The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12298
Non-Argument Calendar
____________________
DERRICK G. CARMICHAEL,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cv-01939-TWT
____________________
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2 Opinion of the Court 19-12298
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
This appeal involves the denial of Derrick Carmichael’s
motion to vacate his sentence under 28 U.S.C. § 2255. The case
comes before us for the second time. See Carmichael v. United
States, 758 F. App’x 860 (11th Cir. 2019) (unpublished). To briefly
repeat the relevant facts, Carmichael received the mandatory
minimum sentence of 15 years’ imprisonment under the Armed
Career Criminal Act after he pleaded guilty to firearm possession
by a felon in violation of 18 U.S.C. § 922(g), based on three felony
convictions under Georgia’s aggravated assault statute and one
conviction for cocaine possession with intent to distribute. Id. at
861. Carmichael contends that his sentence must be vacated
because his aggravated assault convictions were classified as
violent felonies under ACCA’s residual clause, which the Supreme
Court held was unconstitutionally vague. See Johnson v. United
States, 576 U.S. 591, 597, 606 (2015).
In our previous decision, we remanded for the district court
to apply the test this Circuit established in Beeman v. United States
to assess whether Carmichael has shown that he was more likely
than not sentenced as an armed career criminal “solely because of
the residual clause.” Carmichael, 758 F. App’x at 863; Beeman v.
United States, 871 F.3d 1215, 1224 (11th Cir. 2017). The issue
before us now is whether Carmichael has made that showing.
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19-12298 Opinion of the Court 3
After careful review, we conclude that he has not. We therefore
affirm the denial of his motion to vacate his sentence.
The Armed Career Criminal Act mandates a 15-year
minimum sentence for a criminal defendant convicted under 18
U.S.C. § 922(g) who already has three or more convictions “for a
violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1).
Now, an offense other than “burglary, arson, or extortion” or one
that “involves use of explosives” can qualify as a violent felony,
under ACCA’s elements clause, if it “has as an element the use,
attempted use, or threatened use of physical force against the
person of another.” Id. § 924(e)(2)(B)(i)–(ii). But before the
Supreme Court ruled ACCA’s residual clause unconstitutional in
Johnson v. United States, sentencing courts could also count
offenses as violent felonies if they involved “conduct that presents
a serious potential risk of physical injury to another.” Id.
§ 924(e)(2)(B)(ii). Because Johnson applies retroactively to cases on
collateral review, prisoners like Carmichael can challenge their
ACCA sentences as having been issued only under the
unconstitutional residual clause.1 See Welch v. United States, 578
U.S. 120, 135 (2016).
1 No claim under Descamps v. United States is before us. 570 U.S. 254 (2013).
Carmichael timely raised a Johnson claim that he was sentenced under the
residual clause, not a Descamps claim that he was incorrectly sentenced under
the elements clause. Carmichael v. United States, 758 F. App’x 860, 862–63
(11th Cir. 2019) (unpublished); see Beeman v. United States, 871 F.3d 1215,
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Beeman lays out two paths for a § 2255 movant aiming to
satisfy his burden of showing, as a matter of historical fact, that he
was sentenced solely under the residual clause. First, the movant
may point to evidence in the sentencing record that shows that the
district court relied only on the residual clause. Beeman, 871 F.3d
at 1224–25. That evidence may include, among other things,
statements by the sentencing judge or the parties. See id. at 1224
n.4. Second, the movant may show that “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. Such clear, binding precedent offers powerful circumstantial
evidence that the district court proceeded under the residual clause
alone. See id. To provide sufficient evidence of the district court’s
reasoning, the precedent must have “compelled the district court
to rely on the residual clause and only the residual clause.” Pitts v.
United States, 4 F.4th 1109, 1115 (11th Cir. 2021).
Carmichael concedes that the sentencing record does not
show that he was sentenced under the residual clause. So he turns
instead to the second path, seeking to establish that case law at the
time he was sentenced in 2009 made it obvious that an aggravated
assault in violation of Georgia law qualified as a violent felony only
under the residual clause. Because he relies on the state of the law
1220 (11th Cir. 2017). We therefore do not consider whether he was correctly
sentenced under the elements clause.
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19-12298 Opinion of the Court 5
at the time he was sentenced, our review is de novo. Williams v.
United States, 985 F.3d 813, 816 (11th Cir. 2021).
We assume for the purposes of this analysis that by the time
of Carmichael’s sentencing, Georgia law was sufficiently clear that
a conviction for aggravated assault could include offenses
committed with a mens rea of recklessness.2 See Patterson v. State,
299 Ga. 491, 492–95 (2016); see also United States v. Moss, 920 F.3d
752, 758 (11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th Cir.
2021) (en banc). And we recognize that later cases of the Supreme
Court and this Circuit, decided after Carmichael was sentenced,
have held that crimes requiring only a reckless mental state do not
qualify as violent felonies under ACCA’s elements clause. See
Borden v. United States, 141 S. Ct. 1817, 1825 (2021); Moss, 920
F.3d at 756–57. Still, Carmichael has failed to show that he was
sentenced under the residual clause, because he has pointed to no
binding precedent existing at the time of his sentencing that clearly
established that his aggravated assault crimes could only qualify as
violent felonies under the residual clause.
In 2004, the Supreme Court decided Leocal v. Ashcroft,
which held that crimes requiring only a negligent mental state do
not fall within a statutory definition that resembles ACCA’s
2Carmichael argued before the district court that the statute he violated also
covered accidental and negligent acts and therefore could not qualify under
ACCA’s elements clause at the time of his sentencing. But he does not raise
that argument on appeal, so we will not consider it. See Samak v. Warden,
FCC Coleman–Medium, 766 F.3d 1271, 1273 n.1 (11th Cir. 2014).
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6 Opinion of the Court 19-12298
elements clause. 543 U.S. 1, 8–10 (2004). Between that case and
the Supreme Court’s resolution of the issue in Borden v. United
States, circuit courts reached divergent decisions when addressing
whether statutes covering reckless conduct could qualify as violent
felonies under the elements clause—Leocal expressly declined to
reach that issue. Id. at 13; see Borden, 141 S. Ct. at 1823. This
Circuit, for its part, had not clearly decided the issue by the time of
Carmichael’s 2009 sentencing. As we explained in United States v.
Moss, our 2010 decision in United States v. Palomino Garcia
“compels the conclusion that the ACCA’s elements clause likewise
requires the intentional use of force” and so does not include
offenses that cover reckless conduct as defined by Georgia law.
Moss, 920 F.3d at 756–57 (citing United States v. Palomino Garcia,
606 F.3d 1317, 1336 (11th Cir. 2010)). But Carmichael’s sentencing
predated Palomino Garcia by around eight months, so that case
does not establish what the law was when Carmichael was
sentenced.
The murky state of the law at the time Carmichael was
sentenced does not support a conclusion that he was more likely
than not sentenced under the residual clause. No “clear precedent
showing that the court could only have used one clause or another”
existed at that time, and “merely persuasive authority on the state
of the law is insufficient to determine the sentencing court’s
reasoning.” Williams, 985 F.3d at 820 (quotation omitted). The
decisions of other circuit courts are not binding on district courts
within this Circuit. See Pitts, 4 F.4th at 1116 n.3.
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Cases decided by the time Carmichael was sentenced may
have laid the foundation for future binding decisions that excluded
crimes covering recklessness from the elements clause. That
nascent case law, however, would not have “compelled” the
district court to classify Carmichael’s aggravated assault
convictions as violent felonies only under the residual clause. See
id. at 1115. As Beeman described, a “decision today that Georgia
aggravated assault 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)” casts “very little
light, if any, on the key question of historical fact” at issue—
whether Carmichael was sentenced only under the residual clause.
871 F.3d at 1224 n.5. Carmichael cannot satisfy his burden of proof
with this weak evidence.
We AFFIRM the denial of Carmichael’s motion to vacate his
sentence.