             Case: 17-10049      Date Filed: 05/01/2018   Page: 1 of 5


                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-10049
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket Nos. 1:16-cv-02092-TWT,
                         1:08-cr-00393-TWT-RGV-1


JEROME JULIUS WEEKS,
a.k.a. Clarence Royden Weekes,
a.k.a. Jerome J. Weekes,
a.k.a. Jerome Week,

                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                        ________________________

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

                                   (May 1, 2018)

Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Jerome Weeks, a federal prisoner, appeals the dismissal of his successive

motion to vacate his sentence. 28 U.S.C. § 2255. Weeks argued that, in the wake of

Johnson v. United States, 135 S. Ct. 2551 (2015), he lacked sufficient predicate

offenses to have his sentence enhanced under the Armed Career Criminal Act. The

district court ruled that Weeks failed to “meet his burden of showing that he was

sentenced under the residual clause of the [Act]” because “[t]wo of his prior

convictions qualified as drug trafficking offenses” and “[a]t the time of sentencing,

[his] assault and battery and resisting arrest convictions qualified under the

elements test as violent felonies.” We affirm.

      Weeks challenged his sentence of 235 months of imprisonment for

possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1), and for twice

making false statements with regard to a firearms license, id. § 924(a)(1)(A). The

sentencing court classified Weeks as an armed career criminal based on his prior

convictions in Massachusetts courts in 1999 for assault and battery, in 2000 for

distribution of cocaine, in 2001 for possessing with intent to distribute cocaine, and

in 2003 for resisting arrest. See id. § 924(c). The sentencing court rejected Weeks’s

arguments that his convictions for assault and battery, in which the charging

document stated that he “assaulted and beat the victim,” and for resisting arrest did

not count as predicate offenses. See id. § 924(e)(2)(B). After the government

submitted copies of caselaw in which the First Circuit held that both assault and


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battery and resisting arrest categorically qualified as violent felonies, the

sentencing court ruled, “In the absence of extremely persuasive authority, I think

that I should follow the [First] Circuit authority in this area which as I understand it

would count all of those convictions for the armed career criminal enhancement.”

      We affirmed Weeks’s convictions and sentence on appeal. United States v.

Weeks, 442 F. App’x 447 (11th Cir. 2011). We concluded that Weeks’s offense of

resisting arrest, which could have been committed in two ways, qualified as a

violent felony. Id. at 455–56. We stated that resisting arrest satisfied the elements

clause if it involved “using or threatening to use physical force or violence,” Mass.

Gen. Laws ch. 268, § 32B(a)(1), and the offense satisfied the residual clause if it

involved “using any other means which creates a substantial risk of causing bodily

injury, id. § 32B(a)(2). Weeks, 442 F. App’x at 455–56. We declined to address

whether Weeks’s offense of assault and battery under Massachusetts law qualified

as a violent felony “[b]ecause we [had] already determined that Weeks [had] two

prior convictions for serious drug offenses and one prior conviction for a violent

felony.” Id. at 456.

      We review the denial of a motion to vacate de novo and review related

findings of fact for clear error. Castillo v. United States, 200 F.3d 735, 736 (11th

Cir. 2000). To obtain relief based on Johnson, “a movant must establish that his

sentence enhancement turned on the validity of the residual clause.” Beeman v.


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United States, 871 F.3d 1215, 1221 (11th Cir. 2017) (internal quotation marks

omitted and alteration adopted). The movant can satisfy his burden of proof by

establishing that “the sentencing court relied solely on the residual clause, as

opposed to also or solely relying on either the enumerated offenses clause or

elements clause . . . to qualify a prior conviction as a violent felony” or that “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.

      The district court correctly dismissed Weeks’s motion to vacate. Weeks’s

argument that he is entitled to relief under Johnson fails in the absence of any

evidence “to 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 1222. The

record of Weeks’s sentencing hearing supports the finding of the district court that

the sentencing court relied on the elements clause to classify Weeks’s prior

offenses as violent felonies. Because “the evidence does not clearly explain what

happened . . . the party with the burden[, Weeks,] loses.” Id. at 1225 (quoting

Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).

      Weeks argues that our decision on direct appeal satisfies “his burden of

showing that he was ‘sentenced using the residual clause,’” but we disagree. On

appeal, we ruled that Weeks’s conviction for resisting arrest could qualify under

either the elements clause or the residual clause. That ruling does not make it


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“more likely than not” that Weeks’s enhancement was based on the residual clause

as opposed to the elements clause. See id. at 1222.

      We AFFIRM the dismissal of Weeks’s successive motion to vacate.




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