              Case: 17-14126    Date Filed: 06/20/2018   Page: 1 of 8


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14126
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket Nos. 1:16-cv-02103-ODE-1,
                          1:92-cr-00174-ODE-WLH-1


RONALD BERNARD DANIEL,

                                                              Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                                 (June 20, 2018)

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Ronald Bernard Daniel, a federal prisoner, appeals the denial of his second

motion to vacate his sentence, which he obtained our permission to file. 28 U.S.C.
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§ 2255(a), (h). After expiration of the one-year statute of limitation, id.

§ 2255(f)(1), Daniel moved for relief on the ground that his two prior convictions

in Georgia for armed robbery did not qualify as predicate offenses to enhance his

sentence under the Armed Career Criminal Act in the wake of Descamps v. United

States, 570 U.S. 254 (2013), and Johnson v. United States, 135 S. Ct. 2551 (2015).

We granted Daniel a certificate of appealability to address “[w]hether the Georgia

armed robbery statute categorically . . . qualifies as a violent felony under [the

elements clause of the Act,] 18 U.S.C. § 924(e)(2)(B)(i).” While the appeal was

pending, we issued Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), and

the parties have addressed that decision in their response and reply briefs. Based on

Beeman, we affirm the denial of Daniel’s second motion to vacate.

      Daniel challenged his sentence of 327 months of imprisonment for

possessing an unlawful firearm, 26 U.S.C. § 5861(d), and for possessing a firearm

as a felon, 18 U.S.C. §§ 922(g), 924(e). Daniel’s presentence investigation report

classified him as an armed career criminal based on his prior convictions in

Georgia in 1977 for burglary and in 1978 for two counts of armed robbery. Daniel

objected to the use of his burglary conviction, but the district court overruled the

objection. See id. § 924(e). The district court calculated Daniel’s advisory

guideline range as 262 to 327 months, and sentenced him at the high end of that

range for being a felon in possession of a firearm and to a concurrent term of 120


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months for his possession of an unlawful firearm, followed by five years of

supervised release. We affirmed Daniel’s convictions and sentence, United States

v. Daniel, 9 F.3d 1559 (11th Cir. 1993) (unpublished table decision), and the

district court later denied a motion that Daniel filed seeking to vacate his sentence,

28 U.S.C. § 2255.

      After he obtained our permission to do so, Daniel filed a second motion to

vacate and challenged the use of his prior convictions for armed robbery, Ga. Code

Ann. § 26-1902, as predicate offenses under the Act. See 28 U.S.C. § 2255. Daniel

acknowledged that the district court failed to identify which clause of the Act it

used to classify his prior convictions as violent felonies, but he argued that the

convictions qualified only under the residual clause, which had been invalidated in

Johnson, 135 S. Ct. at 2557–58. Daniel also argued that his prior convictions did

not qualify under the elements clause because the armed robbery statute did not

require the use of “violent force,” Curtis Johnson v. United States, 559 U.S. 133,

140 (2010). See Descamps v. United States, 570 U.S. 254 (2013). The government

responded that Daniel’s motion was untimely, he failed to prove that he had been

sentenced under the residual clause, and his prior convictions qualified as predicate

offenses under the enumerated crimes and elements clauses of the Act.

      The district court denied Daniel’s second motion to vacate on the ground

that his prior convictions were categorically violent felonies under the elements


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clause of the Act. The district court did not address the timeliness of Daniel’s

motion or whether he proved that he was sentenced under the residual clause.

      “When we review the denial of a motion to vacate a sentence, we review

legal conclusions de novo and findings of fact for clear error.” Spencer v. United

States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (internal citations and

quotation marks omitted). “We may affirm on any ground supported by the

record.” Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (quoting

LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir.2014)). When a certificate

of appealability fails to mention procedural claims that must be resolved for the

panel to reach the merits, we assume that the certificate encompasses any

procedural claims that must be addressed on appeal. McCoy v. United States, 266

F.3d 1245, 1248 n.2 (11th Cir. 2001).

      The Armed Career Criminal Act increases prison sentences for defendants

who have three prior convictions for violent felonies or serious drug offenses. The

Act 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.



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18 U.S.C. § 924(e)(2)(B). The first part of the definition is referred to as the

elements clause, while the second part contains what are referred to as the

enumerated crimes and residual clauses. United States v. Owens, 672 F.3d 966, 968

(11th Cir. 2012).

      We address separately claims for relief that are based on Johnson and

Descamps because they “make two very different assertions.” Beeman, 871 F.3d at

1220. “A Johnson claim contends that the defendant was sentenced as an armed

career criminal under the residual clause,” Beeman, 871 F.3d at 1220, and the

resulting enhancement of his sentence “denies due process of law” because the

clause is void for vagueness, Johnson, 135 S. Ct. at 2557–58. “[A] Descamps

claim asserts that the defendant was incorrectly sentenced as an armed career

criminal under the elements or enumerated offenses clause,” Beeman, 871 F.3d at

1220, because the elements of the indivisible statute under which the defendant

was convicted punishes a broader range of conduct than the federal generic crime,

Descamps, 570 U.S. at 257.

      In Beeman, which we decided after the district court denied Daniel’s second

motion to vacate, we held that a claim based on Descamps does not trigger the one-

year period of limitation, 28 U.S.C. § 2255(f), but that a claim based on Johnson

does trigger the limitations period and is timely if brought within one year of the

issuance of the opinion. 871 F.3d at 1219–20. To obtain relief based on Johnson,


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the postconviction movant must prove that his sentence “enhancement was due to

use of the residual clause.” Id. at 1222. “In other words, he must show that the

clause actually adversely affected the sentence he received.” Id. at 1221. The

movant must prove that “(1) [] the sentencing court relied solely on the residual

clause to qualify a prior conviction as a violent felony, as opposed to also or solely

relying on either the enumerated offenses clause or elements clause, and (2) []

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. If

the record is unclear, and “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.

      The district court did not err by denying Daniel’s second motion to vacate.

Daniel’s challenge to his prior convictions for armed robbery serving as predicate

offenses under the elements clause, which is a Descamps claim, was untimely. See

id. at 1219–20. Daniel’s challenge based on the residual clause, which is a Johnson

claim, was timely because he filed his postconviction motion six days before

expiration of the extended one-year limitation period to bring such a claim. See id.

at 1219. But Daniel’s Johnson claim fails on the merits.




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      Daniel failed to prove “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 1222. Daniel does not argue that the sentencing court relied on the residual

clause; rather, he contends that his prior convictions for armed robbery do not

qualify as violent felonies under the elements clause. Daniel’s presentence

investigation report used his armed robbery convictions to classify him as an

armed career criminal, but the report did not state how the convictions qualified as

predicate offenses. And, as Daniel acknowledged in his postconviction motion, the

sentencing court did not explain why his armed robbery convictions qualified as

violent felonies. Nothing in the record supports Daniel’s argument that the district

court relied on the residual clause to enhance his sentence under the Act. Because

“the evidence does not clearly explain what happened . . . [Daniel,] the party with

the burden[,] loses.” Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357

(11th Cir. 2001)).

      Daniel argues that the government is “rais[ing] . . . for the first time the

defense that . . . [he] failed to meet his burden of proof on his Johnson claim,” but

the record shows otherwise. The government opposed Daniel’s second

postconviction motion and argued that “[t]he Eleventh Circuit has made clear that

Defendant bears the burden of demonstrating . . . that, on the merits of [his] claim,

he succeeds,” that “includes a requirement that Defendant show that he was


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sentenced using the residual clause,” and Daniel “cannot prove that the residual

clause played any part in the determination that he was an armed career criminal”

when his “attack[ is] based . . . on the enumerated and elements clauses . . . .” And

the government cited In re Chance, 831 F.3d 1335 (11th Cir. 2016), and quoted a

paragraph from In re Moore, 830 F.3d 1268 (11th Cir. 2016), requiring the

defendant to prove “that the use of [the residual] clause made a difference in the

sentence” and cautioning that he “fail[s] his burden of showing all that is necessary

to warrant § 2255 relief” when “the district court cannot determine . . . one way or

another . . . whether the residual clause was used in sentencing and affected the

final sentence,” id. at 1273. The government argued to the district court that Daniel

failed to prove his Johnson claim.

      We AFFIRM the denial of Daniel’s second motion to vacate.




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