              Case: 17-12056    Date Filed: 05/30/2018   Page: 1 of 7


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 17-12056
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket Nos. 1:16-cv-02079-ODE,
                            1:91-cr-00324-ODE-WLH


LEE DREW BUTLER,

                                                              Petitioner - Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                            Respondent - Appellee.

                           ________________________

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

                                  (May 30, 2018)

Before TJOFLAT, MARCUS and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Lee Drew Butler, a federal prisoner, appeals the District Court’s denial of

his motion to vacate, set aside, or correct sentence, 28 U.S.C. § 2255. Butler
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argues that his prior Georgia armed robbery convictions were no longer Armed

Career Criminal Act (“ACCA”) predicate violent felonies in light of the Supreme

Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

                                          I.

      In reviewing a district court’s denial of a § 2255 motion, we review de novo

the court’s legal conclusions and review the court’s factual findings for clear error.

Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). When

appropriate, we will review de novo whether a defendant’s prior conviction

qualifies as a violent felony under the ACCA. United States v. Hill, 799 F.3d

1318, 1321 (11th Cir. 2015).

      Ordinarily, appellate review is limited to the issues specified in the COA.

Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998). However,

procedural issues that must be resolved before we can address the underlying claim

specified in a COA are presumed to be encompassed in the COA. McCoy v.

United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (reviewing as within the

scope of the COA whether the movant’s § 2255 motion was procedurally barred

when the district court had not addressed the issue). Further, it is well established

that we may affirm the district court on any ground supported by the record,

regardless of the ground stated in the district court’s order or judgment. Castillo v.

United States, 816 F.3d 1300, 1303 (11th Cir. 2016).


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      The ACCA, which imposes heightened prison sentences for certain

defendants with three prior convictions for either violent felonies or serious drug

offenses, 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, the second prong contains the “enumerated crimes” clause and,

finally, 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 residual clause was

unconstitutionally vague, but stated that its holding did not affect the elements

clause. 135 S. Ct. at 2557–58, 2563. The Court later held that its decision in

Johnson applied retroactively to cases on collateral review. Welch v. United

States, 136 S. Ct. 1257, 1268 (2016). Thus, a § 2255 claim challenging a sentence

under the residual clause is known as a “Johnson claim.”

      A challenge to an improper sentence under the elements or enumerated

offenses clauses, on the other hand, is commonly called a “Descamps claim,” after

Descamps v. United States, in which the Supreme Court clarified the “categorical
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approach” for evaluating offense elements. 570 U.S. 254, 260, 133 S. Ct. 2276,

2283 (2013); see also United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017)

(explaining that, under the categorical approach, we “presume that the state

conviction rested upon the least of the acts criminalized by the statute[, a]nd then .

. . decide if the least of the acts criminalized includes the use, attempted use, or

threatened use of physical force against another person”).

      In Beeman v. United States, decided after the District Court ruled in this

case, we clarified that a claim based on Descamps would not trigger the one-year

limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on Johnson

would. 871 F.3d 1215, 1219–20 (11th Cir. 2017). To distinguish between the two,

we explained that “[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 . . . under [the other] clause[s].” Id.

We found that a federal prisoner had raised a timely Johnson claim because he

argued that his offense “historically qualified as an ACCA predicate under the

ACCA’s residual clause,” and because he filed his motion just before the one-year

anniversary of the Johnson decision. Id. at 1220–21.

      Considering the merits of the prisoner’s Johnson claim, we determined that

he did not carry his burden of proving that his sentence enhancement was based on

the residual clause. Id. at 1225. We held that, “[t]o prove a Johnson claim, the


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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.

Further, “if it is just as likely that the sentencing court relied on the ‘elements’ or

‘enumerated crimes’ clauses, solely or as an alternative basis for the enhancement,

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

residual clause.” Id. at 1222. “[C]onclusory” statements lacking support in the

record that the district court “must have relied on the residual clause” are not

sufficient to meet this burden. Id. at 1224. Similarly, “general observations” that

an offense “historically qualified as an ACCA predicate under the ACCA’s

residual clause” do not show that a movant was sentenced as an armed career

criminal “solely because of the residual clause.” Id. (quotation marks and

alterations omitted).

      With respect to what sort of evidence in the record might demonstrate

whether a defendant was sentenced under the residual clause, we explained that

“[e]ach case must be judged on its own facts.” Id. at 1231 n.4. Direct evidence in

the record could include statements by the sentencing judge that the residual clause

was relied upon and was the basis for finding the defendant to be an armed career

criminal. Id. Circumstantial evidence could include unobjected to statements in

the PSI stating that the enumerated crimes and elements clauses did not apply to




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the predicate offense, or statements by the prosecutor in the sentencing record that

those clauses did not apply. Id.

      Here, the record supports the District Court’s denial of Butler’s § 2255

motion. He failed to carry his burden of showing that he was sentenced as an

armed career criminal solely because of the residual clause. Butler’s motion stated

only that the residual clause was a “potential basis” for his ACCA-enhanced

sentence and conceded that the District Court “likely did not offer a specific

finding on which box—elements clause, residual clause, or both—the Georgia

armed robbery conviction fit into.” Nor does he argue on appeal that the District

Court relied on the residual clause, but asserts exclusively that his Georgia armed

robbery convictions were not violent felonies under the elements clause.

Moreover, Butler did not present any evidence that the District Court relied on the

residual clause when sentencing him. The PSI did not specify on which basis it

determined that his prior convictions were violent felonies, the record does not

contain a transcript of his 1992 sentencing hearing, and Butler pointed to no

precedential authority holding that his predicate offenses only qualified as violent

felonies under the residual clause. Thus, although Butler raised a timely Johnson




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claim, he did not meet his burden to show that he was actually sentenced under the

ACCA’s residual clause. Accordingly, we affirm. 1

       AFFIRMED.




       1
        In light of the foregoing, it is unnecessary for us to address whether Butler’s prior
Georgia convictions for armed robbery remain ACCA-predicate violent felonies under the
elements clause.
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