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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10603
                         Non-Argument Calendar
                       ________________________

       D.C. Docket Nos. 9:16-cv-81059-DTKH; 9:12-cr-80220-DTKH-1



BRANDON BIVINS,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                             (August 28, 2018)

Before TJOFLAT, NEWSOM and HULL, Circuit Judges.

PER CURIAM:
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      Brandon Bivins, a federal prisoner, appeals the district court’s denial of his

28 U.S.C. § 2255 motion to vacate his 235-month sentence under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). After review, we affirm.

                           I. BACKGROUND FACTS

A.    Conviction and Sentencing

      In 2013, a jury convicted Bivins of one count of possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e).

      Bivins’s presentence investigation report (“PSI”) stated that Bivins had three

prior convictions that qualified him as an armed career criminal under the ACCA

and U.S.S.G. § 4B1.4. The PSI identified these three Florida felony convictions:

(1) a 1994 conviction for aggravated assault; (2) a 1996 conviction for aggravated

assault with a deadly weapon; and (3) 1997 convictions for possession of cocaine

with intent to deliver or sell and possession of marijuana with intent to deliver or

sell. As an armed career criminal, Bivins was subject to a mandatory minimum

15-year sentence and a statutory maximum term of life. In addition, Bivins’s

advisory guidelines range was increased from 84 to 105 months’ to 235 to 293

months’ imprisonment.

      At his April 25, 2013 sentencing hearing, Bivins did not object to his

designation as an armed career criminal or argue that his Florida aggravated assault

convictions did not qualify as violent felonies under the ACCA. Indeed, in


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addressing the sentencing court, Bivins acknowledged that he was an armed career

criminal, but pointed out that he was a juvenile when he committed his prior

felonies, and asked the sentencing court to give him only the 180 months’

mandatory minimum sentence. The district court found that Bivins’s advisory

guidelines range was 235 to 293 months’ imprisonment and imposed a 235-month

sentence. The PSI, the parties, and the sentencing court did not reference or

discuss under which clause of the ACCA any of Bivins’s prior felony convictions

qualified as violent felonies.

B.    Direct Appeal

      On direct appeal, Bivins raised two trial issues and argued that his 235-

month sentence was substantively unreasonable, but he did not challenge his status

as an armed career criminal under the ACCA and U.S.S.G. § 4B1.4. See United

States v. Bivins, 560 F. App’x 899, 905-08 (11th Cir. 2014). This Court affirmed

Bivins’s conviction and sentence. Id. at 908.

C.    Section 2255 Proceedings

      After Bivin’s direct appeal, the Supreme Court issued 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 23, 2016, Bivins filed his counseled § 2255 motion, arguing that

after Johnson, his prior Florida convictions for aggravated assault no longer


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qualified as violent felonies under the ACCA. 1 Bivins did not contend that in 2013

the sentencing court had relied on the now-void residual clause to impose his

ACCA-enhanced sentence. Instead, Bivins argued that now, under current law, his

aggravated assault convictions could not qualify under either the elements clause

or the enumerated offenses clause of the ACCA.

       On November 3, 2017, a magistrate judge issued a report recommending that

Bivins’s motion be denied. The report noted that Bivins did not dispute that his

prior conviction for possession of cocaine and marijuana with intent to sell or

deliver was a predicate offense under the ACCA. The report concluded that

Bivins’s two Florida aggravated assault convictions qualified as violent felonies

under the ACCA’s elements clause, citing Turner v. Warden Coleman FCI

(Medium), 709 F.3d 1328, 1338 (11th Cir. 2013). The report rejected Bivins’s

argument that Turner was wrongly decided, and explained that in United States v.

Golden, 854 F.3d 1256, 1257 (11th Cir.), cert. denied, ___ U.S. ___, 138 S. Ct. 197

(2017), this Court had recently said Turner remained binding precedent.

       Over Bivins’s objection, the district court adopted the report and denied

Bivins’s § 2255 motion. In the same order, the district court sua sponte granted

Bivins a certificate of appealability (“COA”) as to “[w]hether the Movant’s

conviction for Florida aggravated assault, pursuant to Fla. Stat. § 784.021, qualifies

       1
        In the district court, the government conceded that Bivins’ § 2255 motion was timely
under 28 U.S.C. § 2255(f)(3). Therefore, we do not address the timeliness issue.
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as a violent felony under the elements clause of the Armed Career Criminal Act, 18

U.S.C. § 924(e)(2)(B)(i).”2

                                     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). We review de novo

whether a prior conviction is a predicate offense within the meaning of the ACCA.

United States v. Robinson, 583 F.3d 1292, 1294 (11th Cir. 2009). Regardless of

the grounds stated in the district court’s order or judgment, this Court may affirm

on any ground supported by the record. Castillo v. United States, 816 F.3d 1300,

1303 (11th Cir. 2016).

B.     General Principles

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




       2
         We note that the district court’s COA does not specify an underlying constitutional issue
as required by 28 U.S.C. § 2253(c) and Spencer v. United States, 773 F.3d 1132, 1137-38 (11th
Cir. 2014) (en banc). Nonetheless, given that Bivins’s § 2255 motion based on Johnson raised a
constitutional issue—whether Bivins was sentenced under the unconstitutionally vague residual
clause of the ACCA—and given that the parties have briefed that constitutional issue on appeal,
we sua sponte expand the COA accordingly.
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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).

      In Johnson, the Supreme Court 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 collateral review. Welch

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

C.    Movant’s Burden

      While Bivins’s § 2255 motion was pending in the district court, this Court,

in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), addressed what a

§ 2255 movant must show to be entitled to relief under Johnson. To assert a claim

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based on Johnson, the movant must contend that he was sentenced under the

ACCA’s now-void residual clause. Beeman, 871 F.3d at 1221. 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. 3 Id. at 1220.

        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 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

circumstantial evidence, such as un-objected-to recommendations in the PSI that

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

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


        3
            Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276 (2013).
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may point to precedent at the time of sentencing “holding, or otherwise making

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

residual clause.” Id. at 1224.

       This inquiry is a question of “historical fact”—whether at the time of

sentencing the defendant was sentenced solely under the ACCA’s 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. at 1224 n.5.

       In short, a § 2255 movant carries 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

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.




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D. Bivins’s Johnson Claim

      Here, Bivins does not dispute that at the time of his 2013 sentencing, his

1997 Florida conviction for possession of cocaine and marijuana with intent to sell

or deliver qualified as a serious drug offense under 18 U.S.C. § 924(e)(2)(A).

Thus, Bivins can make out a Johnson claim only if he can point to some evidence

that the sentencing court relied on the now-void residual clause to find that his

other two ACCA predicate convictions, both for Florida aggravated assault,

qualified as violent felonies.

      On appeal, Bivins concedes, and we agree, that the record “is completely

silent” as to which clause of the ACCA the sentencing court relied on to find that

his aggravated assaults were violent felonies. The PSI identified the three

predicate convictions, but did not state under which clause of the ACCA any of the

three convictions qualified as predicates. At the sentencing hearing, the parties did

not discuss the issue, and the sentencing court did not make any explicit findings

about the ACCA predicates because Bivins’s armed-career-criminal status was not

in dispute.

      Finally, Bivins does not direct the Court’s attention to any precedent from

the time of his 2013 sentencing holding, or otherwise making obvious, that his

Florida aggravated assault convictions qualified as violent felonies only under the

residual clause. To the contrary, Bivins admits that two months before his


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sentencing, this Court issued its decision in Turner, which held that Florida

aggravated assault qualified as a violent felony under the ACCA’s elements clause.

See Turner, 709 F.3d at 1337-38.

      In other words, it is at least as likely, if not more so, that the sentencing

court, in light of this Court’s Turner, determined that Bivins’s Florida aggravated

assault convictions qualified under the elements clause. Under these

circumstances, Bivins has not proved that it is more likely than not that he was

sentenced as an armed career criminal under the now-void residual clause. See

Beeman, 871 F.3d at 1225. Because under our Beeman precedent Bivins failed to

carry his burden of proof, the district court did not commit reversible error in

denying his § 2255 motion.

E.    Florida Aggravated Assault

      Alternatively, even without Beeman and even if we examined Bivins’s

Florida aggravated assault conviction under current law (rather than as a historical

fact), Bivins has not shown that his two Florida aggravated assault convictions are

not violent felonies under the ACCA’s elements clause.

      To qualify under the ACCA’s elements clause, a felony crime must “ha[ve]

as an element the use, attempted use, or threatened use of physical force against the

person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The Supreme Court has held that

the phrase “physical force” in the elements clause means violent force, or “force


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capable of causing physical pain or injury to another person.” Curtis Johnson v.

United States, 559 U.S. 133, 140, 130 S. Ct. 1265, 1271 (2010).

      Under Florida law, an aggravated assault occurs when the defendant

commits an “assault,” either with a deadly weapon without intent to kill or with the

intent to commit a felony. Fla. Stat. § 784.0121 (1)(a)-(b). An assault, in turn, is

defined by Florida law as “an intentional, unlawful threat by word or act to do

violence to the person of another, coupled with an apparent ability to do so, and

doing some act which creates a well-founded fear in such other person that such

violence is imminent.” Fla. Stat. § 784.011 (1) (emphasis added).

      As mentioned above, this Court held in Turner that Florida aggravated

assault necessarily includes as an element the threatened use of physical force and

thus satisfies the ACCA’s elements clause. See Turner, 709 F.3d at 1338

(concluding that Florida aggravated assault will always include as an element the

threatened use of physical force because “by its definitional terms, the offense

necessarily includes an assault, which is an intentional unlawful threat by word or

act to do violence to the person of another, coupled with an apparent ability to do

so” (quotation marks omitted)).

      Although Bivins argues that Turner was wrongly decided, this Court has

repeatedly affirmed that Turner remains binding precedent. See, e.g., Golden, 854

F.3d at 1257 (concluding that Florida aggravated assault constitutes a crime of


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violence under the identical elements clause in U.S.S.G. § 4B1.2); see also United

States v. Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018) (concluding that a

defendant’s argument that Florida aggravated assault is not a violent felony under

the ACCA’s elements clause is foreclosed by Turner). Thus, Bivins still has three

qualifying ACCA predicate offenses and remains, even under current law, an

armed career criminal under the ACCA.

                               III. CONCLUSION

      For these reasons, Bivins has not shown that he is entitled to relief under

Johnson. Accordingly, we affirm the district court’s denial of his § 2255 motion

challenging his ACCA sentence based on Johnson.

      AFFIRMED.




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