           Case: 17-14813   Date Filed: 08/01/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14813
                        Non-Argument Calendar
                      ________________________

        D.C. Docket Nos. 1:16-cv-21409-JEM; 1:04-cr-20482-JEM-1



GERALDO GOMEZ,

                                                         Petitioner - Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                       Respondent - Appellee.

                      ________________________

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

                            (August 1, 2018)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Geraldo Gomez appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct sentence, following our grant of his

application for leave to file a second or successive § 2255 motion based on

Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Gomez argues

that his Florida convictions for attempted first-degree murder and arson are no

longer violent felonies under the Armed Career Criminal Act (“ACCA”) in light of

Johnson. The government responds that Gomez cannot show he was actually

sentenced under ACCA’s residual clause, as required by this Court’s decision in

Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), which was issued after

the district court denied Gomez’s motion.

                                          I.

      On November 10, 2004, a jury convicted Gomez of possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Gomez was sentenced

to 235-months imprisonment. This sentence was based, in part, on the district

court’s determination that Gomez qualified as an armed career criminal. ACCA

provides for a sentence of no less than fifteen years for a defendant who violates

§ 922(g) and has three or more prior convictions for a “violent felony” or a

“serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is defined 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
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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). The first part of this definition is known as the “elements

clause.” See Mays v. United States, 817 F.3d 728, 730–31 (11th Cir. 2016) (per

curiam). The second part of this definition contains both the “enumerated offenses

clause” and the “residual clause.” Id.

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

unconstitutionally vague. 135 S. Ct. at 2563. The Court made this rule retroactive

in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016). In 2016,

Gomez filed an application seeking authorization from this Court to file a second

or successive § 2255 motion in order that he could challenge his sentence based on

the Johnson ruling. After a panel of this Court granted his application, the

government argued Gomez still qualified for the longer sentence under ACCA

based on Florida convictions for (1) attempted first-degree murder with a firearm;

(2) aggravated assault; and (3) first-degree arson.

       A magistrate judge recommended that Gomez’s petition be denied. First,

the magistrate judge considered whether Gomez met the statutory requirements for

filing a second or successive motion. The magistrate judge observed that the

standard for making a Johnson claim was “far from settled with the Eleventh

Circuit.” The magistrate judge noted the conflicting standards set forth in In re
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Moore, 830 F.3d 1268, 1273 (11th Cir. 2016) (per curiam), which required a

defendant to show he was sentenced under the residual clause, and In re Chance,

831 F.3d 1335, 1341–42 (11th Cir. 2016), which required a defendant to show it

was unclear under which clause he was sentenced and that his sentence was no

longer lawful under § 924(c). The magistrate judge said the In re Chance approach

was more sensible and determined Gomez met that threshold requirement. The

magistrate judge then reached the merits of Gomez’s claim and determined that his

convictions for Florida attempted first-degree murder, aggravate assault, and arson

still qualified as ACCA predicates. The district court adopted the magistrate

judge’s recommendations and denied Gomez’s motion. This Court granted Gomez

a Certificate of Appealability (“COA”) on whether Gomez’s Florida convictions

for attempted first-degree murder and arson still qualified as ACCA predicates

post-Johnson.

                                          II.

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

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

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

review de novo whether a defendant’s prior conviction qualifies as a violent felony

under ACCA. United States v. Hill, 799 F.3d 1318, 1321 (11th Cir. 2015) (per

curiam).


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       Appellate review is ordinarily limited to the issues specified in the COA.

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

However, procedural issues that must be resolved before we can address the 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).

       In Beeman, a panel of this Court held that to prove a claim based on

Johnson, a movant must show it is “more likely than not” that “it was use of the

residual clause that led to the sentencing court’s enhancement of his sentence.”

871 F.3d 1221–22. This inquiry is one of “historical fact,” looking to the basis for

the sentence at the time of sentencing. Id. at 1224 n.5. Before Beeman, the

showing required to present a Johnson claim was disputed. Compare Moore, 830

F.3d at 1273, with Chance, 831 F.3d at 1341–42. Indeed, the magistrate judge

noted split authority on the subject before deciding to follow the standard set out in

In re Chance.

       The status of Florida convictions for attempted first-degree murder and

arson as ACCA predicate convictions is still an open question in this circuit.1 But


       1
         The district court found arson qualified as violent crimes under ACCA’s enumerated
offenses clause and attempted first-degree murder qualified under the elements clause. But
Gomez argues that Florida arson is broader than generic arson because Florida arson can be
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according to Beeman, before we can perform that analysis, Gomez must show that

his sentence was more likely than not based on the residual clause. Beeman, 871

F.3d at 1221–22. Beeman was decided after the district court ruled on Gomez’s

petition. As a result, the record is not fully developed on this point.

       Because the parties had no occasion to address the requirement established

by Beeman in the district court, a remand is appropriate. See Schumann v. Collier

Anesthesia, P.A., 803 F.3d 1199, 1203 (11th Cir. 2015) (remanding after this Court

adopted a new legal test “[t]o allow the district court to apply this test in the first

instance and, if the district court desires, to give the parties an opportunity to

further develop the record to address the components of the test”). On remand, the

district court should consider in the first instance whether Gomez can show, as a

historical fact, it was more likely than not he was sentenced under the residual

clause. Beeman, 871 F.3d 1221–22. This inquiry can include, among other things,

a review of the record at Gomez’s sentencing, as well as consideration of how

courts viewed the statutes under which Gomez had previously been convicted, and

how courts interpreted other similar statutes at the time he received his ACCA

sentence.

       VACATED AND REMANDED.

committed “while in the commission of any felony,” which does not necessarily require the
“intentional or malicious burning of property with the purpose of destroying the building of
another” of generic arson. Gomez also argues that Florida attempted first-degree murder can be
committed through “the surreptitious poisoning or drugging of the victim,” which “does not
involve the use of violent force sufficient to satisfy the ACCA’s force clause.”
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