                Case: 11-10531      Date Filed: 06/14/2013      Page: 1 of 8


                                                                     [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 11-10531
                              ________________________

           D.C. Docket Nos. 9:10-cv-80231-KLR; 0:98-cr-06137-KLR-1

JOHN EDWARD GORDON,

                                                                 Petitioner-Appellant,

                                           versus

UNITED STATES OF AMERICA,

                                                                 Respondent-Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________
                                   (June 14, 2013)



Before MARCUS, HILL, and SILER, * Circuit Judges.


SILER, Circuit Judge:


*
 Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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      Gordon, a federal prisoner, appeals the district court’s denial of his motion

to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. For the following

reasons, we affirm.

                                         I.

      In 2000, Gordon pled guilty to charges including assault on a federal officer,

theft of government property, bank robbery, and felony firearm possession. The

presentence investigation report (“PSR”) produced a United States Sentencing

Guidelines (“USSG”) range of 140-175 months but recommended that Gordon be

subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). The PSR read, in pertinent part:

      Chapter Four Enhancements: Pursuant to USSG § 4B1.4(a), a
      defendant who is subject to an enhanced sentence under the provisions
      of 18 U.S.C. § 924(e) is an armed career criminal. In this case, the
      defendant possessed a Sig Sauer 9 millimeter semi automatic pistol.
      The defendant was convicted on July 22, 1992 of Possession with
      Intent to Distribute Cocaine . . . and September 7, 1993 of Robbery
      and Kidnaping. Pursuant to USSG § 4B1.4(b)(3)(A), the offense level
      for an armed career criminal shall be 34, if the defendant possessed
      the firearm in connection with a violent offense.

The ACCA’s enhanced penalty increased Gordon’s Guidelines range to 188-235

months and exposed him to a mandatory minimum prison sentence of 15 years.

See 18 U.S.C. § 924(e)(1). He was also subject to a minimum term of five years

imprisonment to run consecutive to any other term imposed, under § 924(c). In

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2002, Gordon was sentenced to 248 months imprisonment, followed by a five-year

term of supervised release. He did not object to the PSR or the application of the

ACCA, and he did not appeal his sentence.

      In 2010, Gordon filed a motion to vacate sentence under § 2255, arguing that

he is actually innocent of being an armed career offender under the ACCA. He

argues that, at the time of his sentencing, he did not meet the ACCA’s requirement

of three prior convictions for serious drug offenses or crimes of violence

committed on occasions different from one another. Specifically, he contends that

his 1993 robbery and kidnaping offenses occurred simultaneously and, therefore,

should not have counted separately for purposes of the ACCA. Additionally, he

attempts to rely on the “actual innocence exception” to overcome both the one-year

statute of limitations for § 2255 motions and his procedural default in failing to file

a direct appeal.

      The government concedes that a mistake was made in Gordon’s PSR and

that the robbery and kidnaping counts were, indeed, committed on a single

occasion. The government maintains, however, that Gordon is still an armed

career offender based on an unscored conviction for an attempted robbery that

occurred on the same day as the scored robbery and kidnaping. Although the

attempted robbery was not included in the original PSR, Gordon to admitted the

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conviction during his plea colloquy. In response to Gordon’s § 2255 motion, the

government submitted a revised PSR that included the attempted robbery

conviction. Gordon objected to the district court’s consideration of the revised

PSR in light of United States v. Canty, 570 F.3d 1251, 1256 (11th Cir. 2009). He

also argues that the attempted robbery was part of the same criminal episode as the

scored robbery and kidnaping and, therefore, should not be counted separately.

      The magistrate judge issued a report and recommendation recognizing that

the PSR under which Gordon was sentenced did not contain the requisite three

predicate convictions to support an ACCA enhancement. The magistrate judge

determined, however, that Canty did not preclude the court’s consideration of the

revised PSR. The magistrate judge also found that Gordon’s claim of actual

innocence was meritless based on the attempted robbery conviction. In other

words, the government proved that Gordon had three prior convictions that made

him eligible for sentencing under the ACCA.          The district court adopted the

magistrate judge’s report and recommendation in its entirety.             We granted

Gordon’s application for a certificate of appealability on the questions of:

      (1)   Whether the district court erred in denying the actual innocence
         exception in this case, and
      (2) Whether the district court erred in allowing consideration of
         new evidence to show that Gordon had the requisite prior
         convictions under the ACCA.

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                                         II.

      When considering a district court’s denial of a § 2255 motion, we review

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

States, 400 F.3d 864, 867 n. 3 (11th Cir. 2005).

      Gordon argues that our decision in Canty, 570 F.3d at 1256, bars the

government from introducing the revised PSR in response to his § 2255 motion.

Canty involved a defendant who pled guilty to various charges and received an

ACCA-enhanced sentence. The PSR listed all of Canty’s prior convictions, but did

not state which of them were serious drug crimes or violent felonies for purposes

of the ACCA. While the government did not object to the PSR, Canty did,

alleging that documents included to prove his prior convictions were improper

under Shepard v. United States, 544 U.S. 13, 26 (2005).           The government

disclaimed reliance on the facts stated in the PSR and offered certified copies of

four state convictions to prove the ACCA predicates. The district court overruled

Canty’s objections and sentenced him under the ACCA.

      On appeal, we determined that, in light of United States v. Archer, 531 F.3d

1347 (11th Cir. 2008), Canty’s two convictions for carrying a concealed weapon

were not crimes of violence for purposes of the ACCA. The government argued

that Canty’s PSR listed other prior convictions that were ACCA predicates and,

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thus, Canty should still be sentenced pursuant to the ACCA. We held, however,

that the record did not support the sentencing enhancement, as the district court

failed to make findings on the number of violent felonies or serious drug

convictions, or whether the underlying crimes were committed on separate

occasions. Canty, 570 F.3d at 1255-57. Because the government disclaimed

reliance on the PSR, we declined to consider it in determining whether Canty had

other predicates to trigger application of the ACCA.         We also rejected the

government’s argument that the case should be remanded for resentencing to

provide it a second chance to prove Canty’s predicate convictions. Id. at 1257. In

reaching that decision, we relied heavily on the fact that the government had

expressly disclaimed any reliance on the facts in the PSR. The government made

no such waiver in the case at bar.

      After Canty, we decided United States v. Martinez, 606 F.3d 1303 (11th Cir.

2010). In Martinez, we limited Canty to its facts, noting that we had not held “that

an appellate panel was barred from fashioning an appropriate mandate, including

allowing the government to present additional evidence on remand for

resentencing.” Martinez, 606 F.3d at 1305. Here, as in Martinez, strong reasons

exist for allowing the government to present the additional evidence. Gordon did

not object to the PSR or his sentence under the ACCA. Additionally, Gordon

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admitted to the unscored conviction during his plea colloquy, so the government’s

introduction of the conviction is not new evidence that was previously unknown to

the parties and the court.

      Because Gordon did not carry his burden of proof of actual innocence with

respect to the ACCA enhancement, we need not consider whether actual innocence

can be a gateway to relief from a noncapital sentence. Additionally, Gordon’s

argument that the attempted robbery was part of the same occurrence as his other

ACCA predicates is meritless on its face. While the police reports contained in the

PSR reveal that the attempted robbery involved a separate victim at a different

time, we need not consider that information. Firmly established principles of law

hold that Gordon could not have been convicted of both attempted robbery and the

completed crime of robbery with respect to the same specific incident. See, e.g.,

Blockburger v. United States, 284 U.S. 299, 304 (1932). Accordingly, Gordon’s

petition was properly denied.

      AFFIRMED.




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HILL, Circuit Judge, Concurring:

      I concur in the judgment.




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