Bargeron v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BURL L. BARGERON,

Petitioner,

vs. Case No.: 3:15-cv-1455-MMH-JBT

3:09-cr-156-MMH-JBT

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

This case is before the Court on Petitioner Burl Bargeron’s “Motion to

Reconsider Order Denying 28 U.S.C. § 2255 Motion and Denying a Certificate of

Appealability.” (Civ. Doc. 26, Motion for Reconsideration).1 Previously, the Court

denied Bargeron’s challenge to his Armed Career Criminal Act (ACCA) sentence based

on 28 U.S.C. § 2255 and Johnson v. United States, 135 S. Ct. 2551 (2015).2 In doing

so, the Court reaffirmed the ruling it made at the sentencing hearing, which is that

Bargeron has three prior convictions for a “serious drug offense,” each committed on

occasions different from one another. (Civ. Doc. 24, Order Denying Amended § 2255

1 Citations to the record in the underlying criminal case, United States vs. Burl L.

Bargeron, No. 3:09-cr-156-MMH-JBT, will be denoted as “Crim. Doc. __.” Citations to the

record in the civil § 2255 case, No. 3:15-cv-1455-MMH-JBT, will be denoted as “Civ. Doc. __.”

2 Under the ACCA, a person convicted of being a felon in possession of a firearm is

subject to an enhanced 15-year mandatory minimum sentence if he has three or more prior

convictions for a “violent felony” or a “serious drug offense,” or both, “committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). In Johnson, the Supreme Court held that

the ACCA’s residual clause, part of the definition of a “violent felony” under § 924(e)(2)(B)(ii),

is unconstitutionally vague.

Motion). Bargeron contends that the Court erred, and seeks relief under Rules 59(e)

and 60(b) of the Federal Rules of Civil Procedure. The United States responded in

opposition (Civ. Doc. 28, Response), and Bargeron replied (Civ. Doc. 32, Reply). The

United States also filed a notice of supplemental authority to alert the Court to United

States v. Longoria, 874 F.3d 1278 (11th Cir. 2017) (Civ. Doc. 33, Notice of Supp. Auth.),

to which Bargeron responded (Civ. Doc. 34, Response to Notice of Supp. Auth.). The

Court also has considered the parties’ supplemental briefs concerning the effect of

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

930 F.3d 1263 (11th Cir. 2019). (Civ. Doc. 42, United States’ Supp. Br. on Beeman;

Civ. Doc. 43, Bargeron’s Supp. Br. on Beeman; Civ. Doc. 54, United States’ Supp. Br.

on Weeks; Civ. Doc. 55, Bargeron’s Supp. Br. on Weeks). On this record the Motion for

Reconsideration is ripe for the Court’s resolution.

The Court need not repeat the facts and history of the case, or the Court’s

reasons for rejecting Bargeron’s challenge to the ACCA sentence. Those are set forth

in the previous Order denying the Amended § 2255 Motion, which the Court

incorporates by reference. For the reasons below, the Motion for Reconsideration is

due to be denied.

I. Standard

Pursuant to Rule 59, a party may move to alter or amend the judgment no later

than 28 days after its entry. Fed. R. Civ. P. 59(e). Pursuant to Rule 60, a party may

move for relief from judgment “within a reasonable time,” and for certain grounds, “no

more than a year after the entry of the judgment or order or date of the proceeding.”

Fed. R. Civ. P. 60(c)(1). Bargeron timely moved for reconsideration exactly 28 days

after the entry of judgment. As such, his request for relief is governed by Rule 59(e).3

Rule 59(e) affords the Court discretion to reconsider an order which it has

entered. See Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000); O’Neal v.

Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992). “The only grounds for granting a

Rule 59 motion are newly-discovered evidence or manifest errors of law or fact.” Arthur

v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quotations and citations omitted). This

Court has interpreted those parameters to include “(1) an intervening change in

controlling law; (2) the availability of new evidence; and (3) the need to correct clear

3 The Federal Rules of Civil Procedure do not specifically provide for the filing of a motion

for reconsideration. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991);

Controlled Semiconductor, Inc. v. Control Systemation, Inc., No. 6:07-cv-1742-Orl-31KRS,

2008 WL 4459085, at *1 (M.D. Fla. Oct. 1, 2008). It is widely recognized, however, that Rule

59(e) (which governs motions “to alter or amend a judgment”) encompasses motions for

reconsideration. Controlled Semiconductor, Inc., 2008 WL 4459085, at *1 (citing 11 Charles

Alan Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice & Procedure 2d § 2810.1

(2007)). (cont’d)

In his Motion, Bargeron cites both Rule 59(e) and Rule 60(b) as the basis for the relief

he seeks. Motion at 1. Upon review of the Motion, it appears that Bargeron seeks

reconsideration of the merits of the dispute addressed in the Court’s Order Denying Amended

§ 2255 Motion, consistent with the purposes of Rule 59(e). Shaarbay v. Florida, 269 F. App’x

866, 867 (11th Cir. 2008) (citing Wright v. Preferred Research, Inc., 891 F.2d 886, 889 (11th

Cir. 1990)). Additionally, Bargeron filed the Motion within twenty-eight days after the entry

of the Order Denying Amended § 2255 Motion, as required by Rule 59(e). See Sussman v.

Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994); see also Rance v. D.R.

Horton, Inc., 316 F. App’x 860, 863 (11th Cir. 2008) (explaining that a post-judgment motion

to alter or amend the judgment served within the time for filing a Rule 59 motion other than

a motion to correct purely clerical errors, “is within the scope of Rule 59(e) regardless of its

label”); Mahone v. Ray, 326 F.3d 1176, 1177 n.1 (11th Cir. 2003). Accordingly, the Motion is

properly construed as falling under Rule 59(e). Moreover, even if the Court were to consider

the Motion under Rule 60(b), doing so would not produce a different result. “A ‘significantly

higher’ standard is generally used to decide whether a movant is entitled to relief under Rule

60(b).” Holland v. Tucker, No. 06-CIV-20182, 2012 WL 2412115, at *2 n.1 (S.D. Fla. June 26,

2012) (quoting Vanderberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir. 2001)). Therefore, if

Bargeron is not entitled to relief under Rule 59(e), he also is not entitled to relief under Rule

60(b), and the Court need not address his arguments under Rule 60(b) separately.

error or manifest injustice.” Lamar Advertising of Mobile, Inc. v. City of Lakeland,

Fla., 189 F.R.D. 480, 489 (M.D. Fla. 1999). For example, reconsideration may be

appropriate where “the Court has patently misunderstood a party.” O’Neill v. The

Home Depot U.S.A., Inc., 243 F.R.D. 469, 483 (S.D. Fla. 2006).

The purpose of Rule 59 is not to ask the Court to reexamine an unfavorable

ruling in the absence of a manifest error of law or fact. Jacobs v. Tempur-Pedic Int’l.,

Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). As such, Rule 59(e) cannot be used “to

relitigate old matters, raise argument or present evidence that could have been raised

prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408

F.3d 757, 763 (11th Cir. 2005). Additionally, motions to alter or amend “should not be

used to raise arguments which could, and should, have been made before the judgment

was issued.” O’Neal, 958 F.2d at 1047 (quotations and citations omitted). Indeed,

permitting a party to raise new arguments on a motion for reconsideration “essentially

affords a litigant ‘two bites of the apple.’” Am. Home Assurance Co. v. Glenn Estess &

Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985); see also Mincey, 206 F.3d at 1137

n.69 (citation omitted); Mays v. United States Postal Service, 122 F.3d 43, 46 (11th

Cir. 1997) (“[A] motion to reconsider should not be used by the parties to set forth new

theories of law”). Accordingly, the Eleventh Circuit Court of Appeals has held that the

“[d]enial of a motion for reconsideration is especially sound when the party has failed

to articulate any reason for the failure to raise the issue at an earlier stage of the

litigation.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir. 2001)

(internal quotations and citation omitted). Moreover, “[w]hen evaluating a motion for

reconsideration, a court should proceed cautiously, realizing that ‘in the interests of

finality and conservation of scarce judicial resources, reconsideration of a previous

order is an extraordinary remedy to be employed sparingly.’” United States v. Bailey,

288 F. Supp. 2d 1261, 1267 (M.D. Fla. 2003) (citation omitted).

II. Discussion

In the Motion for Reconsideration (Civ. Doc. 26), Bargeron rehashes many of

the same arguments he raised in the “Memorandum in Support of 28 U.S.C. § 2255

Motion” (Civ. Doc. 19, Supporting Memorandum): i.e., that the Court cannot rely on

Shepard4 documents to make the ACCA’s different-occasions determination, and even

if it could, the available documents either were not Shepard-approved or did not

support a finding that Bargeron’s prior drug offenses were committed on different

occasions. (Compare Supporting Memorandum at 4-8 with Motion for Reconsideration

at 3-15). In denying Bargeron’s Amended § 2255 motion, the Court considered and

rejected each of these arguments. Order Denying Amended § 2255 Motion at 8 n.7, 13-

18 & n. 11-14. Thus, the United States responded that Bargeron had not “identif[ied]

new evidence or controlling case law that the Court overlooked in its earlier ruling,”

but rather “simply repeats prior arguments that previously failed to convince [the

Court].” Response at 2. At the time the United States filed the Response, the Court

would have agreed with that statement.

But circumstances changed. On September 22, 2017, the Eleventh Circuit Court

of Appeals decided Beeman v. United States, 871 F.3d 1215, which clarified the

4 Shepard v. United States, 544 U.S. 13 (2005).

framework for analyzing challenges under § 2255 to the ACCA enhancement in the

wake of Johnson, 135 S. Ct. 2551. Then, a little over a month after that, the Eleventh

Circuit decided United States v. Longoria, 874 F.3d 1278. In Longoria, the Eleventh

Circuit reaffirmed its prior holdings that a district court may (indeed, must) rely on

Shepard documents to make the ACCA’s different-occasions determination. Id. at

1282-83. After receiving briefing on Longoria (Civ. Docs. 33, 34), the Court directed

the parties to file supplemental briefs addressing the impact of Beeman. (Civ. Doc. 35).

The parties submitted their briefs concerning Beeman on March 25, 2019 (Civ. Docs.

42, 43), but only a few months later, the Eleventh Circuit decided Weeks v. United

States, 930 F.3d 1263. In Weeks, the Eleventh Circuit addressed how to apply Beeman

where a § 2255 petitioner, like Bargeron, challenged his ACCA sentence on direct

appeal. Id. at 1275. Weeks prompted a new round of supplemental briefing, which the

parties completed in January 2020. (See Civ. Docs. 54, 55).

Needless to say, the legal landscape has changed since the Court denied

Bargeron’s Amended § 2255 Motion. However, it has not changed in a way that is

overall favorable to Bargeron. The Court begins with Beeman, a decision that clarified

two things about § 2255 claims based on Johnson. First, Beeman clarified how to

distinguish claims based on Johnson from claims based on Descamps v. United States,

133 S. Ct. 2276 (2013), and how the statute of limitations applies to each type of claim.

Beeman, 871 F.3d at 1219-21. Second, Beeman clarified the standard for evaluating

the merits of a Johnson claim. Id. at 1221-25. It is the second point that is important

here.5 The Beeman court held that for a prisoner to successfully challenge his ACCA

sentence based on Johnson, he must prove “more likely than not” that the sentencing

court relied on the residual clause to impose the ACCA enhancement. Id. at 1220-22.

Only if the movant would not have been sentenced as an armed career

criminal absent the existence of the residual clause is there a Johnson

violation. That will be the case 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. The court explained that “[i]f 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 Beeman court further explained

that whether the sentencing court relied on the residual clause is a “historical fact,”

which is determined by reference to the state of affairs that existed at the time of

sentencing. See id. at 1224 n.5. Thus, decisions rendered afterward holding that a

particular offense no longer qualifies under one of the other ACCA clauses “cast[ ] very

little light, if any, on th[is] key question of historical fact.” Id.

5 For the sake of discussion, the Court accepts Bargeron’s contention that the statute of

limitations does not preclude Bargeron from raising the different-occasions issue because of

the unique procedural history of this case, which has resulted in the § 2255 proceedings being

Bargeron’s first opportunity for review of the different-occasions ruling. Bargeron’s Supp. Br.

on Weeks at 5-7; Millender v. United States, 774 F. App’x 613, 614 (11th Cir. 2019). But that

only means that the Court does not consider Bargeron’s different-occasions challenge to be

time-barred. It does not change this Court’s conclusion that Bargeron’s ACCA enhancement

was, and is, supported by three prior convictions for a serious drug offense, each committed

on different occasions.

According to Beeman, a prisoner can establish that the sentencing court relied

on the residual clause in two ways. First, the prisoner can point to “direct evidence:

comments or findings by the sentencing judge indicating that the residual clause was

relied on and was essential to application of the ACCA in that case.” Id. at 1224 n.4.

Alternatively, absent direct evidence, there will

sometimes be sufficient circumstantial evidence to show the specific basis

of the enhancement. For example, there could be statements in the PSR

[Presentence Investigation Report], which were not objected to,

recommending that the enumerated clause and the elements clause did

not apply to the prior conviction in question and did not apply to other

prior convictions that could have served to justify application of the

ACCA. Or the sentencing record may contain concessions by the

prosecutor that those two other clauses do not apply to the conviction in

question or others.

Id. A prisoner also may prove circumstantially that the ACCA sentence depended on

the residual clause “if the law was clear at the time of sentencing that only the residual

clause would authorize a finding that the prior conviction was a violent felony.” Id. at

1224 n.5 (emphasis added). However, if “‘the evidence does not clearly explain what

happened … the party with the burden loses.’” Id. at 1225 (citation omitted).

The Eleventh Circuit later clarified the scope of the historical record for

purposes of applying Beeman. In Weeks, the court held that

in a § 2255 motion asserting a Samuel Johnson claim where the claimant

challenged his ACCA sentencing enhancement on direct appeal, … it is

appropriate to consider the record of what transpired at sentencing and

through the pendency of the direct appeal, as well as the legal landscape

through that time.

Weeks, 930 F.3d at 1280. “[I]t is necessary in such a case to look to the record and

binding precedent through the time of direct appeal to determine whether the

claimant has shown ‘that—more likely than not—it was use of the residual clause that

led to the ... enhancement of his sentence.’” Id. at 1275 (quoting Beeman, 871 F.3d at

1222).

Equally significant is the Eleventh Circuit’s intervening decision in Longoria,

874 F.3d 1278. There, the Eleventh Circuit considered whether a defendant qualified

as an armed career criminal where he had one prior conviction for conspiracy to

distribute cocaine and two prior convictions for discrete acts of distributing cocaine,

both of which occurred during the course of the conspiracy. Id. at 1279, 1280. Just as

Bargeron did at sentencing, Longoria argued that because the two acts of distribution

occurred within the scope of the conspiracy, the conspiracy offense was not committed

on an occasion different from the distribution offenses. See id. at 1280. And just as

Bargeron argued in these proceedings, Longoria argued that “the District Court

improperly considered ‘non-elemental facts,’ the dates of his prior convictions, in

determining that they qualified as serious drug offenses that occurred on different

occasions under the ACCA.” Id. However, the Eleventh Circuit rejected both of these

arguments. First, the court held that depending on the facts, “a drug conspiracy and

a substantive drug offense occurring within its span may have been ‘committed on

occasions different from one another’ under the ACCA.” Id. at 1282. The court cited its

prior holdings in United States v. Rice, 43 F.3d 601 (11th Cir. 1995), and United States

v. Hansley, 54 F.3d 709 (11th Cir. 1995), where it ruled that a substantive drug offense

and an overlapping conspiracy were sufficiently distinct to count as separate offenses

for purposes of the recidivist enhancement under 21 U.S.C. § 841(b)(1)(A). Longoria,

874 F.3d at 1281-82 (citing also United States v. Melbie, 751 F.3d 586, 587 (8th Cir.

2014)). Second, the court reaffirmed its prior holdings that “‘for ACCA purposes,

district courts may determine both the existence of prior convictions and the factual

nature of those convictions, including whether they were committed on different

occasions, so long as they limit themselves to Shepard-approved documents.’” Id. at

1283 (emphasis in original) (quoting United States v. Timothy Weeks, 711 F.3d 1255,

1259 (11th Cir. 2013), abrogated on other grounds by Descamps, 133 S. Ct. 2276).

Thus, the court held that it was appropriate for the district court to consult Shepard

documents to determine whether the defendant’s conspiracy offense and substantive

drug offenses were committed on different occasions. Id.

The upshot of these intervening decisions is that Bargeron is not entitled to

relief. Longoria directly confirms the ruling that this Court has now made twice: that

two discrete drug distribution offenses may be considered separate from an

overlapping conspiracy offense, depending on a review of Shepard-approved sources.

(Civ. Doc. 7-3, Sentencing Transcript Volume III at 3-10); Order Denying Amended §

2255 Motion at 11-14 & n.9, n.11. And as the Court has already explained, the Shepard

documents revealed that the conspiracy offense for which Bargeron was convicted was

geographically, temporally, and substantively distinct from the two drug trafficking

offenses for which he was also convicted. Order Denying Amended § 2255 Motion at

14-18 & n.12-14. Bargeron’s primary argument in the Motion for Reconsideration was

that the Court erred in making the different-occasions determination using Shepard

documents, Motion for Reconsideration at 3-13, but Longoria forecloses that

argument.6

Bargeron also argues that the Court erred by relying on the 2003 Presentence

Investigation Report (“PSR”) in making the different-occasions determination because

it is not a Shepard document. Motion for Reconsideration at 9-12. Relying on United

States v. Braun, 801 F.3d 1301 (11th Cir. 2015), Bargeron contends that a PSR from

a prior, unrelated criminal offense is not a Shepard-approved source. However, the

Court reminds Bargeron that he ignores a distinction between this case and Braun. In

Braun, the defendant did not assent to the factual correctness of the prior PSR because

he contested its accuracy at his later sentencing hearing. Id. at 1302, 1306. Here by

contrast, Bargeron did not dispute the accuracy of the 2003 PSR during the instant

sentencing proceedings. Instead, his own counsel went further, describing it as “the

best evidence in terms of the assessment of the events” surrounding the prior

conspiracy offense, and stated that “the Court can rely clearly on what was in the prior

presentence investigation report.” (Civ. Doc. 7-2, Sentencing Transcript Volume II at

24). As the Eleventh Circuit has repeatedly held, a court may rely on undisputed facts

6 Alternatively, Bargeron argues that, under the oldest precedent rule, the Court should

disregard Longoria because it conflicts with the Eleventh Circuit’s earlier decision in United

States v. Sneed, 600 F.3d 1326 (11th Cir. 2010). Response to Notice of Supp. Auth. at 2-4. The

Court perceives no conflict with Sneed because in Sneed itself, the Eleventh Circuit instructed

sentencing judges to consult Shepard documents in making the different-occasions

determination. 600 F.3d at 1332-33. Nor does Longoria obviously conflict with the United

States Supreme Court’s holdings in Descamps, 133 S. Ct. 2276, and Mathis v. United States,

136 S. Ct. 2243 (2016), neither of which addressed the ACCA’s different-occasions inquiry.

Moreover, even if Longoria is arguably inconsistent with Descamps or Mathis, that does not

give the Court license to ignore the Eleventh Circuit’s decisions. United States v. Fritts, 841

F.3d 937, 942 (11th Cir. 2016) (“Under this Court’s prior panel precedent rule, there is never

an exception carved out for overlooked or misinterpreted Supreme Court precedent.”); Smith

v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically reject any exception

to the prior panel precedent rule based upon a perceived defect in the prior panel's reasoning

or analysis as it relates to the law in existence at that time.”).

in a PSR for purposes of sentencing. United States v. McCloud, 818 F.3d 591, 596 (11th

Cir. 2016) (“The Shepard documents in this case include … undisputed statements in

the PSI.”); United States v. Beckles, 565 F.3d 832, 843 (11th Cir. 2009) (“For purposes

of sentencing, the district court also may base its factual findings on undisputed

statements found in the PSI, because they are factual findings to which the defendant

has assented.”) (citation omitted). Thus, Bargeron has failed to show that the Court

erred – let alone manifestly erred – in relying on the 2003 PSR to determine that each

of his prior drug offenses were committed on occasions different from one another.

Besides, putting aside the 2003 PSR, the Court also relied on the indictment

and the plea agreement from the 2003 conspiracy offense to make the different-

occasions determination. See Sent. Tr. Vol. III at 5, 7. A plea agreement and a charging

instrument are indisputably Shepard-approved documents. Shepard, 544 U.S. at 16,

26. Here, the indictment and the plea agreement from the 2003 conspiracy offense

reflected that Bargeron joined the conspiracy in November 2001, well before he

committed the other two substantive drug offenses upon which the ACCA sentence

was based (the latter two offenses occurring on May 16, 2002, and May 30, 2002). See

Sent. Tr. Vol. III at 5, 7. The prior plea agreement also reflected that some of the

conduct underlying the conspiracy took place in Suwannee County, Florida, making

the conspiracy geographically distinct from the substantive drug offenses as well. See

id. at 7. As such, Bargeron’s contention that the Shepard documents did not support

the different-occasions finding lacks merit.

Beeman and Weeks offer Bargeron no refuge. Bargeron seizes on Weeks to

argue that the record on direct appeal reflects that his ACCA sentence depended on

the residual clause, but the Court disagrees. As noted earlier, the Court explicitly

ruled at the sentencing hearing that Bargeron was an armed career criminal because

he had three prior convictions for a serious drug offense, each committed on different

occasions. Sent. Tr. Vol. III at 3-10. Although Bargeron also had a prior conviction for

burglary under Florida law, PSR at ¶ 37, the Court made no reference to that

conviction or to the residual clause in imposing the ACCA enhancement. In his direct

appeal, Bargeron “argue[d] that the district court erred in applying the ACCA 15–year

minimum sentence because his conspiracy offense did not occur on a different occasion

than his two trafficking offenses.” United States v. Bargeron, 435 F. App'x 892, 893

(11th Cir. 2011). The Eleventh Circuit did not resolve Bargeron’s argument one way

or the other. Instead, it sidestepped the issue by pointing to Bargeron’s burglary

conviction. The court reasoned:

In this case, even if the district court erred by concluding that Bargeron's

conspiracy conviction qualified as a third predicate ACCA conviction, any

such error was harmless. Bargeron stipulated to a 1999 Florida

conviction for burglary of a structure. Burglary of a structure, at the time

of Bargeron's offense, constituted a generic burglary to the extent the

crime involved a building because it criminalized the unlawful entering

or remaining in a building with the intent to commit an offense

therein. Compare Fla. Stat. 810.02(1)(a) (1998) with Taylor, 495 U.S. at

599, 110 S. Ct. 2143.[7] To the extent the offense involved the curtilage of

a building, it involved conduct that presented a serious potential risk of

physical injury to another. See Matthews, 466 F.3d at 1275–76.[8] And at

minimum, a Florida burglary offense was punishable by up to 5 years

imprisonment. See Fla. Stat. § 810.02(4) (1998); Fla. Stat. §

775.082(3)(d) (1998). Consequently, regardless of whether the offense

involved a building or its curtilage, burglary of a structure qualified as a

“violent felony.”

7 Taylor v. United States, 495 U.S. 575 (1990).

8 United States v. Matthews, 466 F.3d 1271 (11th Cir. 2006).

Moreover, Bargeron's burglary offense occurred on a different occasion

than his two trafficking offenses….

Bargeron, 435 F. App'x at 894.

Bargeron argues that in light of Weeks, the above decision means that his

ACCA sentence came to rest on the residual clause. The Court disagrees for two

reasons. First, the decision on direct appeal does not alter the bases articulated by this

Court for imposing the ACCA enhancement. Although the Eleventh Circuit affirmed

the result by considering Bargeron’s burglary conviction, it neither affirmed nor

overruled this Court’s decision that Bargeron was an armed career criminal based on

having three separate convictions for a serious drug offense. Because the Eleventh

Circuit avoided the different-occasions issue altogether, it left this Court’s different-

occasions ruling undisturbed. As such, Bargeron has not shown, even taking into

account the record on direct appeal, that “there were not at least three other prior

convictions that could have qualified … as a serious drug offense.” Beeman, 871 F.3d

at 1221. This conclusion is bolstered by the fact that in Longoria, the Eleventh Circuit

resolved the different-occasions issue it left unanswered in Bargeron’s appeal, holding

that a conspiracy offense may be considered a distinct ACCA predicate from any

overlapping substantive drug offenses. 874 F.3d at 1281-82 & n.12 (citing, inter alia,

Bargeron, 435 F. App’x 892). Second, even to the extent the Eleventh Circuit

considered Bargeron’s burglary conviction, the court did not “rel[y] solely on the

residual clause, as opposed to also or solely relying on either the enumerated offenses

clause or elements clause … to qualify [the] prior [burglary] conviction as a violent

felony.” Beeman, 871 F.3d at 1221. As the Eleventh Circuit’s opinion stated,

Bargeron’s burglary conviction “constituted a generic burglary to the extent the crime

involved a building” and “[t]o the extent the offense involved the curtilage of a

building, it involved conduct that presented a serious potential risk of physical injury

to another.” Bargeron, 435 F. App’x at 894. Thus, the court did not clarify whether it

relied on the enumerated offense clause or the residual clause. It is true, as Bargeron

observes, that “the Eleventh Circuit made no finding that Mr. Bargeron’s burglary

conviction rested on burglary of a building.” Bargeron’s Supp. Br. on Weeks at 4. But

the Eleventh Circuit also made no finding that Bargeron’s burglary conviction rested

on burglary of the curtilage either. And where the record is unclear, as it is here, that

ambiguity is resolved against the § 2255 movant because the movant has the burden

of proof, not the government. Beeman, 871 F.3d at 1221, 1225. Because “it is just as

likely that the [appellate] court relied on the elements or enumerated offenses clause,

solely or as an alternative basis for the enhancement, [Bargeron] has failed to show

that his enhancement was due to use of the residual clause.” Id. at 1222.

Finally, Bargeron urges the Court not to follow Beeman because Beeman was

wrongly decided and conflicts with the Eleventh Circuit’s earlier decision in Mays v.

United States, 817 F.3d 728 (11th Cir. 2016). Bargeron’s Supp. Br. on Beeman at 1-7.

However, the Eleventh Circuit has rejected that argument, observing that “[n]othing

in Mays considered or reached any conclusion that, in deciding the merits of a stand-

alone Johnson claim, the habeas court must also reach out to make sure that the

sentencing court complied with Descamps.” Beeman v. United States, 899 F.3d 1218,

1223 n.3 (11th Cir. 2018) (denying rehearing en banc). Bargeron encourages the Court

to follow the approach set out by the Fourth and Ninth Circuit Courts of Appeals,

which is to (1) determine whether the record shows that the sentencing court may

have relied on the residual clause, and if so, (2) turn to current law to determine if the

ACCA sentence can be sustained. United States v. Winston, 850 F.3d 677, 682-86 (4th

Cir. 2017); United States v. Geozos, 870 F.3d 890, 896-97 & n.6 (9th Cir. 2017) (same),

abrogation on other grounds recognized by Ward v. United States, 936 F.3d 914, 919

(9th Cir. 2019). But this Court is “bound by the panel’s holding in Beeman,” regardless

of whether Beeman arguably conflicts with other decisions. Perez v. United States,

730 F. App’x 804, 810-11 (11th Cir. 2018); see also Fritts, 841 F.3d at 942 (there is no

exception to the prior panel precedent rule “for overlooked or misinterpreted Supreme

Court precedent.”). Besides, accepting Bargeron’s invitation to apply the approach of

the Fourth and Ninth Circuits would not help him. As the Court has explained,

Bargeron remains an armed career criminal under current precedent based on

Longoria and his three convictions for a serious drug offense.

III. Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c)(1)

If Bargeron seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted, either with respect to this

Order or the prior Order denying the Amended § 2255 Motion. This Court should issue

a certificate of appealability only if the petitioner makes "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this substantial

showing, Bargeron "must demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong," Tennard v.

Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),

or that "the issues presented were 'adequate to deserve encouragement to proceed

further,'" Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner's constitutional claims on the

merits, the petitioner must demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S.

at 484. Bargeron argues that, at a minimum, reasonable jurists could debate whether

his claims have merit because other circuits have adopted a different approach to

Johnson claims than Beeman. Bargeron’s Supp. Br. on Beeman at 7-8. However, a

circuit conflict does not warrant a COA, “[a]nd no COA should issue where the claim

is foreclosed by binding circuit precedent ‘because reasonable jurists will follow

controlling law.’” Hamilton v. Sec'y, Fla. Dep't of Corr., 793 F.3d 1261, 1266 (11th Cir.

2015) (quoting Gordon v. Sec’y, Fla. Dep’t of Corr., 479 F.3d 1299, 1300 (11th Cir.

2007)). Therefore, upon consideration of the record as a whole, this Court will deny a

COA.

Accordingly, it is hereby ORDERED:

1. Petitioner Burl Bargeron’s “Motion to Reconsider Order Denying 28 U.S.C. §

2255 Motion and Denying a Certificate of Appealability” (Civ. Doc. 26) is

DENIED.

2. If Bargeron appeals the denial of this Motion, the Court denies a certificate of

appealability. Because this Court has determined that a certificate of

appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 5th day of April, 2021.

Ad LL Mol Hau

United States District Judge

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Copies:

Counsel of record

Burl Bargeron

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