Petition for Writ of Certiorari — Ezekiel Flowers, Petitioner v. United States

APPENDIX A

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 17-12051

Non-Argument Calendar

D.C. Docket Nos. 9:16-cv-81151-DMM; 9:12-cr-80012-DMM-1

EZEKIEL FLOWERS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Florida

(February 16, 2018)

Before WILSON, JORDAN and HULL, Circuit Judges.

PER CURIAM:

Ezekiel Flowers, a federal prisoner serving a 188-month sentence after being

convicted of being a felon in possession of a firearm, appeals the district court’s

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denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The district court granted Flowers a certificate of appealability (“COA”) on

whether his prior Florida convictions for aggravated assault with a deadly weapon

and felony battery qualify as violent felonies under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), in light of the Supreme Court’s decision in Samuel

Johnson v. United States, 576 U.S. _, 135 S. Ct. 2551 (2015). After careful

—_—?

review, and based on our precedent, we affirm.

I. BACKGROUND

In January 2012, a federal grand jury charged Flowers with a single count of

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(e)(1). Flowers pled not guilty and was convicted at trial in June 2012.

In calculating Flowers’s advisory guidelines range using the 2011

Guidelines Manual, the presentence report (“PSR”) determined that Flowers was

an armed career criminal under the ACCA based on these four Florida convictions:

(1) a 2003 robbery conviction, in violation of Fla. Stat. § 812.13; (2) a 2004 felony

battery conviction, in violation of Fla. Stat. § 784.041; (3) a 2005 conviction for

aggravated assault with a deadly weapon, in violation of Fla. Stat. § 784.021(1)(a);

and (4) a 2007 conviction for aggravated assault with a deadly weapon, in violation

of Fla. Stat. § 784.021(1)(a). In light of his armed career criminal status, the PSR

assigned Flowers a total offense level of 33 and a criminal history category of IV,

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resulting in a guidelines range of 188 to 235 months’ imprisonment. Additionally,

Flowers was subject to the ACCA’s 15-year (180-month) statutory mandatory

minimum sentence.

At his August 2012 sentencing, Flowers objected to the ACCA

enhancement, arguing that his Florida convictions for robbery and felony battery

did not qualify as violent felonies because the ACCA’s residual clause was

unconstitutionally vague. Flowers acknowledged, however, that this Court’s

binding precedent at the time foreclosed his challenge to the ACCA’s residual

clause.' The district court accordingly overruled Flowers’s objection and

ultimately sentenced him to 188 months’ imprisonment.

Flowers appealed, arguing among other things that his ACCA sentence

violated the Sixth Amendment because it was based on facts found by the district

court at sentencing, rather than by the jury at trial. United States v. Flowers, 531

F, App’x 975, 980, 984-85 (11th Cir. 2013). In August 2013, this Court affirmed

Flowers’s conviction and sentence on direct appeal. Id. at 985.

In June 2016, Flowers filed his present § 2255 motion to vacate. Flowers

argued that, following the Supreme Court’s 2015 decision in Samuel Johnson

'At that time, Flowers did not contest that his convictions for aggravated assault with a

deadly weapon counted as predicate offenses.

3

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striking down the ACCA’s residual clause, his prior Florida convictions no longer

qualified as ACCA predicate offenses.”

A magistrate judge issued a report and recommendation (“R&R”)

recommending that Flowers’s § 2255 motion be denied. The magistrate judge

concluded that, after Samuel Johnson, all of Flowers’s prior convictions remained

qualifying violent felonies under the ACCA’s elements clause. The district court

adopted the R&R over Flowers’s objections, but granted Flowers a COA on

whether his prior Florida convictions for aggravated assault with a deadly weapon

and felony battery qualify as violent felonies under the ACCA.

II. DISCUSSION’

Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is

subject to a mandatory minimum sentence of 15 years (180 months) if he has three

prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C.

?Flowers also contended that his prior convictions no longer qualify as predicate felonies

under U.S.S.G. § 2K2.1(a)(2), the guideline for his 18 U.S.C. § 922(g) firearm conviction, which

provides a higher base offense level for a defendant convicted of illegal firearm possession under

18 U.S.C. § 922(g) if that defendant has sustained two prior felony convictions for “crimes of

violence,” as defined in U.S.S.G. § 4B1.2(a), the career offender guidelines. U.S.S.G.

§§ 2K2.1(a)(2) & cmt. n.1, 4B1.2(a) (2011). Flowers reiterates that argument on appeal.

Flowers’s guidelines argument fails because the Supreme Court has held that Samuel Johnson

does not apply to the sentencing guidelines and, at a minimum, Flowers’s two convictions for

aggravated assault with a deadly weapon are valid predicates for the § 2K2.1(a)(2) increase. See

Beckles v. United States, 580 U.S. ,__, 137 S. Ct. 886, 890 (2017); see also, U.S.S.G.

§§ 2K2.1(a)(2), 4B1.2 cmt. n.1 (2011) (listing aggravated assault as a “crime of violence” for

purposes of the guidelines); United States v. Palomino Garcia, 606 F.3d 1317, 1332 (1 Ith Cir.

2010) (stating that the generic offense of aggravated assault under the guidelines includes assault

with a deadly weapon).

*We review de novo whether a prior conviction is a violent felony within the meaning of

the ACCA. United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014).

4

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§ 924(e)(1). A “violent felony” is any crime punishable by a term of imprisonment

exceeding one year that:

| has as an element the use, attempted use, or threatened use of

p

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 is referred to as the “elements clause,”

while the second prong contains the “enumerated crimes” and the “residual

clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). In Samuel

Johnson, the Supreme Court struck down the ACCA’s residual clause as

unconstitutionally vague, but did not call into question the validity of the ACCA’s

enumerated crimes or elements clause. 576 U.S. at___, 135 S. Ct. at 2563. Under

the elements clause, “the phrase ‘physical force’ means violent force—that is,

force 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).

A. Florida Felony Battery

Florida’s felony battery statute provides that a person commits felony

battery if he “[a]ctually and intentionally touches or strikes another person against

the will of the other,” and “[c]auses great bodily harm, permanent disability, or

permanent disfigurement.” Fla. Stat. 784.041(1)(a)-(b) (emphasis added). In

United States v. Vail-Bailon, this Court, sitting en banc, concluded that a

5

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conviction for felony battery under Fla. Stat. § 784.041 qualifies as a “crime of

violence” under U.S.S.G. § 2L1.2, which contains the same elements clause as the

ACCA. 868 F.3d 1293, 1297, 1308 (11th Cir.) (en banc), petition for cert.

docketed, No. 17-7151 (Dec. 20, 2017); see also, e.g., Gilbert v. United States, 640

F.3d 1293, 1309 n.16 (11th Cir. 2011) (en banc) (stating that, because the ACCA

definition of “violent felony” is nearly identical to the guidelines’ definition of

“crime of violence,” “decisions about one apply to the other’).

In Vail-Bailon, this Court explained that, unlike the simple battery statute at

issue in Curtis Johnson, Florida felony battery “requires more than a slight

unwanted touch.” Vail-Bailon, 868 F.3d at 1298. Rather, “in addition to touching

or striking a victim against his will, an offender must also cause the victim to

suffer significant bodily harm in order to be convicted of felony battery under

§ 784.041.” Id. Accordingly, this Court reasoned that felony battery under

§ 784.041 necessarily requires the use, attempted use, or threatened use of violent

physical force within the meaning of the elements clause. See id. at 1303. This is

so, this Court explained, because “intentional foree—even of the touching

variety—that in fact causes ‘great bodily harm, permanent disability, or permanent

disfigurement,’ as required to sustain a conviction under § 784.041, necessarily

constitutes force that is capable of causing pain or injury.” Id. This Court further

noted that, under Florida law, only severe physical injury satisfies the great bodily

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harm element of § 784.041, and “slight discomfort and minor injuries” are

insufficient to sustain a felony battery conviction. Id.

On appeal, Flowers acknowledges that Vail-Bailon presently forecloses his

challenge to the use of his Florida felony battery conviction as an ACCA predicate,

but contends Vail-Bailon was wrongly decided and may soon be overturned by the

Supreme Court. Unless and until the Supreme Court actually does so, however,

Vail-Bailon remains binding. United States v. Archer, 531 F.3d 1347, 1352 (11th

Cir. 2008) (explaining that this Court’s precedent remains binding “unless and

until it is overruled or undermined to the point of abrogation by the Supreme Court

or by this court sitting en banc”). Accordingly, the district court did not err in

concluding that, even after Samuel Johnson, Flowers’s felony battery conviction

remains a qualifying ACCA predicate offense under the elements clause.

B. ‘Florida Aggravated Assault

Florida’s aggravated assault statute defines “aggravated assault” as an

assault “(a) [w]ith a deadly weapon without intent to kill; or (b) [w]ith an intent to

commit a felony.” Fla. Stat. § 784.021(1).* By its plain terms, § 784.021 sets out

two separate aggravated assault crimes in the alternative: (1) aggravated assault

with a deadly weapon, or (2) aggravated assault with intent to commit a felony.

‘Section 784.021(1) provides in full:

(1) An “aggravated assault” is an assault:

(a) With a deadly weapon without intent to kill; or

(b) With an intent to commit a felony.

Fla. Stat. § 784.021(1).

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See id. § 784.021(1)(a)-(b). Here, the parties do not dispute that both of Flowers’s

prior Florida aggravated assault convictions were for aggravated assault with a

deadly weapon under Fla. Stat. § 784.021(1)(a).

In turn, Florida law defines “assault” 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).

In Turner v. Warden Coleman FCI (Medium), this Court held that

aggravated assault under Fla. Stat. § 784.021 categorically qualifies as a violent

felony under the elements clause of the ACCA. 709 F.3d 1328, 1337-38 (11th Cir.

2013), abrogated in part on other grounds by Samuel Johnson, 576 U.S. __, 135

S. Ct. 2551. This Court explained that Florida aggravated assault, “by its

definitional terms . . . 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.” Id. at 1338 (internal quotation marks omitted);

see also Fla. Std. Jury Instr. 8.2.° As such, “a conviction under section 784.021

*Florida’s standard jury instructions for aggravated assault provide:

To prove the crime of Aggravated Assault, the State must prove the following

four elements beyond a reasonable doubt. The first three elements define assault.

1. (Defendant) intentionally and unlawfully threatened, either by word or act,

to do violence to (victim).

2. At the time, (defendant) appeared to have the ability to carry out the

threat.

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will always include ‘as an element the . . . threatened use of physical force against

the person of another.’” Turner, 709 F.3d at 1338 (quoting 18 U.S.C.

§ 924(e)(2)(B)(i)). Although Turner was decided before Samuel Johnson, this

Court has since reaffirmed its holding as to Florida aggravated assault. See United

States v. Golden, 854 F.3d 1256 (11th Cir.) (per curiam), cert. denied, 138 S. Ct.

197 (2017).

As with Vail-Bailon above, Flowers contends that Turner and Golden were

wrongly decided. But again, unless and until the Supreme Court or this Court

sitting en banc overturns those decisions, they remain binding and foreclose

Flowers’s challenge to the use of his Florida aggravated assault convictions as

ACCA predicates. See Archer, 531 F.3d at 1352.

For the foregoing reasons, we affirm the district court’s denial of Flowers’s

§ 2255 motion to vacate his ACCA sentence.

AFFIRMED.

3. The act of (defendant) created in the mind of (victim) a well-founded fear

that the violence was about to take place.

Give 4a and/or 4b as applicable. If 4b is alleged, give the elements of the felony

charged.

4. a. The assault was made with a deadly weapon.

b. The assault was made with a fully-formed, conscious intent to commit

(felony charged) upon (victim).

See Fla. Std. Jury Instr. 8.2.

APPENDIX B

Case 9:16-cv-81151-DMM Document 19 Entered on FLSD Docket 04/26/2017 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.:16-CV-81151-MIDDLEBROOKS/BRANNON

(12-CR-80012)

EZEKIEL FLOWERS,

Movant,

v,

UNITED STATES OF AMERICA,

Respondent.

/

ORDER ADOPTING REPORT IN PART AND DENYING MOTION TO VACATE

SENTENCE UNDER § 2255

THIS CAUSE is before the Court on a Report and Recommendation issued by Magistrate

Judge Dave Lee Brannon on Movant’s Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255.

(DE 15). Movant filed Objections to the Report (DE 18).

After a de novo review of the record, the Report, and the Objections, I adopt the Report’s

recommendation that Movant’s motion should be denied. |

I do not, however, adopt the Report’s recommendation that a certificate of appealability

should not be issued. Pursuant to § 2253(c)(2), a district court may only issue a certificate of

appealability when “the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Finding that Movant has made such a showing, I

grant Movant a certificate of appealability on the following issue: whether Movant’s Florida

convictions for aggravated assault with a deadly weapon and felony battery qualify as crimes of

violence under the Armed Career Criminal Act after Johnson.

Case 9:16-cv-81151-DMM Document 19 Entered on FLSD Docket 04/26/2017 Page 2 of 2

It is ORDERED AND ADJUDGED that:

(1) The Report (DE 15) is ADOPTED IN PART. The Report is adopted, except as to its

recommendation that a certificate of appealability should not be issued.

(2) The Motion to Vacate (DE 1) is DENIED.

(3) A certificate of appealability is GRANTED on the following issue: whether

Movant’s Florida convictions for aggravated assault with a deadly weapon and felony battery

qualify as crimes of violence under the Armed Career Criminal Act after Johnson.

(4) The Clerk of Court shall CLOSE this case and DENY all pending motions as

MOOT.

his J @ day of

DONE AND ORDERED in Chambers in West Palm Beg

/ DONALD M. MIDDLEBROOKS

UNITED STATES DISTRICT JUDGE

April, 2017.

Copies to: Counsel of Record

APPENDIX C

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 16-81 151-Civ-Middlebrooks/Brannon

EZEKIEL FLOWERS,

Movant,

UNITED STATES OF AMERICA,

Respondent.

/

REPORT AND RECOMMENDATION

BEFORE THE COURT is Movant Ezekiel Flowers’ Motion to Vacate and Correct

Sentence Under 28 U.S.C. § 2255 [DE 1], which has been referred to the undersigned for a

report and recommendation. Flowers argues that he no longer qualifies as an armed career

criminal in light of the Supreme Court’s holding in Johnson v. U.S., 135 S. Ct. 2551 (2015)

(“Johnson”). He therefore argues that the sentence imposed by this Court pursuant to the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), must be vacated. The Government filed a

Response in Opposition [DE 7], arguing that Flowers’ sentence was lawfully imposed because

Flowers has three convictions that continue to qualify as valid ACCA predicate offenses even

after Johnson. The Court agrees with the Government and RECOMMENDS that the Motion

be DENIED. The Court further RECOMMENDS that no certificate of appealability shall issue

and that the Clerk of Court CLOSE THIS CASE.

Case 9:16-cv-81151-DMM Document 15 Entered on FLSD Docket 04/06/2017 Page 2 of 14

I. FACTUAL BACKGROUND

In January 2012, Flowers was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). At the time of the indictment, Flowers had

the following four Florida felony convictions: Two separate convictions for aggravated assault

with a deadly weapon under § 784.021(1)(a); a robbery conviction under § 812.13; and a

conviction for felony battery under § 784.041(1).

In June 2012, a jury found Flowers guilty of being a felon in possession of a firearm. The

Presentence Investigation Report (“PSI”) found that, for purposes of determining the applicable

guidelines range, Flowers had a criminal history category of IV and a total base offense level of

24, which included a four point enhancement under U.S.S.G § 2K2.1(a)(2) for having at least

two violent felony convictions [PSR § 11]. The PSI further found that Flowers was also subject

to the ACCA’s enhanced mandatory minimum sentence of 15 years because he had at least three

violent felony convictions [/d. J 17]. Flowers objected to the PSI’s ACCA enhancement

findings arguing, among other things, that (a) his felony convictions for robbery and battery do

not qualify as violent felony convictions under the ACCA; and (b) the ACCA’s “residual clause”

was unconstitutionally vague, citing Justice Scalia’s dissent in Sykes v. U.S., 564 U.S. 1 (2011)

[CR DE 83 { 3].

In August 2012, the Court overruled Flowers’ objections, adopted the PSI’s findings and

conclusions, and calculated an advisory guidelines range of 188 to 235 months [CR DE 88]. The

Court sentenced Flowers to 188 months imprisonment followed by five years of supervised

release. [/d.]. Flowers appealed his conviction, but did not raise the arguments made in his

objections to the PSI. Instead, he argued that the Court’s findings of his predicate ACCA

convictions violated the Sixth Amendment because the issue of whether he was previously

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convicted of those crimes should have been submitted to a jury and proved beyond a reasonable

doubt. The Eleventh Circuit affirmed Flowers’ conviction. [CR DE 110}.

Now, Flowers seeks to vacate and correct his sentence under 28 U.S.C. § 2255. He

argues that, in light of Johnson, he no longer has three violent felony convictions under the

ACCA. For that same reason, Flowers also argues that his four point base level enhancement

under U.S.S.G § 2K2.1(a)(2) should be vacated because he no longer has two violent felony

convictions either.

II. LEGAL STANDARD

To prevail on a § 2255 motion, a movant must demonstrate that: (1) the sentence was

imposed in violation of the Constitution or laws of the United States; (2) the Court was without

jurisdiction to impose such a sentence; (3) the sentence exceeded the maximum sentence

authorized by law; or (4) the sentence is otherwise subject to collateral attack, i.e., there is a

fundamental defect that results in a complete miscarriage of justice. 28 U.S.C. § 2255(a). Ifa

movant makes this showing, a court “shall vacate and set the judgment aside and shall discharge

the prisoner or resentence him or grant a new trial or correct the sentence as may appear

appropriate.” 28 U.S.C. § 2255(b). The movant bears a substantial burden in that he “must clear

a significantly higher hurdle than would exist on direct appeal.” U.S. v. Frady, 456 U.S. 152,

153 (1982).

lil, ANALYSIS

The ACCA provides for a 15 year minimum mandatory sentence for a defendant

convicted of being a felon in possession of a firearm if he has at least three convictions for a

“violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e). The ACCA defines a

“violent felony” as any crime punishable by at least a year in prison that: (1) has as an element —

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the use, or threatened use of physical force against the person of another (“Elements Clause”);

(2) is burglary, arson, or extortion, or involves the use of explosives (“Enumerated Clause”); or

(3) otherwise involves conduct that presents a serious potential risk to the physical injury to

another (“Residual Clause”). 18 U.S.C. § 924(e)(2)(B).

Because the ACCA provides for a sentencing enhancement, it is not driven by present

criminal conduct—it is driven by past convictions. Thus, the ACCA’s provisions are triggered

without regard to the manner in which the crime of being a felon in possession of a firearm is

committed: it applies equally to a defendant that was in the process of pawning a firearm to

divest himself of it, as it does to a defendant recklessly waving a shotgun around in a crowded

mall. Indeed, the ACCA’s sentencing enhancement is concerned with one thing and one thing

only—whether the defendant has three prior convictions for a “violent felony or a serious drug

offense, or both.” If he does, then his penalty for being a felon in possession of a firearm goes

from a maximum of 10 years in prison to a minimum of 15 years and a potential maximum of

life in prison.

With such a major difference in penalties, the statute’s clarity is critical. It is a basic

tenant of law—particularly criminal law—that the law must be sufficiently clear to provide

notice of what conduct is prohibited. To be sure, fundamental fairness and due process requires

notice before penalty. And from the legislature’s perspective, a clear law furthers objectives of

curbing behavior. Indeed, we would all be better versed on parking regulations if the penalty for

illegal parking was the forfeiture of one’s vehicle and driver’s license.

In the wake of this need for clarity, fairness, and policy, the Supreme Court’s struggle

with the ACCA is long standing. See e.g. Johnson, 135 S. Ct. at 2559-60 (“This Court is not the

only one that has had trouble making sense of the residual clause. The clause has created

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numerous splits among the lower federal courts, where it has proved nearly impossible to apply

consistently.’”) (quotations omitted); see also Sykes v. U.S., 564 U.S. 1 (2011); Johnson v. U.S.,

559 U.S. 133 (2010); Begay v. U.S., 553 U.S. 137 (2008); James v. U.S., 550 U.S. 192, 202

(2007). Each of these cases has trigged yet more litigation about ambiguities in the statute. One

can imagine an attorney’s difficulty in explaining the ACCA to a client in custody, much less its

application to concrete examples. That attorney would face the difficult task of looking the

client in the eye and explaining that he may be facing a life sentence, but at the same time he

may not be. And it does not depend on the manner in which he committed previous offenses, but

the nuances of each crime under state law and what statutory interpretation tools the sentencing

court utilizes. Some would say that any statute that has resulted in as much litigation as the

ACCA and that requires such explanation is severely, if not terminally, flawed.

In Johnson, the Supreme Court was again called upon to provide much needed guidance

on the ACCA’s application. What Johnson makes clear is that the ACCA’s Residual Clause is

unclear. The Residual Clause leaves “grave uncertainty about how to estimate the risk posed by

a crime.” Johnson, 135 S. Ct.at 2557. That is, “[i]t ties the judicial assessment of risk to a

judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Jd.

As such, the Supreme Court struck down the ACCA’s Residual Clause as unconstitutionally

infirm due to its vagueness. Id.

But, critically to this case, Johnson’s impact on the ACCA is limited. While the Supreme

Court struck down the Residual Clause, it did not call into question the remainder of the ACCA.

Thus, Johnson is of no help to Flowers if his convictions continue to qualify as violent felonies

under either the Elements or Enumerated Clauses. The parties rightfully recognize that Flowers’

convictions do not qualify as violent felonies under the Enumerated Clause, thus the Court’s

Case 9:16-cv-81151-DMM Document15 Entered on FLSD Docket 04/06/2017 Page 6 of 14

analysis will be limited to whether they qualify as violent felonies under the Elements Clause.

To qualify as a violent felony under the ACCA’s Elements Clause, a prior conviction

must have “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). In determining whether a movant’s prior

conviction meets that definition, courts must apply the “categorical approach.” U.S. v. Estrella,

758 F.3d 1239, 1244 (11th Cir. 2014) (quotations omitted). Courts applying the “categorical

approach” look only to “the statutory definitions—i.e., the elements—of a defendant’s prior

offenses, and nof to the particular facts underlying those convictions.” Descamps v. U.S., 133 S.

Ct. 2276, 2283 (2013) (quotations omitted) (emphasis in original). Therefore, whether the

defendant actually used, attempted to use, or threatened to use physical force against a person is

“quite irrelevant.” Estrella, 758 F.3d at 1245 (quotations omitted). The inquiry focuses on the

statutory elements alone. Jd.'

Thus, a conviction will qualify as a violent felony under the Elements Clause “only if the

statute on its face requires the government to establish, beyond a reasonable doubt and without

exception, an element involving the use, attempted use, or threatened use of physical force

against a person for every charge brought under the statute.” Estrella, 758 F.3d at 1244

(quotations omitted). The Supreme Court has explained that “the phrase ‘physical force’ means

violent force—that is, force capable of causing physical pain or injury to another person.”

' Though not relevant here, there are a “narrow range of cases” in which sentencing courts may

look beyond the statute and judgment of conviction and employ what is referred to as the

“modified categorical approach.” Descamps, 133 S. Ct. at 2283-84. That approach applies when

a statute is considered “divisible,” i.e., when it concerns a list of “alternative elements.” Jd. at

2285-86. Under those circumstances, in order to determine which element was relevant to the

defendant’s conviction, the court may review Shepard documents, which are limited to “the

charging document, written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.” Shepard v. U.S., 544 U.S. 13, 16

(2005). The focus of the “modified categorical approach” remains the same: a focus on the

elements of the crime rather than on the defendant’s underlying conduct.

6

Case 9:16-cv-81151-DMM Document 15 Entered on FLSD Docket 04/06/2017 Page 7 of 14

Johnson v. U.S., 559 U.S. 133, 140 (2010) (Curtis Johnson”) (emphasis in original).

Here, the Government argues that (a) Flowers’ Motion is procedurally barred; and (b)

Flowers still has at least three violent felony convictions under the ACCA’s Elements Clause,

making Johnson’s holding regarding the Residual Clause inapplicable. The Court will address

each argument in turn.

A. Procedural Default

As an initial matter, the Government rightfully acknowledges that Flowers’ Motion is

timely because it was filed within one year of the Johnson decision. Nonetheless, the

Government argues that the Court should not reach the Motion’s merits because Flowers did not

raise his arguments on direct appeal. The Court disagrees.

Generally, the procedural default rule requires that a defendant “advance an available

challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred

from presenting that claim in a § 2255 proceeding.” Lynn v. U.S., 365 F.3d 1225, 1234 (11th

Cir. 2004). A defendant, however, can avoid the procedural default bar (1) by demonstrating

good cause for not raising the arguments on appeal and that he suffered actual prejudice from the

alleged error; or (2) if the constitutional violation has probably resulted in the conviction of a

defendant who is “actually innocent.” Jd. The second exception is “exceedingly narrow in

scope” and “requires proof of actual innocence, not just legal innocence.” Ward v. Hall, 592

F.3d 1144, 1157 (11th Cir. 2010).

Here, the Court finds that Flowers has met the first exception to the procedural default

rule; cause and prejudice. A defendant meets the “cause” requirement by “showing that the legal

basis for a claim was not reasonably available to counsel” at the time of appeal. Ward, 592 F.3d

at 1157. A defendant makes this showing if “his situation is one where a court has articulated a

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constitutional principle that has not been previously recognized but which has been held to have

retroactive application.” Howard v. U.S., 374 F.3d 1068, 1072 (11th Cir. 2004) (internal

quotations and citations omitted). That decision must be “a sufficiently clear break with the

past,” so that counsel would not reasonably have had the tools for presenting the claim. Jd. The

quintessential example of such a scenario is when the Supreme Court explicitly overrules one of

its precedents because “there will almost certainly have been no reasonable basis upon which an

attorney previously could have urged a state court to adopt the position that [the Supreme Court]

has ultimately adopted.” Reed v. Ross, 468 U.S. 1, 17 (1984).

Applying that principle here, it is clear that the Supreme Court in Johnson overruled

established precedent by holding that the Residual Clause in the ACCA is unconstitutionally

vague.” As such, there is “cause” under the first exception to the procedural default rule.

And Flowers has also established the required “prejudice” under the exception. Flowers

argues that he was sentenced under a constitutionally defective statute and that he incorrectly

received a sentencing enhancement. Receiving an illegal sentence certainly satisfies the

prejudice prong. See Chatfield v. U.S., No. 16-22591-CIV, 2017 WL 1066776, at *5 (S.D. Fla.

Mar. 2, 2017), report and recommendation adopted No. 09-20870-CR, 2017 WL 1066779 (S.D.

Fla. Mar. 21, 2017) (“if the Petitioner has suffered an ‘illegal sentence’ on any count of

conviction, he has sufficiently alleged actual prejudice as a matter of law and habeas relief may

be warranted.”) (citations omitted).

? The Supreme Court had previously rejected vagueness challenges to the Residual Clause. See

Sykes, 564 U.S. at 15; James, 550 U.S. at 202.

> Because Flowers has met the first exception, the Court need not address the second. Chatfield,

2017 WL 1066776, at *5 (“Because Petitioner has met the first exception to the procedural

default rule, the Court need not consider the second exception”).

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B. Flowers’ ACCA Enhancement

Having found Flowers’ Motion procedurally proper, the Court will now address its

merits. Even after Johnson, Flowers’ enhancement was lawful if he committed three qualifying

offenses under the ACCA’s Elements Clause. But before addressing each of Flowers’ relevant

convictions, the Court will address the Government’s argument that, in order to obtain relief on

his Motion, Flowers must prove that the Court actually relied on the ACCA’s Residual Clause to

enhance his sentence. [DE 7 at p.7]. The Government relies solely on Jn re Moore, where the

Eleventh Circuit stated in dictum that:

[T]he district court cannot grant relief in a § 2255 proceeding unless the movant

meets his burden of showing that he is entitled to relief, and in this context the

movant cannot meet that burden unless he proves that he was sentenced using the

residual clause and that the use of that clause made a difference in the sentence. If

the district court cannot determine whether the residual clause was used in

sentencing and affected the final sentence—if the court cannot tell one way or the

other—the district court must deny the § 2255 motion. It must do so because the

movant will have failed to carry his burden of showing all that is necessary to

warrant § 2255 relief.

In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016). Based on this dicta, the Government argues

that any uncertainty in whether the Court relied on the Residual Clause at sentencing “must be

resolved to the benefit of the Government,” such that Flowers’ Motion must be summarily

denied. [DE 7 at p.7].

While it is unclear what part of the ACCA the Court relied on in enhancing Flowers’

sentence, the Court finds the Government’s argument unpersuasive. Shortly after In re Moore

was decided, the Eleventh Circuit issued Jn re Chance, 831 F.3d 1335 (11th Cir. 2016). There,

the Eleventh Circuit explained that Jn re Moore would (1) improperly require courts to ignore

controlling precedent solely because the sentencing judge didn’t utter “the magic words ‘residual

clause’”; and (2) imposes an unfair burden on defendants, especially because nothing at the time

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of sentencing required the judge to specify which ACCA clause was being relied on in imposing

a sentence. Jn re Chance, 831 F.3d at 1340. Thus, the Eleventh Circuit wholly discredited Jn re

Moore, and the Court rejects the Government’s argument.

The proper standard to apply, which has been articulated by numerous courts, is to grant

Flowers’ Motion if: (1) it is unclear from the record which ACCA clause the Court relied on at

sentencing; and (2) in light of Johnson, Flowers’ convictions no longer qualify as violent

felonies under the ACCA. See Leonard v. U.S., No. 16-22612-CIV, 2016 WL 4576040, at *2

(S.D. Fla. Aug. 22, 2016). While the Court finds that the first prong is met, Flowers’ Motion

should still be denied because he has three violent felonies under the ACCA’s Elements Clause,

making Johnson inapplicable.

l. Aggravated Assault with a Deadly Weapon

Flowers’ two separate convictions for Florida aggravated assault with a deadly weapon in

violation of § 784.021(1)(a) constitute violent felonies under the ACCA’s Elements Clause.

While not determinative, the Court notes that Flowers did not object at sentencing to the

classification of these crimes as violent felonies. Presumably, that is because it is quite clear that

they are. See In re Hires, 825 F.3d 1297, 1301 (11th Cir. 2016) (“This Court has held that a

Florida conviction for aggravated assault under § 784.021 is categorically a violent felony under

the ACCA’s elements clause.”); March v. U.S., No. 14-cv-19510, 2017 WL 840909, at *4 (M.D.

Fla. Mar. 3, 2017) (“the offense of aggravated assault qualifies as a violent felony under the

ACCA’s elements clause”). Thus, Flowers’ convictions for aggravated assault with a deadly

weapon continue to count as predicate acts under the ACCA even after Johnson.

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2. Robbery

Being that Flowers’ two convictions for aggravated assault with a deadly weapon

constitute violent felonies even after Johnson, his Motion must be denied if his prior conviction

for Florida robbery under § 812.13 also constitutes a violent felony. It does. See U.S. v. Bostick,

No. 16-11126, 2017 WL 164313, at *2 (11th Cir. Jan. 17, 2017) (holding that a robbery

conviction under § 812.13(1) qualifies as a violent felony under the ACCA’s elements clause);

accord U.S. v. Fritts, 841 F.3d 937, 942 (11th Cir. 2016); U.S. v. Lockley, 632 F.3d 1238, 1244

(11th Cir. 2011). Thus, even after Johnson, Flowers still has three predicate convictions under

the ACCA and his Motion should be denied. The analysis may stop here. In the interest of

completeness, however, the Court will address Flowers’ felony battery conviction.

3. Felony Battery

Under Florida law, “[a] person commits felony battery if he or she: (a) actually and

intentionally touches or strikes another person against the will of the other; and (b) [c]auses great

bodily harm, permanent disability, or permanent disfigurement.” Fla. Stat. § 784.041(1).

Flowers argues that, because felony battery may be committed merely by “touching,” it does not

require violent force and therefore is not a violent felony under the ACCA’s Elements Clause.

Flowers, however, ignores that the statute requires that the contact result in “great bodily harm,

permanent disability, or permanent disfigurement.” Fla. Stat. § 784.041(1)(b).

The Supreme Court in Curtis Johnson defined violent force as “force capable of causing

physical pain or injury to another person.” Johnson, 559 U.S. at 140. It is the Court’s view that

a person that suffers “great bodily harm, permanent disability, or permanent disfigurement” as

required by § 784.041(1)(b), has certainly suffered “physical pain or injury” as set forth in Curtis

Johnson. In other words, while it is true that the Florida felony battery statute has as an element

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of the offense “touching,” it is only when that “touching” is sufficiently violent to cause “great

bodily harm, permanent disability, or permanent disfigurement” that the statute is violated. In

the Court’s view, being that Florida felony battery requires that the touching result in physical

pain or injury, it necessarily means that the “touching” element meets the “violent force”

standard articulated in Curtis Johnson. Thus, a conviction under § 784.041(1) does constitute a

conviction for a violent felony.’

Indeed, in persuasive unpublished authority, the Eleventh Circuit has concluded that it is

impossible for a defendant to be convicted of Florida felony battery without having used the

“physical force” defined in Curtis Johnson. See Eady, 591 Fed. Appx. at 719 (holding that a

conviction for Florida felony battery necessarily requires a finding of the physical force defined

in Curtis Johnson), U.S. v. Crawford, 568 F. App'x 725, 727 (11th Cir. 2014) (“Crawford argues

that his prior conviction in Florida for felony battery does not qualify as a violent felony, but we

disagree. ... This offense qualifies as a violent felony under [the Elements Clause of the] Act”);

see also Eugene, 423 Fed. Appx. 908, 911 (11th Cir. 2011) (finding that Florida felony battery

qualified as a crime of violence under the career offender guidelines).

While the Eleventh Circuit recently held otherwise in U.S. v. Vail-Bailon, 838 F.3d 1091

(11th Cir. 2016), that decision has since been vacated. The Eleventh Circuit’s en banc opinion is

still pending, thus the question of “[w]hether mere intentional touching that nevertheless causes

* Notably, while Curtis Johnson held that a conviction for Florida simple battery under Fla. Stat.

§ 784.03 was not a violent felony, that crime does not require as an element that the touching

cause great bodily harm, permanent disability, or permanent disfigurement. Rather, a defendant

may be convicted of Florida simple battery by merely intentionally touching another person

against that person’s will, without causing bodily harm. That is very different from the statute

we are dealing with here that requires “great bodily harm, permanent disability, or permanent

disfigurement.” See U.S. v. Eady, 591 F. App'x 711, 719 (11th Cir. 2014) (distinguishing Curtis

Johnson because, “[a]lthough simple felony battery does not require actual harm to the victim,

felony battery under § 784.041 does.”); see also U.S. v. Eugene, 423 F. App’x 908, 911 (11th

Cir. 2011).

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great bodily harm, as in Florida's felony battery statute [] constitutes violent force under Curtis

Johnson is still an open question in this Circuit.” U.S. v. Moss, No. 16-13476, 2017 WL 462102,

at *3 n.4 (1 Ith Cir. Feb. 3, 2017).

Based on the persuasive authority identified above, and the definition of “violent force”

set forth in Curtis Johnson, the Court finds that a conviction under Florida’s felony battery

statute qualifies as a violent felony under the ACCA’s Elements Clause. Thus, while it is not

necessary to reach this issue because Flowers has three other ACCA predicate acts, the

conviction for Florida felony battery would make a fourth.

C. Flowers’ Sentencing Guidelines Claim

Flowers’ argument that Johnson applies to his enhancement under the sentencing

guidelines has been foreclosed by the Supreme Court’s decision in Beckles v. U.S., 137 S. Ct.

886 (2017), which held that the sentencing guidelines are not subject to void-for-vagueness

challenges like those at issue in Johnson. That has been the Eleventh Circuit’s position on the

issue even before Beckles. See U.S. v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015).

Even if Johnson were to apply to the sentencing guidelines, the above analysis also

forecloses Flowers’ claim because he continues to have at least two violent felony convictions

even after Johnson. Thus, Flowers’ sentencing guidelines claim fails for multiple reasons. |

IV. RECOMMENDATION

Johnson is of no help to Flowers. His convictions continue to qualify as violent felonies,

and his Motion should be denied. Additionally, the Court finds that no certificate of

appealability should be issued in this case. Rule 11(a) of the Rules Governing Section 2255

Proceedings provides that “[t]he district court must issue or deny a certificate of appealability

when it enters a final order adverse to the applicant.” A certificate of appealability shall issue

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only “if the applicant has made a substantial showing of a denial of a constitutional right.” 28

U.S.C. § 2253(2). To make this showing, the applicant must show “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). Here, Flowers

has not made this showing and a certificate of appealability is not warranted.

As such, it is RECOMMENDED that Movant Ezekiel Flowers’ Motion to Vacate and

Correct Sentence Under 28 U.S.C. § 2255 [DE 1] be DENIED. It is further RECOMMENDED

that no certificate of appealability shall issue and that the Clerk of Court CLOSE THIS CASE.

V. NOTICE OF RIGHT TO OBJECT

A party shall serve and file written objections, if any, to this Report and Recommendation

with U.S. District Judge Donald M. Middlebrooks within 14 days after being served with a copy.

28 U.S.C. § 636(b)(1)(C). Failure to file timely objections may limit the scope of appellate

review of factual findings contained herein. U.S. v. Warren, 687 F.2d 347, 348 (Lith Cir. 1982),

cert. denied, 460 U.S. 1087 (1983).

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 5th day of April,

2017.

CUnen Ie ecromrrgr

DAVE LEE BRANNON

U.S. MAGISTRATE JUDGE

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