           Case: 17-12052   Date Filed: 06/27/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12052
                        Non-Argument Calendar
                      ________________________

     D.C. Docket Nos. 1:06-cr-00300-MHC-AJB-1; 1:16-cv-02273-MHC



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellant,


                                  versus


PHILIP BERNARD NORTH,

                                                          Defendant-Appellee.

                      ________________________

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

                             (June 27, 2018)

Before WILLIAM PRYOR, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       The Government appeals the district court’s grant of Philip North’s motion

to vacate under 28 U.S.C. § 2255 and his subsequent amended sentence. The

Government contends the district court erred in finding that (1) North’s § 2255

motion, filed pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), was

timely under 28 U.S.C. § 2255(f)(3), and (2) North carried his burden of showing

his sentence was enhanced under the residual clause of the Armed Career Criminal

Act (ACCA). 1 After review, we reverse and remand.

       On June 26, 2015, the United States Supreme Court held the ACCA’s

residual clause is unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Later, the

Supreme Court held Johnson was retroactively applicable to cases on collateral

review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

       In Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), decided after

the district court’s grant of North’s motion to vacate, a federal prisoner argued

Johnson invalidated his ACCA-enhanced sentence because one of his predicate

convictions would have qualified as a violent felony under the residual clause of

the ACCA, but not under the enumerated crimes or elements clauses. Id. at 1218.

He conceded the record was silent as to what clause the sentencing court relied on

when applying his sentence enhancement, but he argued the court must have relied

       1
         The Government also asserts the district court erred in concluding that North’s
convictions for robbery under Georgia law were not violent felonies under the elements clause of
the ACCA. We do not reach this argument, however, as we hold that North did not carry his
burden of showing that his sentence was enhanced under the residual clause, as discussed infra.
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on the residual clause, as he did not qualify for the enhancement under the other

two clauses. Id. at 1224. He also argued his predicate conviction historically

qualified for the sentence enhancement under the residual clause. Id. at 1220. The

district court rejected these contentions, however, and denied the § 2255 motion as

time-barred because it was brought more than a year after the prisoner’s conviction

became final and raised a Descamps 2 claim, not a “true Johnson claim.” Id. at

1219.

        On appeal, we clarified that a claim based on Descamps would not trigger

the one-year limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on

Johnson would. Id. at 1220. To distinguish between the two, we explained “[a]

Johnson claim contends that the defendant was sentenced as an armed career

criminal under the residual clause, while a Descamps claim asserts that the

defendant was incorrectly sentenced . . . under [the other] clause[s].” Id. We

determined Beeman had raised a timely Johnson claim because he argued his

offense “historically qualified as an ACCA predicate under the ACCA's residual


        2
           In Descamps v. United States, 133 S. Ct. 2276 (2013), the Supreme Court outlined the
analysis for determining whether a past conviction qualified as a violent felony under the
elements clause, requiring courts to apply either a categorical or modified categorical approach
depending on whether a statute was indivisible or divisible. Descamps, 133 S. Ct. at 2283–85.
We have concluded Descamps is retroactively applicable to cases on collateral review. Mays v.
United States, 817 F.3d 728, 733–34 (11th Cir. 2016). However, for the purposes of the statute
of limitations for § 2255 motions, we have concluded Descamps did not itself announce a new
rule of constitutional law, but rather clarified the application of the ACCA in light of existing
precedent. In re Griffin, 823 F.3d 1350, 1356 (11th Cir. 2016).

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clause,” and because he filed his motion just before the one-year anniversary of the

Johnson decision. Id. at 1220–21 (internal quotations and alteration omitted).

        We then proceeded to consider the merits of the Johnson claim. Id. at 1221.

In this respect, we affirmed, holding Beeman did not carry his burden of proving

his sentence enhancement was based on the residual clause. Id. at 1225. We

explained, “[t]o prove 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.” Id. at 1221–22. Further, “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 use of the residual clause.” Id. at 1222. In his motion,

Beeman “stated in conclusory terms that the district court must have relied on the

residual clause,” but nothing in the record supported that argument. Id. at 1224.

Moreover, Beeman did not point to any precedent showing his predicate offense

qualified as a violent felony only under the residual clause. Id. Such “general

observations” were not enough to carry his burden of showing he was sentenced as

an armed career criminal “solely because of the residual clause.” Id. Thus,

because Beeman failed to prove that, more likely than not, he was sentenced under

the residual clause, we concluded that he failed to support a Johnson claim. Id. at

1225.


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      In describing what sort of evidence in the record might demonstrate whether

a defendant was sentenced under the residual clause, we concluded “[e]ach case

must be judged on its own facts.” Id. at 1224 n.4. Direct evidence in the record

could include statements by the sentencing judge that the residual clause was relied

on and was the basis for finding the defendant to be an armed career criminal. Id.

Circumstantial evidence could include unobjected-to statements in the PSI stating

that the enumerated crimes and elements clauses did not apply to the predicate

offense, or statements by the prosecutor in the sentencing record that those clauses

did not apply. Id.

      North was sentenced on August 20, 2007, and his conviction became final

on September 4, 2007, after the 14-day window in which he was entitled to file a

direct appeal expired. Fed. R. App. P. 4(b)(1)(A); see also Murphy v. United

States, 634 F.3d 1303, 1307 (11th Cir. 2011) (explaining when a defendant does

not appeal his conviction or sentence, the judgment of conviction becomes final

when the time for seeking that review expires). North filed his § 2255 motion on

June 27, 2016—well past the one-year deadline for challenging final convictions,

but within the deadline for challenging a sentence under Johnson. 28 U.S.C.

§ 2255(f)(1), (3). He also expressly challenged his sentence as improperly

enhanced under the ACCA’s residual clause. Thus, although the district court did

not have the benefit of Beeman when it ruled, the court correctly concluded that


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North’s motion was timely under Johnson. See Beeman, 871 F.3d at 1220–21; 28

U.S.C. § 2255(f)(3).

      However, North’s motion fails on the merits because he did not meet his

burden of showing that, more likely than not, his sentence was enhanced under the

residual clause. See Beeman, 871 F.3d at 1221–22. Like Beeman, the record in

North’s criminal case was silent regarding the clause on which his sentence

enhancement was based. Id. at 1224. And although North argued the sentencing

court must have relied on the residual clause because his Georgia robbery

convictions did not qualify as violent felonies under the enumerated offense or

elements clauses, he did not point to anything in the district court record to support

this contention. Moreover, North failed to point to any precedent showing his

robbery offense qualified as a violent felony only under the residual clause. As we

found in Beeman, such “general observations” were not sufficient to carry North’s

burden of showing that his sentence was enhanced “solely because of the residual

clause.” Beeman, 871 F.3d at 1224. Accordingly, as North failed to support his

Johnson claim, we reverse and remand for reconsideration in accordance with

Beeman.

      REVERSED AND REMANDED.




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