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                                                      [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 19-14167
                         Non-Argument Calendar
                       ________________________

              D.C. Docket Nos. 2:16-cv-00033-LGW-BWC,
                      2:12-cr-00005-LGW-BWC


ALEX BENNETT,

                                                           Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                              ( June 22, 2020)



Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit Judges.



PER CURIAM:
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      Alex Bennett, a federal prisoner proceeding with appointed counsel, appeals

the district court’s denial of his pro se 28 U.S.C. § 2255 motion to vacate his

sentence: one imposed under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e).

      Briefly stated, Bennett contends he no longer qualifies as an armed career

offender following the Supreme Court’s decision in Johnson v. United States, 135

S. Ct. 2551 (2015), which struck down as unconstitutionally vague the ACCA’s

residual clause. In denying Bennett relief, the district court found and concluded

that Bennett failed to show -- as required for relief per Johnson by our decision in

Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) -- that he was actually

sentenced under the ACCA’s residual clause. No reversible error has been shown;

we affirm.

      Under the ACCA, a defendant who is convicted of being a felon in

possession of a firearm and who has three or more prior convictions “for a violent

felony or a serious drug offense” is subject to a mandatory minimum 15-year

sentence. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as

a 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
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        (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.

Id. § 924(e)(2)(B). This definition consists of three clauses. Subsection (i) is

known as the “elements clause,” the first part of subsection (ii) is called the

“enumerated offenses clause,” and the second part of subsection (ii) -- “or

otherwise. . . .” -- is known as the “residual clause.” See Beeman, 871 F.3d at

1218.

        In 2012, Bennett pleaded guilty to being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report

(“PSI”) classified Bennett as an armed career offender under the ACCA because

Bennett had at least three prior convictions for a violent felony or a serious drug

offense. The PSI listed Bennett’s prior criminal history, which included (among

other convictions) two convictions for drug-related offenses and a 1998 Georgia

conviction for robbery. Bennett filed no objections to the PSI.

        At the 2013 sentencing hearing, the sentencing court adopted the PSI. The

sentencing court sentenced Bennett below the advisory guidelines range to the 15-

year mandatory minimum sentence under the ACCA. Bennett raised no objection

after his sentence was pronounced and filed no direct appeal.



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      In 2016, Bennett filed pro se the section 2255 motion involved in this

appeal. In pertinent part, Bennett argued that his 1998 Georgia conviction for

robbery by force -- an offense Bennett said fell under the ACCA’s residual clause -

- was no longer a violent felony in the light of the Supreme Court’s decision in

Johnson.

      The magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court deny Bennett’s section 2255 motion. About

Bennett’s 1998 Georgia robbery conviction, the magistrate judge concluded that

Georgia robbery by force under O.C.G.A. § 16-8-40(a), qualified as a violent

felony under the ACCA’s elements clause and, thus, remained an ACCA-predicate

offense after Johnson. In October 2017, the district court adopted the R&R as the

opinion of the court and denied Bennett’s section 2255 motion.

      This court granted Bennett a certificate of appealability (“COA”) on whether

the district court erred in determining that Georgia robbery by force qualified

categorically as a violent felony under the ACCA’s elements clause. On appeal,

however, we vacated the district court’s judgment and ordered a limited remand for

the district court to determine -- in the light of our decision in Beeman -- whether

Bennett could show that it was more likely than not that he was, in fact, sentenced




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under the ACCA’s residual clause. See Bennett v. United States, 769 F. App’x

689 (11th Cir. 2019) (unpublished).

       On limited remand, the district court appointed counsel for Bennett, ordered

additional briefing, and conducted an evidentiary hearing on the Beeman issue. In

August 2019, the district court denied Bennett’s section 2255 motion because

Bennett failed to meet his burden under Beeman. The district court, however,

granted Bennett’s motion for a COA on the Beeman issue.*

       In reviewing the district court’s denial of a section 2255 motion, we review

de novo the district court’s legal conclusions and review the district court’s factual


*
  The district court also purported to grant Bennett a COA on whether the district court erred in
determining that Georgia robbery by force constituted a violent felony under the ACCA’s
elements clause. That issue, however, is not properly before us in this appeal.

As an initial matter, we note that the district court’s October 2017 order ruling on the elements
clause issue had been vacated by this Court. In the August 2019 order now on appellate review,
the district court -- properly -- reached no decision on the elements clause issue: an issue that
would have been outside the scope of this Court’s limited remand.

Moreover, the record makes clear that Bennett is pursuing a claim based purely on the ACCA’s
residual clause and Johnson. At the evidentiary hearing on remand, the district court asked
Bennett’s lawyer about whether Georgia robbery by force would satisfy the ACCA’s elements
clause. In response, Bennett’s lawyer conceded -- and we agree -- that “the Beeman decision has
foreclosed [Bennett’s] ability really to argue a De[s]camp[s] argument against robbery by force.”
For background, see Beeman, 871 F.3d at 1220 (distinguishing between Johnson claims and
claims based on the Supreme Court’s decision in Descamps v. United States, 570 U.S. 254
(2013): “A Johnson claim contends that the defendant was sentenced as an armed career criminal
under the residual clause, while a Descamps claim asserts that the defendant was incorrectly
sentenced as an armed career criminal under the elements or enumerated offense clause.”).

For these reasons, we need not address in this appeal whether Georgia robbery by force truly
qualified -- in 2013 or presently -- as a violent felony under the ACCA’s elements clause.
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findings for clear error. McKay v. United States, 657 F.3d 1190, 1195 (11th Cir.

2011).

       In Beeman, we concluded that “[t]o prove 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.” 871 F.3d at 1221-22. Whether

the sentencing court relied on the residual clause at the time of sentencing is a

question of “historical fact.” Id. at 1224 n.5. “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. at 1222.

       The district court committed no clear error in finding that Bennett failed to

show -- as a matter of historical fact -- that he was sentenced based solely on the

residual clause. As in Beeman, the record in this case is silent on what clause the

sentencing court relied upon in sentencing Bennett under the ACCA. About

Bennett’s ACCA-enhanced sentence, the sentencing court said only that it was

“[Bennett’s] significant criminal history, including two felony convictions for

crimes of violence and multiple drug convictions, that has earned his career

criminal status.” The sentencing court said nothing about what clause (or clauses)

it relied upon in classifying Bennett as an armed career offender. Nor did the PSI

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or the sentencing court’s statement of reasons provide a hint about what clause (or

clauses) the sentencing court had in mind when it imposed the ACCA-enhanced

sentence.

      Bennett admits that the record contains no “enlightening evidence” on the

Beeman issue. Bennett argues, instead, that -- because no court had already held in

2013 that Georgia robbery qualified as a violent felony under the elements clause

-- the sentencing court more likely than not relied on the residual clause in

enhancing Bennett’s sentence under the ACCA.

      The district court rejected this argument and made this finding instead:

      It is just as likely that the Court found at Petitioner’s sentencing that
      his Georgia burglary-by-force conviction qualified as a “violent
      felony” under the elements clause because no court in the Eleventh
      Circuit had held otherwise and the elements of the offense itself seem
      to satisfy the elements clause. The only evidence, then, that Petitioner
      points to in an attempt to satisfy his burden is circumstantial evidence
      that is inconclusive because it cuts both ways.

      We cannot conclude that the district court’s finding is clearly erroneous. In

denying relief in Beeman, we noted that the movant had identified “no precedent

[existing at the time of sentencing] holding, or otherwise making obvious, that a

violation of [the pertinent state criminal statute] qualified as a violent felony only

under the residual clause.” See id. at 1224 (emphasis added). In a similar way,

nothing makes it obvious that only the residual clause in 2013 might have provided


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a rationale for the sentencing judge to apply the ACCA to Bennett’s sentence.

Given the absence of precedent on the issue and the nature and wording of the

pertinent state law, the district court might well have considered in 2013 either the

elements clause or the residual clause, or both, as possible bases for imposing a

sentence under the ACCA.

      In the light of the record and the law that existed in 2013, the district court

committed no error in determining that Bennett failed to satisfy his burden of proof

under Beeman. Accordingly, Bennett has not met his burden for relief under

Johnson. We thus affirm the denial of Bennett’s section 2255 motion to vacate.

      AFFIRMED.




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