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                                                          [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13116
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket Nos. 1:16-cv-02225-ODE,
                         1:09-cr-00081-ODE-LTW-1


JUAN RAMON WINFREY,

                                                          Petitioner-Appellant,


                                  versus


UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                             (August 9, 2018)

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.

PER CURIAM:
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      Juan Ramon Winfrey, a federal prisoner represented by counsel, appeals the

district court’s denial of his counseled 28 U.S.C. § 2255 motion to vacate, set

aside, or correct his 240-month sentence on his Count Three felon-in-possession-

of-a-firearm conviction under 18 U.S.C. § 922(g)(1). Winfrey’s prior Georgia

felony convictions subjected him to a mandatory minimum fifteen-year sentence

and increased his statutory maximum sentence on Count Three from ten years to

life imprisonment under the Armed Career Criminal Act (“ACCA”). After review,

we affirm the district court’s ruling that Winfrey’s § 2255 motion was timely, but

vacate the district court’s order denying Winfrey’s § 2255 motion on the merits

and remand for further proceedings consistent with this opinion.

                           I. BACKGROUND FACTS

A.    Conviction

      In 2008, Winfrey and his co-defendant, Umar Yamini, approached a man at

a gas station, robbed the man at gunpoint, and drove away in the man’s Chevrolet

Monte Carlo. A short time later, police officers spotted and pulled over the Monte

Carlo, which was being driven by Winfrey. After a brief pursuit on foot, Winfrey

and Yamini were arrested. The victim later identified Winfrey as the man who

brandished the firearm and took his car keys and money.

      In 2009, a federal grand jury charged Winfrey in three counts with: (1)

aiding and abetting carjacking, in violation of 18 U.S.C. §§ 2119 and 2 (“Count


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One”); (2) aiding and abetting possession and brandishing of a firearm during and

in relation to a crime of violence, namely the carjacking charged in Count One, in

violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (“Count Two”); and (3) possession

of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (“Count

Three”). In 2010, after a three-day trial, a jury convicted Winfrey on all three

counts.

      As to Count Three, the indictment listed four prior Georgia convictions,

including two robbery convictions in 1989 and 1992, respectively, a theft by taking

conviction in 1991, and an aggravated assault conviction in 1993. In this § 2255

case, Winfrey challenges only his 240-month sentence as to Count Three. We

review how that sentence was calculated.

B.    Sentencing

      Winfrey’s presentence investigation report (“PSI”) separately calculated a

total offense level of 24 for Counts One (the carjacking offense) and Three (the

felon-in-possession offense). The PSI applied a two-level multiple-count

adjustment pursuant to U.S.S.G. § 3D1.4 for a combined total offense level of 26

for Counts One and Three. Pursuant to U.S.S.G. § 2K2.4(b), the PSI did not

include Count 2 (the § 924(c) firearm offense) because the mandatory minimum

seven-year consecutive sentence for that offense was set by statute.




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      The PSI also stated that, as to Count Three, Winfrey qualified as an armed

career criminal because he had three prior Georgia convictions for a crime of

violence, specifically: (1) robbery in 1989; (2) robbery in 1992; and (3) aggravated

assault in 1993.

      As to the 1989 robbery conviction, the PSI reports that in August 1988,

Winfrey was arrested and charged with armed robbery and murder after he and

three other individuals stole a motor vehicle from the victim “by use of a revolver

which resulted in the death of said victim.” In 1989, Winfrey pled guilty to a

reduced charge of robbery and was sentenced to ten years’ probation as a first

offender. According to the state court plea colloquy, which Winfrey’s counsel

submitted to the federal sentencing court, the murder charge was moved to the

dead docket, and Winfrey entered an Alford plea to the robbery because Winfrey

only hit the victim one time and got back in the car and did not know “the trigger

man” or that a murder was going to take place.

      As to the 1992 robbery conviction, Winfrey was arrested for robbery after

stealing a victim’s wallet and money “by force and intimidation.” In May 1992,

Winfrey pled guilty to robbery and was sentenced to three years’ probation.

      As to the February 1993 aggravated assault conviction, Winfrey was arrested

after he “physically assaulted” the victim “while demanding his property.”

Winfrey pled guilty in 1993 and was sentenced to ten years in prison.


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       Only Winfrey’s 1993 aggravated assault conviction and his 2002 criminal

trespass and stalking conviction received criminal history points—3 points and 1

point, respectively—for a total of 4 points, which resulted in criminal history

category of III. Without the armed career criminal designation, Winfrey’s total

offense level of 26 and criminal history category of III would have yielded an

advisory guidelines range of 78 to 97 months for Counts One and Three. See

U.S.S.G. ch. 5, pt. A, sentencing table (2008).

       Because Winfrey was an “armed career criminal,” however, he was assigned

a criminal history category of VI, pursuant to U.S.S.G. § 4B1.4(c)(2).1 Also as a

result of Winfrey’s armed career criminal status, the PSI recommended a total

offense level of 34, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), which yielded an

advisory guidelines range of 262 to 327 months in prison for Counts One and

Three.

       The PSI also stated that as to the carjacking conviction in Count One, the

statutory maximum was 15 years and that as to the felon-in-possession conviction

in Count Three, under the ACCA, the mandatory minimum was 15 years and the

maximum was life. As to the § 924(c) firearm offense in Count Two, the




       1
         Under U.S.S.G. § 4B1.4, “[a] defendant who is subject to an enhanced sentence under
18 U.S.C. § 924(e) [the ACCA] is an armed career criminal,” and may be subject to an increased
offense level and criminal history category. See U.S.S.G. § 4B1.4(a)-(c).
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mandatory minimum sentence was seven years, which was required to be served

consecutively to any other sentence.2

       Winfrey did not object to: (1) the PSI’s description of his conduct giving rise

to his Georgia felonies; or (2) the PSI’s designation of him as an armed career

criminal or to any of his ACCA-qualifying predicate convictions. Moreover, at his

April 29, 2010 sentencing hearing, Winfrey agreed that he qualified as an armed

career criminal under the Sentencing Guidelines and the ACCA. As a

consequence, the district court did not discuss the ACCA sentence enhancement as

to Count Three.

       After resolving Winfrey’s objections, which are not relevant to the issues

raised in his § 2255 motion, the district court calculated an advisory guidelines

range of 262 to 327 months as to Counts One and Three and granted Winfrey a 22-

month downward variance. Specifically, the district court imposed: (1) a 180-

month sentence on the carjacking conviction in Count One, which was the

statutory maximum, (2) a 240-month sentence on the § 922(g)(1) felon-in-

possession conviction in Count Three, to run concurrently with Count One; and (3)

a mandatory consecutive 84-month sentence on his § 924(c) firearm conviction in

Count Two.



       2
        In his § 2255 motion and on appeal, Winfrey makes no challenge to his conviction or
sentence on Count Two.
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B.    Direct Appeal

      Winfrey appealed his convictions and sentences, but did not raise any issue

as to his ACCA-enhanced sentence on Count Three or the calculation of his

advisory guidelines range under U.S.S.G. § 4B1.4 as to Counts One and Three. On

November 19, 2010, this Court affirmed Winfrey’s convictions and sentences.

United States v. Winfrey, 403 F. App’x 432 (11th Cir. 2010). Winfrey’s

convictions became final on February 17, 2011, ninety days after the time to file a

petition for certiorari in the Supreme Court expired.

C.    Section 2255 Proceedings

      On June 26, 2015, 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).

      On June 24, 2016, Winfrey filed this counseled § 2255 motion, arguing that

his 240-month sentence as to his § 922(g)(1) felon-in-possession conviction in

Count Three was no longer valid after Johnson. Specifically, Winfrey argued that,

although his prior Georgia convictions for robbery and aggravated assault

“historically qualified as ACCA predicates,” they “no longer” qualified as violent

felonies under the ACCA because “the ACCA’s residual clause, the potential basis

for Mr. Winfrey’s ACCA-enhanced sentence,” was invalidated by Johnson and




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because his prior convictions did not qualify under the ACCA’s still-valid elements

clause.

      In opposing Winfrey’s § 2255 motion, the government filed copies of state

court records pertaining to Winfrey’s prior convictions, including the charging

documents and final dispositions, which showed that Winfrey was convicted of:

(1) robbery “by the use of force” in 1992; (2) aggravated assault “by striking and

beating [the victim] with his hands and fists” in 1993; and (3) and robbery “by

intimidation,” the lesser included offense of armed robbery in 1988.

      The district court denied Winfrey’s § 2255 motion. The district court

concluded that Winfrey’s claim based on Johnson was timely. The district court

denied Winfrey’s Johnson claim without addressing Winfrey’s burden of proof.

Instead, the district court concluded that the Georgia offenses of robbery by force,

robbery by intimidation, and aggravated assault all qualified as violent felonies

under the ACCA’s elements clause and that Winfrey’s sentence on Count Three

was properly enhanced under the ACCA.

      In the same order, the district court acknowledged the “dearth of Eleventh

Circuit guidance in this case” and granted a certificate of appealability (“COA”) on

“whether Georgia robbery by force, robbery by intimidation, and aggravated

assault qualify as ‘violent felonies’ for the purposes of the ACCA.”




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       After the district court’s § 2255 decision in this case, and while Winfrey’s

appeal was pending, this Court decided Beeman v. United States, 871 F.3d 1215

(11th Cir. 2017). Beeman addressed the timeliness of a § 2255 movant’s Johnson

claim (as opposed to a claim based on Descamps v. United States, 570 U.S. 254,

133 S. Ct. 2276 (2013)) under 28 U.S.C. § 2255(f) and also the burden of proof a

§ 2255 movant must meet to prevail on a Johnson claim. Beeman, 871 F.3d at

1219-25. Based on Beeman, the government’s appeal brief argues that Winfrey’s

§ 2255 motion raised an untimely Descamps claim rather than a timely Johnson

claim, and, alternatively, that Winfrey did not carry his burden of proof to establish

a Johnson claim. 3

                                     II. DISCUSSION

A.     Standard of Review

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

reviews de novo a district court’s determination whether a § 2255 motion is time-

barred. Beeman, 871 F.3d at 1219.



       3
         The district court’s COA encompasses the underlying threshold procedural issues raised
in the government’s brief, including whether Winfrey’s has raised a timely Johnson claim and
what burden of proof Winfrey must meet to prevail on a Johnson claim, which 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).
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B.    General Principles

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

firearm offense 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).

      On June 26, 2015, the Supreme Court in Johnson held that the ACCA’s

residual clause was unconstitutionally vague. 576 U.S. at ____, 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 ____, 135 S. Ct. at 2563. Subsequently, the Supreme Court held that

Johnson announced a new substantive rule that applied retroactively to cases on



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collateral review. Welch v. United States, 578 U.S. ___, ___, 136 S. Ct. 1257,

1268 (2016).

B.    Time Bar under § 2255(f)

      Under 28 U.S.C. § 2255(f), the one-year statute of limitations for filing a

§ 2255 motion begins to run on the latest of several possible triggering dates,

including the date on which the judgment becomes final or “the date on which the

right asserted was initially recognized by the Supreme Court . . . and made

retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(1), (3).

As this Court explained in Beeman, the § 2255(f) statute of limitations “requires a

claim-by-claim approach to determine timeliness.” Beeman, 871 F.3d at 1219

(quotation marks omitted). Thus, if a § 2255 movant asserts that his motion is

timely because he filed it within one year of the Supreme Court’s issuance of a

decision recognizing a new right, the Court must determine whether each claim

asserted in the § 2255 motion depends on that new Supreme Court decision. Id.

      Beeman also explained the difference between a claim based on Johnson and

a claim based on Descamps. To assert a claim based on Johnson, the movant must

contend that he was sentenced under the ACCA’s now-void residual clause. Id. at

1220. 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. Id. at 1220. In Descamps, the Supreme Court held that when the


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statute of conviction has only a “single, indivisible set of elements,” sentencing

courts may consider only the statute’s language to determine whether the

conviction qualifies as a “violent felony” under the ACCA’s elements clause.

Descamps, 570 U.S. at 258, 133 S. Ct. at 2282. This Court has held that Descamps

applies retroactively to cases on collateral review, but has noted that Descamps did

not set out a constitutional right newly recognized by the Supreme Court. See

Mays v. United States, 817 F.3d 728, 733-34 (11th Cir. 2016).

      Based on the foregoing, to be timely under § 2255(f)(3), a § 2255 motion

raising a Johnson claim must be filed within one year of the Johnson decision.

Beeman, 871 F.3d at 1219. A Descamps claim, on the other hand, “cannot rely on

subsection (f)(3) as the starting point for the calculation of the limitations period”

and the movant “must file his motion within one year of the other trigger dates set

out in § 2255(f).” Id. at 1220-21 (concluding that the movant’s Descamps claim

was untimely but that he raised a timely Johnson claim where the § 2255 motion

was filed 19 days before the one-year anniversary of Johnson).

      Here, the district court correctly concluded that Winfrey’s § 2255 motion

was timely to the extent it raised a Johnson claim that he was sentenced under the

ACCA’s now-void residual clause. Winfrey’s conviction became final on

February 17, 2011, ninety days after the time to file a petition for certiorari in the

Supreme Court expired. See Winfrey, 403 F. App’x at 432; Kaufmann v. United


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States, 282 F.3d 1336, 1339 (11th Cir. 2002). Winfrey filed his § 2255 motion on

June 24, 2016, well past the one-year deadline for challenging final convictions,

but within the deadline for challenging a sentence under Johnson, which was

decided on June 26, 2015.

      We note, however, that to the extent Winfrey attempted to bring a Descamps

claim—a claim that he was wrongly sentenced under the elements clause of the

ACCA—that claim, like the Descamps claim in Beeman, is untimely.

C.    Beeman and Winfrey’s Johnson Claim

      Under our Court’s binding precedent in Beeman, 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.”

See Beeman, 871 F.3d 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. at 1222.

      Each case must be judged on its own record, and different kinds of evidence

can be used to show that a sentencing court actually relied on the residual clause.

Id. at 1224 n.4. For example, a record may contain 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. Further, a record may contain sufficient


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circumstantial evidence, such as unobjected-to PSI statements recommending that

the enumerated offenses clause or the elements clause did not apply or concessions

made by the prosecutor that those two clauses did not apply. Id. In addition, the

movant may point to precedent at the time of the sentencing “holding, or otherwise

making obvious,” that the prior conviction “qualified as a violent felony only under

the residual clause.” Id. at 1224.

       Importantly, this inquiry is a question of “historical fact”—whether at the

time of sentencing the defendant was sentenced solely under the residual clause.

Id. at 1224 n.5. 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.

       In sum, 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 either the enumerated offenses clause or 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




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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, because Beeman was decided after the district court ruled on

Winfrey’s § 2255 motion, the parties did not have an opportunity to address the

import of Beeman in the district court. Further, the district court did not have an

opportunity to apply Beeman’s standard to Winfrey’s Johnson claim. That is, the

district court did not address whether Winfrey had carried his burden to prove,

more likely than not, that the sentencing court in 2009, as a matter of “historical

fact,” relied solely upon the residual clause to find that Winfrey’s Georgia

aggravated assault, robbery-by-force, and robbery-by-intimidation convictions

qualified as violent felonies under the ACCA. See Beeman, 871 F.3d at 1224 n.5.

If Winfrey cannot make this showing, he is not entitled to relief under Johnson

even if his predicate Georgia convictions no longer qualify as violent felonies

under current precedent. See id. at 1224-25 & n.5. We note also that the district

court judge ruling upon Winfrey’s Johnson claim is also the district court judge

who imposed Winfrey’s ACCA-enhanced sentence on Count Three.

      Under these particular circumstances, we conclude that remand is

appropriate in this case. See Long v. United States, 626 F.3d 1167, 1170 (11th Cir.

2010) (explaining that in a § 2255 case a remand may be appropriate to allow the

district court to develop an adequate record or make sufficiently clear findings to


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facilitate this Court’s review of the ultimate merit of any issues for which a COA

was granted). On remand, the district court shall consider in the first instance

whether Winfrey has shown, as a historical fact, that his sentence on Count Three

was more likely than not enhanced under the ACCA’s now-void residual clause.

                                III. CONCLUSION

      We affirm the district court’s determination that Winfrey’s § 2255 motion

raising a Johnson claim is timely. However, we vacate the district court’s May 17,

2017 order denying Winfrey’s § 2255 motion and remand so that the district court

in the first instance can address Winfrey’s Johnson claim as to Count Three in light

of Beeman. This does not preclude the district court from making any alternative

rulings it deems appropriate. Rather, this is to say the district court should address

the Beeman issue first.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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