can reach the merits of the
issue specified in the COA. See McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir.
2001). In any event, given the parties have briefed these issues, and to the extent necessary, we
alternatively sua sponte expand the COA accordlingly.
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under such circumstances, a party “waives the right to challenge on appeal the

district court’s order based upon unobjected-to factual and legal conclusions.” See

11th Cir. R. 3-1 (providing that “the court may review on appeal for plain error if

necessary in the interests of justice”).3 Because we conclude in this case that the

interests of justice are served by allowing Johnson’s appeal to proceed, we exercise

our discretion to review his claims for plain error.

       To establish plain error, an appellant must show that there was (1) error,

(2) that was “plain—that is to say, clear or obvious,” and (3) that affected the

appellant’s substantial rights. Molina-Martinez v. United States, 578 U.S. ___, 136

S. Ct. 1338, 1342-43 (2016). If these three prongs are met, this Court has the

discretion to remedy the error if it seriously affected the fairness, integrity, or

public reputation of judicial proceedings. Id. Because the error must be obvious

and clear under current law, “there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). In addition, we can

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

1300, 1303 (11th Cir. 2016).

                                    III. DISCUSSION


       3
         The government contends Johnson procedurally defaulted on his Johnson claim because
he failed to raise it in his direct appeal. We decline to address the procedural default issue
because his Johnson claim loses on the merits in any case.
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A.    General Principles

      The ACCA provides that a person convicted under 18 U.S.C. § 922(g) faces

a fifteen-year mandatory minimum prison term if he has three or more prior

convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).

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 referred to as the

“elements” clause, while the second prong contains the “enumerated crimes”

clause and what is commonly called the “residual” clause. United States v. Owens,

672 F.3d 966, 968 (11th Cir. 2012).

      In Johnson, the Supreme Court held that the ACCA’s residual clause was

unconstitutionally vague. 135 S. Ct. at 2557-58, 2563. The Supreme Court

clarified, however, that its decision did not call into question the application of the

ACCA’s elements or enumerated crimes clauses. Id. at 2563. Subsequently, the

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

retroactively to cases on collateral review. Welch v. United States, 578 U.S. ___,

___, 136 S. Ct. 1257, 1268 (2016).

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       To assert a claim based on Johnson, the movant must contend that he was

sentenced under the ACCA’s now-void residual clause. Beeman v. United States,

871 F.3d 1215, 1220 (11th Cir. 2017). A claim that the movant was incorrectly

sentenced under the ACCA’s elements or enumerated crimes clauses is not a

Johnson claim but rather a Descamps claim. 4 Id. at 1220.

B.     Beeman

       Under our Court’s binding precedent, to prevail on a Johnson claim, “the

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

that led to the sentencing court’s enhancement of his sentence.” Id. at 1221-22. If

it is just as likely that the sentencing court relied on the elements or enumerated

offenses clause, solely or as an alternative basis for the enhancement, then the

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

clause.” Id. This inquiry is a question of “historical fact” and a decision today that

a prior conviction “no longer qualifies under present law as a violent felony under

the elements clause (and thus could now qualify only under the defunct residual

clause) would be a decision that casts very little light, if any, on the key question of

historical fact . . . .” Id. at 1224 n.5.

       A § 2255 movant can carry his burden of proof “only (1) if the sentencing

court relied solely on the residual clause, as opposed to also or solely relying on


       4
           Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276 (2013).
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either the enumerated offenses clause or the elements clause (neither of which

were called into question by Johnson) to qualify a prior conviction as a violent

felony, and (2) if there were not at least three other prior convictions that could

have qualified under either of those two clauses as a violent felony, or as a serious

drug offense.” Id. at 1221. If the record is unclear or silent as to whether the

sentencing court relied on the residual clause, then the movant has not met his

burden, and his claim must be denied. Id. at 1224-25.

      Here, Johnson does not dispute that at the time of his sentencing he had two

qualifying prior felony convictions: (1) a 1988 Florida conviction for resisting

arrest with violence, which qualified as a violent felony under the ACCA’s

elements clause; and (2) a 1990 Florida conviction for possession and sale of

cocaine, which qualified under the ACCA’s definition of a serious drug offense.

Thus, Johnson’s Johnson claim is based solely on the third qualifying predicate

conviction.

      Johnson points to his 1995 felony BOLEO conviction under Florida Statutes

§§ 783.07(2)(b) and 784.03(1)(a). Under Florida law, a misdemeanor battery

occurs when a person either:

      1. Actually and intentionally touches or strikes another person against
      the will of the other; or

      2. Intentionally causes bodily harm to another person.



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Fla. Stat. § 784.03(1)(a)(1)-(2) (emphasis added). The offense becomes a felony

when the person knowingly commits the battery on a law enforcement officer. Fla.

Stat. § 784.07(2)(b).

      After Curtis Johnson, a battery under § 784.03(1)(a)(1), which includes mere

touching of the victim, does not categorically qualify as a violent felony under the

ACCA’s elements clause because unwanted touching does not constitute the “use

of physical force.” See Curtis Johnson v. United States, 559 U.S. 133, 135-40, 130

S. Ct. 1265, 1268-71 (2010). In Curtis Johnson, the Supreme Court explained that

the term “physical force” in the ACCA’s elements clause means “violent force—

that is, force capable of causing physical pain or injury to another person.” Id. at

140, 130 S. Ct. at 1271. The Supreme Court did not, however, address a bodily

harm battery under § 784.03(1)(a)(2). Id. at 136-37, 130 S. Ct. at 1269. Instead,

citing Shepard, the Supreme Court explained that “[s]ince nothing in the record of

Johnson’s 2003 battery conviction permitted the District Court to conclude that it

rested upon anything more than the least of these acts [of touching, striking, or

causing bodily harm],” the only question was whether actually and intentionally

touching the victim constituted the use of physical force within the meaning of the

ACCA’s elements clause. Id. at 137, 130 S. Ct. at 1269.

      In this case, the problem for Johnson is the PSI’s undisputed description of

Johnson’s BOLEO conviction. Specifically, the description in the PSI stated that,


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“[a]ccording to Court records,” Johnson “actually and intentionally touched or

struck” the officer, “causing bodily harm to her,” language that tracks both

subsections of the battery statute.

       Furthermore, at the time of Johnson’s 2014 sentencing, this Court had

concluded, using the modified categorical approach, that a BOLEO conviction

under Florida Statutes § 784.03(1)(a) in which the undisputed PSI facts indicated

the defendant had struck the victim with sufficient force to injure her wrist

qualified as a violent felony under the ACCA’s elements clause. See Turner, 709

F.3d at 1339-40. 5

       Moreover, Johnson has not presented any indication, much less evidence,

that the sentencing court actually relied on the ACCA’s residual clause to find that

his Florida BOLEO conviction was a qualifying predicate.

       In other words, it is at least as likely, if not more so, that the sentencing

court, in light of the Supreme Court’s Curtis Johnson and this Court’s Turner,

relied on the PSI’s undisputed description of Johnson’s BOLEO conviction and

found, using the modified categorical approach, that the BOLEO conviction

       5
        In August 2015, after Johnson was decided, this Court noted that Turner’s holding that a
Florida BOLEO conviction qualified as a violent felony under the now-void residual clause was
abrogated by Johnson. United States v. Hill, 799 F.3d 1318, 1321 n.1 (11th Cir. 2015). Johnson,
however, did not address the ACCA’s elements clause. Furthermore, the Hill Court noted that a
Florida battery could be committed by touching the victim, striking the victim, or causing the
victim bodily harm and that the Supreme Court in Curtis Johnson had not addressed the modified
categorical approach. Id. at 1323 n.2. Thus, neither Curtis Johnson nor Johnson abrogated
Turner’s use of the modified categorical approach to determine whether Turner’s Florida
BOLEO conviction qualified under the elements clause.
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qualified under the ACCA’s elements clause. Under these circumstances, Johnson

has “failed to prove—that it [is] more likely than not—he in fact was sentenced as

an armed career criminal under the residual clause.” See Beeman, 871 F.3d at

1225. Because under our Beeman precedent Johnson failed to carry his burden of

proof, the district court did not commit reversible error in denying and dismissing

his § 2255 motion.

      Alternatively, even without Beeman and even if we examined Johnson’s

1995 Florida BOLEO conviction under current law (rather than as a historical

fact), Johnson has not shown that his BOLEO conviction plainly does not qualify

under the ACCA’s elements clause or that the district court plainly erred in

counting that offense. We explain why.

C.    Bodily Harm Battery under Florida Statutes § 784.03(1)(a)(2)

      To qualify under the ACCA’s elements clause, a felony crime must “ha[ve]

as an element the use, attempted use, or threatened use of physical force against the

person of another.” 18 U.S.C. § 924(c)(2)(B)(1). As the Supreme Court held in

Curtis Johnson, the phrase “physical force” in the elements clause means violent

force, which is “force capable of causing physical pain or injury to another

person.” 559 U.S. at 140, 130 S. Ct. at 1265. We also know from Curtis Johnson

that a battery under Florida Statutes § 784.03(1) does not categorically qualify

under the ACCA’s elements clause because a person may be convicted of battery


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under § 784.03(1)(a)(1) for a mere unwanted touch. 559 U.S. at 137-41, 130 S. Ct.

at 1269-71; see also United States v. Vail-Bailon, 868 F.3d 1293, 1298 (11th Cir.

2017) (en banc).

       Here, however, the parties do not dispute that § 784.03 is a divisible statute.

Based on the statute’s structure, we agree. See United States v. Davis, 875 F.3d

592, 598 (11th Cir. 2017) (stating that the statute on its face may resolve whether

the statute is divisible); see also Descamps v. United States, 570 U.S. 254, 260,

263, 133 S. Ct. 2276, 2283 (2013) (stating a statute is divisible when it “list[s]

potential offense elements in the alternative,” thereby creating multiple crimes);

Mathis v. United States, 579 U.S. ___, ___, 136 S. Ct. 2243, 2249 (2016).

Subsections (1) and (2) of § 784.03(1)(a) list two distinct battery crimes—

(1) battery by touching or striking and (2) battery by causing bodily harm. 6

       We note also that Florida courts interpreting § 784.03(1)(a) have treated the

statute’s subsections as alternative elements of the crime of battery. See, e.g.,

Jaimes v. State, 51 So.3d 445, 449-51 (Fla. 2010); State v. Weaver, 957 So.2d 586,

587-89 (Fla. 2007). In addition, Florida’s standard jury instruction for battery

shows that the jury is specifically instructed to find as an element either that the

defendant intentionally touched or struck the victim against his or her will or that

the defendant intentionally caused bodily harm to the victim, indicating that these

       6
        We need not, and therefore do not, address whether battery by “touching or striking”
under § 784.03(1)(a)(1) is further divisible.
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are separate elements, rather than two means of committing the same element. See

Fla. Std. Jury Instr. (Crim.) 8.3. And, because the statute of conviction is divisible,

the district court could use the modified categorical approach to determine whether

Johnson’s BOLEO conviction qualified under the elements clause. See Descamps,

570 U.S. at 260-61, 263, 133 S. Ct. at 2283, 2285.

         Further, Johnson does not argue that bodily harm battery under

§ 784.03(1)(a)(2) fails to satisfy the ACCA’s elements clause—that is, whether the

element of “[i]ntentionally caus[ing] bodily harm” necessarily include the use,

attempted use, or threatened use of physical force. As already noted, this Court in

Turner concluded that a § 784.03(1)(a)(2) offense has as an element the use of

“physical force.” Thus, at a minimum, Johnson has not shown plain error on this

point.

D.       District Court’s Use of PSI Facts

         Johnson’s sole argument on appeal is that the district court, in using the

modified categorical approach, was limited to Shepard documents to determine the

statutory basis for his BOLEO conviction—whether he was convicted of touching

or striking the officer under § 784.03(1)(a)(1) or of intentionally causing bodily

harm to the officer under § 784.03(1)(a)(2)—and plainly erred by consulting

undisputed facts in his PSI to make that determination. We disagree.




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      This Court has repeatedly held that, in addition to Shepard documents, a

court may consider the PSI’s undisputed facts in determining whether a prior

conviction qualifies as an ACCA predicate offense, including which element of a

divisible statute formed the basis for the prior conviction under the modified

categorical approach. See, e.g., In re Welch, 884 F.3d 1319, 1325 (11th Cir.

2018); In re Hires, 825 F.3d 1297, 1302 (11th Cir. 2016); United States v.

Ramirez-Flores, 743 F.3d 816, 820-21 (11th Cir. 2014); Rozier v. United States,

701 F.3d 681, 686 (11th Cir. 2012); United States v. Beckles, 565 F.3d 832, 843-

44 (11th Cir. 2009); United States v. Bennett, 472 F.3d 825, 832-34 (11th Cir.

2006); United States v. Wade, 458 F.3d 1273, 1277-78 (11th Cir. 2006).

      Indeed, in Turner, this Court, applying the modified categorical approach,

relied on undisputed PSI facts to conclude that the defendant’s BOLEO conviction

in that case qualified under the ACCA’s elements clause. See Turner, 709 F.3d at

1336, 1339-40. In light of Turner and our other binding precedent, we cannot say

the district court in this case plainly erred by looking to the PSI’s undisputed

description of Johnson’s BOLEO conviction.

      Here, the PSI’s description indicates that Johnson not only touched or struck

an officer, but also caused bodily harm to an officer. Specifically, according to the

undisputed facts in the PSI, state court records showed that Johnson “actually and

intentionally touched or struck” the officer, “causing bodily harm to her . . . .”


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Thus, the PSI demonstrates that regardless of whether Johnson was convicted of

touching the officer or striking the officer, he was also convicted under

§ 784.03(1)(a)(2) of causing the officer bodily harm.

                               III. CONCLUSION

      For these reasons, Johnson has not shown that he is entitled to relief under

Johnson. Accordingly, we affirm the district court’s denial and dismissal of

Johnson’s § 2255 motion challenging his ACCA sentence based on Johnson.

      AFFIRMED.




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