            Case: 13-15951   Date Filed: 09/01/2016   Page: 1 of 5


                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15951
                          Non-Argument Calendar
                        ________________________

        D.C. Docket Nos. 2:10-cv-08019-IPJ; 2:07-cr-00118-IPJ-MHH-1

JOHN FORREST COON,

                                                           Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                        ________________________

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

                             (September 1, 2016)

    ON REMAND FROM THE UNITED STATES SUPREME COURT

Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

     We are considering this matter on remand from the United States Supreme

Court. The first time the case was before us on appeal, John Forrest Coon, a
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federal prisoner serving a 180-month total sentence for possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1), challenged the district

court’s denial of his pro se motion to vacate, set aside, or correct sentence, filed

pursuant to 28 U.S.C. § 2255. The district court had granted Coon a certificate of

appealability (“COA”) on all of the issues that he raised, including that: (1) his

sentence was incorrectly enhanced under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e); (2) he received ineffective assistance of counsel

because counsel did not adequately research his criminal history and oppose the

ACCA enhancement; (3) the district court abused its discretion in denying his §

2255 motion without an evidentiary hearing; (4) the district court violated Clisby v.

Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by not addressing all of his

constitutional claims; and (5) the district court erred generally in denying all other

claims he asserted in his § 2255 motion. We affirmed the district court’s decision

on appeal in its entirety, but, thereafter, the United States Supreme Court remanded

the case to us in light of its decision in Johnson v. United States, 135 S. Ct. 2551

(2015). After thorough review, we vacate and remand for resentencing.1


       1
         We DENY AS UNNECESSARY Coon’s request to expand the COA to include a
Johnson claim. Prior to Johnson, the district court granted Coon a COA on, inter alia, the claim
that he was incorrectly sentenced under the ACCA in excess of the statutory maximum. Once
Johnson was decided and the Supreme Court remanded the case, the parties submitted
supplemental briefing to this Court about the effect of Johnson. In its supplemental brief, the
government conceded that Coon was sentenced above the statutory maximum in light of
Johnson, and did not argue that it lacked fair notice of this claim. While we are limited to
reviewing the issues enumerated in a COA, McKay v. United States, 657 F.3d 1190, 1195 (11th
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       On remand, Coon and the government agree on the sole issue before us:

whether the district court erred in denying the claim in his § 2255 motion to vacate

that he was erroneously sentenced under the ACCA in excess of the statutory

maximum. 2 In reviewing the denial of a § 2255 motion to vacate, we review

questions of law de novo and findings of fact for clear error. Lynn v. United

States, 365 F.3d 1225, 1232 (11th Cir. 2004).

       The ACCA provides that anyone convicted of an offense under 18 U.S.C. §

922(g) who has three previous convictions for a “violent felony” or a “serious drug

offense” is subject to a 15-year mandatory minimum sentence.                      18 U.S.C. §

924(e)(1).    Defendants convicted under § 922(g) who do not qualify for an

enhanced sentence under the ACCA face a statutory mandatory maximum of ten

years’ imprisonment. Id. § 924(a)(2).

       The ACCA defines a 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


Cir. 2011), we conclude on this record that the COA the district court granted incorporates the
claim that Coon was sentenced above the statutory maximum in light of Johnson.
        2
          When we considered Coon’s appeal the first time, the government argued that Coon had
procedurally defaulted on his ACCA claim. However, on remand, the government expressly
concedes that it has waived all of the procedural defenses it asserted before us and the district
court. Thus, our ruling that Coon procedurally defaulted on his ACCA claim no longer stands,
and we address its merits. Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, 1261
(11th Cir. 2013) (holding that we cannot avoid ruling on a claim a petitioner has procedurally
defaulted if the government has waived the procedural default defense for that claim).
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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 prong of this definition is sometimes referred to as the

“elements clause,” while the second prong contains the “enumerated crimes” 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 because the residual clause of the

“violent felony” definition in the Armed Career Criminal Act (“ACCA”) is

unconstitutionally vague, imposition of an enhanced sentence under that provision

violates the Fifth Amendment's guarantee of due process. The Supreme Court

made clear that its ruling on the residual clause did not call into question the

validity of the elements clause or the enumerated crimes clause of the ACCA’s

definition of a violent felony. 135 S.Ct. at 2563. In Welch v. United States, 578

U.S. __, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies

retroactively to cases on collateral review.

      Here, Coon’s presentence investigation report (“PSI”) identified four ACCA

predicate violent felonies: (1) a 1992 third-degree burglary conviction in Alabama

state court; (2) a 1990 Florida state conviction for burglary of a dwelling; (3)

another 1990 Florida state conviction for burglary of a dwelling; and (4) a 1991

third-degree escape conviction in Alabama state court. The government previously
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conceded that Coon’s prior conviction for third-degree escape no longer qualified

as a ACCA predicate conviction. Now, in its supplemental brief, the government

concedes that, in light of Johnson, it can no longer maintain that Coon’s Alabama

third-degree burglary conviction qualifies as a violent felony. This is because

we’ve held, in a case on direct appeal, that “[w]ithout the residual clause of the

ACCA, there is no longer any basis for characterizing the Alabama third degree

burglary statute as a violent felony under the ACCA.” United States v. Nelson,

813 F.3d 981, 981 (11th Cir. 2015). Without this Alabama conviction, Coon has,

at most, two predicate convictions, which is not enough to qualify for an enhanced

sentence under the ACCA. See 18 U.S.C. § 924(a)(2), (e)(1). Therefore, his total

15-year sentence exceeds the statutory maximum. See id.

      Accordingly, we agree with Coon and the government that a remand to the

district court is appropriate.   On remand, Coon must be resentenced without

reference to the residual clause.    “[W]hen a criminal sentence is vacated, it

becomes void in its entirety; the sentence -- including any enhancements -- has

been wholly nullified and the slate wiped clean.” United States v. Stinson, 97 F.3d

466, 469 (11th Cir. 1996) (quotation omitted). “Consequently, when a sentence is

vacated and the case is remanded for resentencing, the district court is free to

reconstruct the sentence utilizing any of the sentence components.” Id.

      VACATED AND REMANDED.


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