             Case: 14-13477     Date Filed: 03/29/2016   Page: 1 of 20


                                                                         [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-13477
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket Nos. 2:12-cv-08026-IPJ-JHE,
                           2:10-cr-00107-IPJ-RRA-1


COURTNEY MAYS,

                                                               Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                                 (March 29, 2016)

Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Courtney Mays appeals the district court’s denial of his first and only 28

U.S.C. § 2255 motion to vacate his sentence. Mays was convicted of two counts of
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being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He

was then sentenced pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career

Criminal Act (ACCA). Relying on Descamps v. United States, 570 U.S. __, 133 S.

Ct. 2276 (2013), and Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551

(2015), Mays asserts his sentence under § 924(e)(1) is illegal. Specifically, he

argues that, in light of Descamps and Johnson, he does not have the number of

qualifying prior convictions required to trigger a § 924(e)(1) sentence and,

therefore, his sentence under the section is unlawful. We agree and find that

Mays’s sentence is illegal. Although Descamps and Johnson were decided after

Mays’s conviction and sentence became final, we hold that both cases apply

retroactively in the first post-conviction context. Accordingly, we reverse the

district court’s denial of Mays’s motion and remand for resentencing.

                    I.   SENTENCING UNDER THE ACCA

      To provide the legal context for Mays’s appeal, we begin with a

brief discussion of Descamps, Johnson, and the relevant portions of § 924(e).

Under § 924(e)(1), “a person who violates 18 U.S.C. § 922(g) and has three

previous convictions for a violent felony or a serious drug offense is subject to

additional fines and a fifteen-year minimum sentence (and has an enhanced




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guidelines sentence under U.S.S.G. § 4B1.4).”1 United States v. Petite, 703 F.3d

1290, 1293 (11th Cir. 2013) (internal quotation marks omitted); see also 18 U.S.C.

§ 924(e)(1). The ACCA defines a violent felony as “any crime punishable by

imprisonment for a term exceeding one year” that: (1) “has as an element the use,

attempted use, or threatened use of physical force against the person of another”;

(2) “is burglary, arson, or extortion [or] involves use of explosives”; or (3)

“otherwise involves conduct that presents a serious potential risk of physical injury

to another.” 18 U.S.C. § 924(e)(2)(B). These three “clauses” are known as the

“elements clause,” the “enumerated clause,” and the “residual clause,”

respectively.

       The Court in Descamps addressed our approach to determining whether a

crime constitutes a violent felony under the enumerated clause. The enumerated

clause only includes prior convictions for “generic” versions of the offenses it lists.

See Descamps, 133 S. Ct. at 2281. There are two approaches for determining

whether an offense is generic: the “categorical approach” and the “modified

categorical approach.” See id. Under the categorical approach, we “compare the

elements of the statute forming the basis of the defendant’s conviction with the

elements of the generic crime.” Id. (internal quotation marks omitted). “The prior

conviction qualifies as an ACCA predicate only if the statute’s elements are the

       1
       “Violent felonies” and “serious drug offenses,” as defined by the ACCA, are referred to
as “ACCA predicates.”
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same as, or narrower than, those of the generic offense.” Id. In contrast, under the

modified categorical approach, we may look beyond the statutory elements of the

prior conviction and consider a “limited class of documents, such as indictments

and jury instructions,” to determine whether the conviction was for a generic

offense. See id. In Descamps, the Supreme Court held that this analysis can only

be performed if the statute in question is “divisible,” meaning that it “sets out one

or more elements of the offense in the alternative.” See id. at 2281–82.

      In Johnson, the Supreme Court considered a constitutional challenge to the

residual cause and determined that the clause is unconstitutionally vague. Johnson,

135 S. Ct. at 2557. As such, a defendant cannot be sentenced pursuant to §

924(e)(1) unless he has at least three prior convictions that each meet the criteria of

either the elements clause or the enumerated clause. See id. at 2563.

                               II.   BACKGROUND

      Mays was sentenced to two concurrent terms of 15 years’ imprisonment

pursuant to § 924(e)(1). The sentencing court imposed a § 924(e)(1) sentence

based on two prior convictions for possession of marijuana for other than personal

use under Alabama Code § 13A-12-213(a)(1) and one prior conviction for third

degree burglary under Alabama Code § 13A-7-7. The marijuana convictions were

found to be serious drug offenses and the burglary conviction was determined to be

a violent felony.


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       In July 2012, Mays filed a pro se § 2255 motion for habeas relief, arguing

that he received ineffective assistance of counsel during his direct appeal. Soon

thereafter, the Supreme Court decided Descamps. In August 2013, Mays filed a

notice with the district court alleging he was wrongfully sentenced pursuant to §

924(e)(1). Specifically, he asserted that, under Descamps, his burglary conviction

was not a violent felony. He also generally claimed that his sentence is illegal

because he does not have at least three prior qualifying convictions under §

924(e)(1).2 The Government responded that Mays was procedurally barred from

making such an argument by § 2255’s period of limitations. See 28 U.S.C. §

2255(f)(3). The Government also argued that Mays’s burglary conviction is a

violent felony under the residual clause and, therefore, Descamps—which had no

effect on the residual clause—did not render Mays’s sentence illegal.

       The district court accepted the Government’s period of limitations defense

and dismissed Mays’s challenge to his sentence as time-barred. The court also

denied Mays’s ineffective assistance of counsel claim. This court granted a

certificate of appealability (COA) on three issues: (1) whether the district court

erred by denying Mays’s ineffective assistance of counsel claim; (2) whether the

district court erred in dismissing Mays’s claim that his sentence is illegal under


       2
         Given Mays’s motion to vacate and supplemental notice were filed pro se, we construe
them liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (per
curiam).
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Descamps; and (3) whether the district court abused its discretion by denying

Mays’s motion to reconsider.

      Mays was appointed counsel prior to filing his brief on appeal. A few

months after Mays submitted his brief, the Supreme Court decided Johnson, which

prompted him to file a notice of supplemental authority. In the notice, Mays

stated, inter alia, that Johnson disposed of the Government’s argument that his

burglary conviction is a violent felony under the residual clause. Following this

notice, the Government and Mays submitted a joint motion for resentencing. In the

motion, the Government agreed to withdraw its period of limitations defense

against Mays’s challenge to his sentence, and Mays agreed to dismiss his

ineffective assistance of counsel claim. The Government also conceded that, in

light of Johnson, it believes Mays’s sentence under § 924(e)(1) is unlawful.

      After receiving Mays’s notice of supplemental authority and the parties’

joint motion for resentencing, we requested supplemental briefing on several issues

related to Johnson’s application to this case. In its responding supplemental

briefing, the Government stated that it is waiving non-retroactivity as a defense to

Mays’s Descamps and Johnson arguments. The Government also reiterated its

withdrawal of its period of limitations defense to Mays’s challenge to his sentence.

                               III.   DISCUSSION




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      The dispositive issue before us is whether Mays’s § 924(e)(1) sentence is

unlawful. This issue turns on two questions of law: whether (1) Descamps and (2)

Johnson apply retroactively to Mays despite being decided after his conviction and

sentence became final. If both Descamps and Johnson apply retroactively to

Mays—a first time habeas petitioner—then his burglary conviction is not a

qualifying conviction under § 924(e)(1), and his sentence is illegal because he does

not have at least three qualifying convictions. Accordingly, in considering the

legality of Mays’s sentence, we focus our analysis on resolving these Descamps

and Johnson “retroactivity” questions. However, we first briefly discuss a

threshold procedural issue: the scope of the COA.

   A. Scope of the COA

      All three issues included in the COA are now moot. Mays has withdrawn

his ineffective assistance of counsel claim, thereby mooting the first COA issue.

Furthermore, the “time-barred” issue that the district court relied on in denying

Mays’s challenge to his sentence is moot because the Government has waived its

period of limitations defense. See Bryant v. Warden, FCC Coleman-Medium, 738

F.3d 1253, 1261 (11th Cir. 2013) (“[T]he procedural-default rule is not

jurisdictional [in the post-conviction context], but is an affirmative defense that is

subject to waiver by the government.”). Therefore, the second and third COA

issues are also moot. Nonetheless, as noted above, the core issue raised by Mays


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before the district court—whether his sentence is legal—remains. Given this issue

is not included in the COA, we must consider whether the circumstances warrant

expanding the COA to include it.

      We find that expansion of the COA is clearly warranted. “On exceptional

occasions,” we may expand a COA sua sponte to include issues that “reasonable

jurists would find . . . debatable.” See Dell v. United States, 710 F.3d 1267, 1272–

73 (11th Cir. 2013); Thomas v. Crosby, 371 F.3d 782, 796 (11th Cir. 2014) (“[O]ur

cases establish the power of our court to add issues to a COA sua sponte.”);

Hodges v. Att’y Gen., 506 F.3d 1337, 1341–42 (11th Cir. 2007). “Exceptional

occasions” include cases where we request supplemental briefing on issues not

included in the COA. See Dell, 710 F.3d at 1272–73. Here, we requested

supplemental briefing on issues related to the legality of Mays’s sentence. In

addition, as made apparent by the Government conceding that it believes Mays’s

sentence is illegal, this issue is one “that reasonable jurists would find . . .

debatable.” See id. at 1273. Lastly, if we did not expand the COA, remand to the

district court would be necessary. But, whether Mays’s sentence is illegal involves

purely legal questions that would not benefit from remand. See Reed v. Beto, 343

F.2d 723, 725 (5th Cir. 1965) (“Passing then to the merits of this argument, in view




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of its being a pure question of law, we see no need to remand it for a determination

by the District Court.”). 3

   B. Legality of Mays’s Sentence
        Mays’s challenge to his sentence turns on whether his Alabama Code § 13A-

7-7 conviction for third degree burglary is a violent felony. 4 We review de novo

whether that burglary conviction qualifies as a violent felony. See United States v.

Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). The only ACCA clauses that

could apply to the conviction are the enumerated and residual clauses.5 However,

we conclude that, in light of Descamps and Johnson, neither clause applies to

Mays.

            1. Enumerated Clause

        At the time Mays was sentenced, an Alabama Code § 13A-7-7 third degree

burglary conviction could qualify as a violent felony under the enumerated clause.

See United States v. Rainer, 616 F.3d 1212, 1213, 1216 (11th Cir. 2010). Post-

Descamps, this is no longer the case. Based on Descamps, we held in Howard that

        3
          See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions of the “old Fifth” Circuit handed down prior to the close of business
on September 30, 1981 are binding precedent in the Eleventh Circuit).
        4
          There is no dispute that Mays’s two convictions under Alabama Code § 13A-12-
213(a)(1) qualify as serious drug offenses under § 924(e)(1). See United States v. Mays (Mays
I), 300 F. App’x 735, 737 (11th Cir. 2008) (per curiam).
        5
          The elements clause clearly is inapplicable. Alabama Code § 13A-7-7 provides “[a]
person commits the crime of burglary in the third degree if he knowingly enters or remains
unlawfully in a building with intent to commit a crime therein.” As such, third degree burglary
in Alabama does not have “as an element the use, attempted use, or threatened use of physical
force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i).
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a conviction for third degree burglary cannot qualify as a violent felony under the

enumerated clause because Alabama Code § 13A-7-7 is an indivisible, non-generic

statute. Howard, 742 F.3d at 1348–49. Thus, if Mays was sentenced today, the

enumerated clause would not apply to his burglary conviction. But, given that

Mays’s conviction and sentence became final prior to Descamps, our analysis does

not end here. We must consider whether Descamps and Howard apply

retroactively to Mays. This requires us to analyze Descamps through the

“retroactivity” framework set forth in Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989) and related Supreme Court cases.

       In Teague and subsequent cases, the Supreme Court “laid out the framework

to be used in determining whether a rule announced in one of [its] opinions should

be applied retroactively to judgments in criminal cases that are already final.” 6

Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007). “Under the

Teague framework, an old rule applies both on direct and collateral review, but a

new rule is generally applicable only to cases that are still on direct review.” Id.


       6
         In its supplemental briefing, the Government states that it “waives any non-retroactivity
defense that would bar the application of Descamps to the merits of Mays’[s] claim.” Based on
this waiver, the Government asserts that we need not consider whether Descamps triggers a
“retroactivity” analysis under Teague. The Government takes a similar position with Johnson.
However, “Teague analysis is ordinarily our first step when we review a federal habeas case,”
and we have discretion to perform such analysis even where the Government completely fails to
raise a Teague argument. See Schiro v. Farley, 510 U.S. 222, 228–29, 114 S. Ct. 783, 788–89
(1994); Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 953 (1994) (“[A] federal court
may, but need not, decline to apply Teague if the [Government] does not argue it.”).

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“A new rule is defined as a rule that was not dictated by precedent existing at the

time the defendant’s conviction became final.” Id. at 416, 127 S. Ct. at 1181

(internal quotation marks omitted). As the Supreme Court and other circuits have

recognized, Descamps did not announce a new rule—its holding merely clarified

existing precedent. See Descamps, 133 S. Ct. at 2283 (“Our caselaw explaining

the categorical approach and its ‘modified’ counterpart all but resolves this case.”);

id. at 2285 (“That is the job, as we have always understood it, of the modified

approach . . . .” (emphasis added)); Ezell v. United States, 778 F.3d 762, 763 (9th

Cir. 2015) (“We hold that the Supreme Court did not announce a new rule of

constitutional law in Decamps. Rather, it clarified—as a matter of statutory

interpretation—application of the ACCA in light of existing precedent.”), cert.

denied, 136 S. Ct. 256 (2015); United States v. Davis, 751 F.3d 769, 775 (6th Cir.

2014) (“The Supreme Court in Descamps explained that it was not announcing a

new rule, but was simply reaffirming” an existing approach.).

      Given Descamps did not announce a new rule, it and Howard apply here.

See Whorton, 549 U.S. at 416, 127 S. Ct. at 1180. Under Descamps and Howard,

third degree burglary convictions in Alabama cannot qualify as violent felonies

under the enumerated clause. Accordingly, the enumerated clause does not apply

to Mays’s burglary conviction.

         2. Residual Clause


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       Although we conclude that the enumerated clause does not apply, Mays’s

sentence could still be upheld if the residual clause is applicable. It is clear that the

residual clause is unconstitutional under Johnson, but Johnson was also decided

after Mays’s conviction and sentence became final. Thus, as with Descamps, the

dispositive “residual clause” question before us is whether Johnson applies

retroactively in the present context. 7 This means we must again turn to Teague.8

       As noted above, under Teague, new rules are not typically applicable to

cases on collateral review. Whorton, 549 U.S. at 416, 127 S. Ct. at 1180.

However, the Supreme Court has established a general principle that new

substantive rules and watershed rules of criminal procedure are not subject to this

retroactivity bar. See Montgomery v. Louisiana, 577 U.S. __, __, 136 S. Ct. 718,

728 (2016); Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522

(2004); Teague, 489 U.S. at 307–09, 109 S. Ct. at 1073–74. New substantive rules

include, for example, “decisions that narrow the scope of a criminal statute by

interpreting its terms” and “constitutional determinations that place particular




       7
          Under our precedent prior to Johnson, burglary convictions similar to Mays’s qualified
as violent felonies under the residual clause. See United States v. Matthews, 466 F.3d 1271,
1275–76 (11th Cir. 2006). Therefore, if Johnson does not apply to Mays retroactively, his
sentence could be upheld through the residual clause.
        8
          As an initial matter, the Government contends that we may not consider Johnson
because Mays did not specifically raise any residual clause claims before the district court.
However, based on the record before us—including the supplemental briefing we requested on
Johnson—we disagree.
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conduct or persons covered by the statute beyond the State’s power to punish.”9

See Schriro, 542 U.S. at 351–52, 124 S. Ct. at 2522. “Such rules apply

retroactively because they necessarily carry a significant risk that a defendant

stands convicted of an act that the law does not make criminal or faces a

punishment that the law cannot impose upon him.” Id. at 352, 124 S. Ct. at 2522–

23 (internal quotation marks omitted). Under this framework, a new rule applies

retroactively if: (1) the Supreme Court holds the rule is not subject to the Teague

retroactivity bar; or (2) the Teague principles of retroactivity established by the

Court, such as those outlined above, provide for retroactive application of the rule.

See Tyler v. Cain, 533 U.S. 656, 663–66, 121 S. Ct. 2478, 2482–84 (2001); Bryant,

738 F.3d at 1277–78 (finding a new rule retroactive based on the Teague principles

of retroactivity but noting that, in the § 2255(h) context, only the Supreme Court

can find a rule retroactive).

       In In re Rivero, we held that Johnson established a new substantive rule.

797 F.3d 986, 989 (11th Cir. 2015). Specifically, we found that Johnson

“narrowed the class of people who are eligible for an increased sentence under the”

       9
          Although the latter type of substantive rule is often characterized as a Teague exception,
the Schriro Court clarified that such a rule simply is not subject to the Teague retroactivity bar.
542 U.S. at 352, 124 S. Ct. at 2522 n.4. Indeed, the principle that this type of substantive rule
applies retroactively is independent of Teague—it arises from the Constitution. See
Montgomery, 136 S. Ct. at 729; Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J.,
concurring in part and dissenting in part) (providing the foundation for Teague, Justice Harlan
stated, “new ‘substantive due process’ rules, that is, those that place, as a matter of constitutional
interpretation, certain kinds of primary, private individual conduct beyond the power of criminal
law-making authority to proscribe, must, in my view, be placed on a different footing”).
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ACCA. Id. In that case, we considered a federal prisoner’s application to file a

second or successive habeas petition. Such an application may only be granted if it

involves newly discovered evidence or “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.”10 28 U.S.C. § 2255(h) (emphasis added). The prisoner in Rivero

claimed Johnson satisfied the “new rule of constitutional law” requirement.

       A new rule is only made retroactive by the Supreme Court if the Court

explicitly holds that the rule applies retroactively or such a holding results by

“logical necessity” from multiple Court opinions. Tyler, 533 U.S. at 668–70, 121

S. Ct. at 2485–86. “The Supreme Court does not make a rule retroactive when it

merely establishes principles of retroactivity[, such as the Teague principles,] and

leaves the application of those principles to lower courts.” See id. at 663, 121 S.

Ct. at 2482 (internal quotation marks omitted). In Rivero, we concluded that the

Supreme Court has not explicitly held Johnson to be retroactive and “[n]o

combination of holdings of the Supreme Court ‘necessarily dictate’ that Johnson

should be applied retroactively on collateral review.” 797 F.3d at 989.

Accordingly, we rejected the prisoner’s argument that Johnson was “made

retroactive . . . by the Supreme Court,” and we found that the prisoner failed to

satisfy § 2255(h). See id. (internal quotation marks omitted).

       10
         Section 2244(b)(2), which applies to state prisoners bringing a second or successive
habeas petition, includes similar language. See 18 U.S.C. § 2244(b)(2).
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       In contrast to Rivero, we are presented here with a prisoner’s first habeas

petition, not an application for a second or successive petition. As such, § 2255(h)

and its “made retroactive . . . by the Supreme Court” requirement are not

applicable. This means we must engage in a broader retroactivity analysis than we

did in Rivero. In other words, Rivero is not controlling here. As noted above, the

retroactivity analysis demanded by 28 U.S.C. § 2255(h) is narrow—it is limited to

whether the Supreme Court has explicitly, or by logical necessity, made a rule

retroactive. See Bryant, 738 F.3d at 1278 (stating that the Supreme Court’s general

retroactivity jurisprudence “is quite different from the stricter, statutory

retroactivity requirements in 28 U.S.C. § 2255(h)”). Given that “the Supreme

Court does not make a rule retroactive when it merely establishes principles of

retroactivity and leaves the application of those principles to lower courts,” a §

2255(h) analysis does not address such principles. See Tyler, 533 U.S. at 663, 121

S. Ct. at 2482 (emphasis added); Bryant, 738 F.3d at 1278. However, we may not

ignore Supreme Court precedent regarding principles of retroactivity, such as the

Teague principles, when § 2255(h) is not implicated.

       Applying the Teague principles, Johnson is retroactive because it qualifies

as a substantive rule.11 First, we have already found that Johnson is a new

substantive rule since it narrows the class of people that may be eligible for a

       11
          Notably, in its supplemental briefing, the Government stated that it believes Johnson
applies retroactively and that Mays is therefore entitled to relief.
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heightened sentence under the ACCA. See Rivero, 797 F.3d at 989. Second, “a

significant risk exists that some defendants . . . who were sentenced before

[Johnson] have erroneously received the increased penalties under § 924(e) and

now are serving prison terms . . . that the law cannot impose upon them.” See

Bryant, 738 F.3d at 1278 (citing Schriro, 542 U.S. at 352, 124 S. Ct. at 2522–23)

(internal quotation marks omitted). This case is demonstrative. Mays does not

simply face a significant risk of unlawful punishment in light of Johnson.

Unlawful punishment is guaranteed. Johnson “eliminated [the] State’s power to . .

. impose [the very] punishment” that Mays currently faces—a prison term based on

the residual clause. See Montgomery, 136 S. Ct. at 729–30 (discussing the scope

of and rationale underlying the Teague substantive rule principle). Finally, Rivero

supports a finding that Johnson applies retroactively under the Teague principles.

Referencing Schriro’s conclusion that, under Teague, “new substantive rules

generally apply retroactively on collateral review,” Rivero stated that Johnson

would apply retroactively to a prisoner “seeking a first collateral review of his

sentence.” See Rivero, 797 F.3d at 991. Therefore, we hold that Johnson applies

retroactively on collateral review to prisoners seeking habeas relief for the first

time.

        In light of our finding that Johnson applies retroactively to prisoners, like

Mays, who are challenging their § 924(e)(1) sentence via an initial habeas petition,


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we conclude that Mays’s burglary conviction cannot be considered a violent felony

under the residual clause.

                                         *      *       *

       In sum, neither the enumerated clause nor the residual clause applies to

Mays’s burglary conviction. The conviction is, therefore, not a violent felony, and

Mays has, at most, two qualifying prior convictions under § 924(e)(1). As a result,

Mays’s sentence is illegal. 12

                                   IV.       CONCLUSION

       We reverse the district court’s denial of Mays’s § 2255 motion to vacate and

remand this case to district court for resentencing, without the § 924(e)(1)

enhancement. In resentencing Mays, the district court shall perform a fresh review

of the 18 U.S.C. § 3553(a) factors. See United States v. Estrada, 777 F.3d 1318,

1323 (11th Cir. 2015) (per curiam) (ordering that, on remand for resentencing, “the

district court shall consider all appropriate 18 U.S.C. § 3553(a) factors in

determining a reasonable sentence”).


       12
           Moreover, such an illegal sentence warrants habeas relief. Defendants convicted under
§ 922(g)(1) are subject to a 10-year statutory maximum sentence unless they qualify for §
924(e)(1)’s 15-year minimum sentence. See 18 U.S.C. §§ 924(a)(2), (e)(1). Hence, erroneously
sentencing a defendant under § 924(e)(1) results in “actual prejudice”: a sentence 5 years above
the applicable statutory maximum. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct.
1710, 1722 (1993) (internal quotation marks omitted). Indeed, that sentencing error “affect[s]
[the defendant’s] substantial rights and seriously affect[s] the fairness, integrity, or public
reputation of the judicial proceedings.” See United States v. Sanchez, 586 F.3d 918, 930 (11th
Cir. 2009) (internal quotation marks omitted) (holding that an error resulting in a sentence above
the statutory maximum meets even the plain error standard).
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REVERSED AND REMANDED.




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JORDAN, Circuit Judge, concurring.

      We have held that Johnson v. United States, 135 S.Ct. 2551, 2557 (2015)—

which ruled that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §

924(e), is unconstitutionally vague—“announced a new substantive rule of

constitutional law.” In re Rivero, 786 F.3d 986, 988 (11th Cir. 2015) (denying

application for leave to file a second or successive motion to vacate because the

Supreme Court had not made Johnson retroactive to cases on collateral review).

Under Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016), which the Supreme

Court decided after Rivero, “when a new [substantive] rule of constitutional law

controls the outcome of a case, the Constitution requires” that rule to be given

retroactive effect on collateral review.

      The combination of Rivero and Montgomery makes Johnson retroactive and

applicable to cases on initial collateral review. Whether or not Montgomery also

calls into question the retroactivity holding of Rivero itself (as to applications to

file a second or successive motion to vacate based on Johnson) is a matter left for

another day. I note also that Montgomery, which held that Miller v. Alabama, 132

S.Ct. 2455 (2012), announced a new substantive rule of constitutional law which

had to be given retroactive effect on collateral review, abrogates our contrary

decision (and much of the retroactivity analysis) in In re Morgan, 713 F.3d 1365

(11th Cir. 2013).
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             Case: 14-13477     Date Filed: 03/29/2016   Page: 20 of 20


      Finally, I recognize that the Johnson issue is being raised for the first time

on appeal and that our review is therefore for plain error. That standard of review,

however, does not call for a different result here. We have held that, where a

sentence exceeds the statutory maximum, plain error exists and needs to be

corrected because it affects the defendant’s substantial rights as well as the

fairness, integrity, and public reputation of the judicial proceedings. See United

States v. Sanchez, 586 F.3d 918, 930 (11th Cir. 2009) (sentences of life

imprisonment, resulting from district court’s plain error in treating a defendant’s

prior Florida drug offenses as “serious drug offenses” under the “three strikes law,”

18 U.S.C. § 3559(c), had to be vacated because they exceeded the statutory

maximum terms of 20 years that would have otherwise applied); United States v.

Eldick, 393 F.3d 1354, 1354 n.1 (11th Cir. 2004) (“The sentence rendered was

plain error because it exceeded the statutory maximum.”).

      With these thoughts, I join the court’s opinion in full.




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