McKenzie v. United States of America (INMATE 3)
Filing
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MEMORANDUM OPINION AND ORDER: Accordingly, it is ORDERED as follows: (1 McKenzie's objections (Doc. # 29 ) are OVERRULED; (2) The Recommendation of the Magistrate Judge (Doc. # 26 ) is ADOPTED in accordance with this Memorandum Opinion and Order; (3) McKenzie's 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence (Doc. # 1 ) is DENIED; and (4) This action is DISMISSED with prejudice. Final judgment will be entered separately. Signed by Honorable Judge William Keith Watkins on 5/8/2019. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
LEWIS McKENZIE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CASE NO. 3:16-CV-466-WKW
[WO]
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
In 2003, McKenzie was sentenced under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on his conviction for possession of a firearm
by a convicted felon, see 18 U.S.C. § 922(g)(1), and his three qualifying prior
convictions. See § 924(e) (imposing a fifteen-year mandatory minimum sentence
on any defendant “who violates section 922(g) . . . and has three previous convictions
. . . for a violent felony or a serious drug offense, or both”). In 2015, the Supreme
Court held that the definition of “violent felony” in the ACCA’s residual clause, see
§ 924(e)(2)(B), is unconstitutionally vague. Johnson v. United States, 135 S. Ct.
2551, 2563 (2015). In 2016, the Supreme Court held that Johnson is retroactively
applicable to cases on collateral review. Welch v. United States, 136 S. Ct. 1257,
1268 (2016). After Welch, McKenzie filed this timely § 2255 motion seeking relief
under Johnson on grounds that he no longer has three prior qualifying convictions
under the ACCA and, thus, is not eligible for an enhanced sentence. He moves the
court to grant his § 2255 motion, vacate his current sentence, and resentence him
without consideration of the ACCA.
Before the court is the Recommendation of the Magistrate Judge (Doc. # 26)
that this court deny McKenzie’s motion because he cannot show, as he must under
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), that it is more likely than
not that his sentence on his § 922(g)(1) conviction was enhanced under the ACCA’s
residual clause in violation of Johnson. McKenzie objects. Based upon a de novo
review of those portions of the Recommendation to which McKenzie objects, see 28
U.S.C. § 636(b)(1), the court overrules McKenzie’s objections, adopts the
Recommendation, and denies McKenzie’s § 2255 motion.
II. DISCUSSION
In Beeman, the Eleventh Circuit held that, “[t]o prove a Johnson claim, the
movant must show that — more likely than not — it was use of the residual clause
that led to the sentencing court’s enhancement of his sentence.” 871 F.3d at 1221–
22. “[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; see also generally United States v. Pickett, 916 F.3d
2
960, 963 (11th Cir. 2019) (explaining that Beeman “provided a precedential answer
to what a [Johnson] movant needed to show to succeed on a § 2255 motion”). The
Johnson movant’s burden is tied to “historical fact” — whether at the time of
sentencing the defendant was “sentenced solely per the residual clause.” Beeman,
871 F.3d at 1224 n.5. Hence, a decision rendered after sentencing “casts very little
light, if any, on the key question of historical fact.” 1 Id. The Eleventh Circuit has
explained that, under Beeman, “[t]o determine this ‘historical fact,’” the § 2255 court
“look[s] first to the record” and, if the record is not determinative, “to the case law
at the time of sentencing.” Pickett, 916 F.3d at 963. “Sometimes the answer will be
clear — ‘[s]ome sentencing records may contain direct evidence: comments or
findings by the sentencing judge indicating that the residual clause was relied on and
was essential.’” Id. (quoting Beeman, 871 F.3d at 1224 n.4). The court “might also
look elsewhere in the record, to a PSI, for example, to find ‘circumstantial
evidence.’” Id. at 963–64 (quoting Beeman, 871 F.3d at 1224 n.4).
The sentencing court found that McKenzie had three qualifying prior
convictions under the ACCA.
Although the record is silent as to which of
McKenzie’s prior convictions qualified, in this § 2255 proceeding, the parties agree
1
The government initially conceded that McKenzie’s sentence must be vacated because
his third-degree burglary conviction today no longer qualifies as an ACCA predicate offense.
After Beeman, given the Eleventh Circuit’s focus on historical fact, the government withdrew its
concession. (Doc. # 22, at 11, 23–24.)
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that those convictions were: (1) a 1986 Alabama conviction for distribution of
marijuana; (2) a 1986 Alabama conviction for burglary in the third degree; and (3) a
1991 Alabama conviction for arson in the second degree. McKenzie argues that he
has made the required showing under Beeman because, at the time of his sentencing
hearing, his prior Alabama convictions for second-degree arson and third-degree
burglary only qualified as “violent felonies” under the now-void residual clause in
§ 924(e)(2)(B)(ii).
The Magistrate Judge disagrees.
The Magistrate Judge
concludes that “[t]he record and the relevant law when McKenzie was sentenced do
not suggest that the district court relied solely on the residual clause to find that
McKenzie’s Alabama second-degree arson conviction was a violent felony for
purposes of the ACCA.”
(Doc. # 26, at 19–20.)
He opines further that,
notwithstanding precedent today that Alabama third-degree burglary is not a violent
felony under the enumerated-offenses clause because it is not generic burglary, “the
case law was not clear at the time of [McKenzie’s] sentencing that only the residual
clause, and not also the enumerated-offenses clause, would authorize a finding that
an Alabama third-degree burglary conviction was a violent felony.” (Doc. # 26,
at 12.) Accordingly, the Magistrate Judge recommends that this court find that
McKenzie cannot prevail on his Johnson claim.
McKenzie’s objections are twofold.
First, McKenzie challenges the
Recommendation’s findings addressing his Alabama conviction for second-degree
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arson under Alabama Code § 13A-7-42. (See Doc. # 26, at 15–20.) Second,
focusing on the Magistrate Judge’s findings regarding his Alabama conviction for
third-degree burglary, McKenzie contends that the Magistrate Judge erred in failing
to hold an evidentiary hearing. McKenzie’s objections will be overruled. The
Eleventh Circuit’s decision in Beeman compels the denial of McKenzie’s motion,
and McKenzie has not shown that he is entitled to an evidentiary hearing.
A.
McKenzie has not shown that it is more likely than not that the district
court relied only on the residual clause to find that his Alabama second-degree
arson conviction qualified as a violent felony under the ACCA.
One takeaway from Beeman is this: It is difficult for a Johnson movant to
satisfy his burden when the sentencing record is silent as to whether the district court
relied upon the residual clause to find that the conviction qualified as an ACCA
predicate. Denying relief in Beeman, the Eleventh Circuit explained why its Johnson
movant had not carried his burden on the silent sentencing record:
Beeman concedes that there is nothing in the record suggesting that the
district court relied on only the residual clause in sentencing him. In
his § 2255 motion, he stated in conclusory terms that the district court
must have relied on the residual clause, but nothing in the record
supports this argument; and Beeman has pointed to no precedent in
2009 holding, or otherwise making obvious, that a violation of
Georgia’s aggravated assault statute qualified as a violent felony only
under the residual clause. Instead, citing to no authority, his motion
merely asserts in general terms that “a Georgia conviction for
aggravated assault . . . [has] historically qualified as an ACCA predicate
under [the ACCA]’s residual clause.” Beeman — relying only on cases
involving Florida burglary convictions — also contends that this Court
has “been using the residual clause as a default home for many state
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statutes that might otherwise have been counted under the elements or
enumerated crimes clauses.” These general observations, however, are
not enough to carry his burden of establishing that he, in fact, was
sentenced as an armed career criminal here solely because of the
residual clause.
Beeman, 871 F.3d at 1224; see also Ubele v. United States, 742 F. App’x 417, 420
(11th Cir. 2018) (“[T]he silence of record leaves no basis to conclude that the
residual clause alone was used to qualify his 1998 Georgia arson conviction as a
violent felony.”).
This case, like Beeman, presents a silent sentencing record as to whether the
residual clause played any part in McKenzie’s ACCA-enhanced sentence. First,
there is nothing explicit in the sentencing record revealing even whether McKenzie’s
enhanced sentence encompassed his 1991 Alabama arson conviction.
The
presentence report (“PSI”) provides only that McKenzie “is subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e)” (Doc. # 3-3, at 8), without
specifying which of McKenzie’s prior convictions qualified as ACCA predicate
offenses. Second, assuming as the parties do that the arson conviction was one of
the three convictions that counted, the PSI does not indicate which clause of the
ACCA’s definition of “violent felony” applied. Third, there are no statements at the
sentencing hearing — by either the district court or the parties — that suggest that
the district court relied only on the residual clause in finding that McKenzie had
three qualifying prior convictions under the ACCA. In fact, there is no mention
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during the sentencing hearing of McKenzie’s Alabama arson conviction. Given that
there were no factual objections to the ACCA’s application, the silence is
unsurprising. 2 But that silence leaves McKenzie in the same position as the movant
in Beeman — with “nothing in the record suggesting that the district court relied on
only the residual clause in sentencing him.” 871 F.3d at 1224.
Fourth, as in Beeman, McKenzie has not pointed to any case law — either
binding or non-binding — that existed at the time of sentencing that would indicate
that the district court more likely than not relied only on the residual clause to find
that his Alabama second-degree arson conviction qualified as a violent felony. This
court, like the Magistrate Judge, did not find any precedent from this circuit that
analyzed Alabama’s second-degree arson statute under the residual clause. See
Beeman, 871 F.3d at 1224 (noting that the movant had identified no “precedent [from
the time he was sentenced] holding, or otherwise making obvious, that a violation of
[his state crime] qualified as a violent felony only under the residual clause”). No
further analysis is needed to find that McKenzie cannot prove his Johnson claim.
But, even if McKenzie could show that the sentencing court had in mind that
McKenzie’s second-degree arson conviction “qualified under the residual clause,
2
The only argument tethered to the ACCA was defense counsel’s contention that Taylor
v. United States, 495 U.S. 575 (1990), had been wrongly decided. Overruling the objection, the
sentencing court noted that the legal objection was preserved.
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this would only get [McKenzie] halfway.” Pickett, 916 F.3d at 965. McKenzie also
would “need[ ] to show that it is unlikely that the trial court thought the convictions
also qualified under the [enumerated offenses] clause.”3 Id. McKenzie cannot make
this showing either.
Arguing the unlikelihood, McKenzie challenges the Recommendation’s
finding that, at the time of his sentencing, “there would have been little dispute that
McKenzie’s Alabama second-degree arson conviction fell within the scope of the
ACCA’s enumerated-offenses clause” (Doc. # 26, at 18). (Doc. # 29, at 3.) The
Magistrate Judge reasoned that, even though the sentencing record does not establish
under which subsection of § 13A-7-42 McKenzie was convicted, both subsections
constitute generic arson and thus are violent felonies under the enumerated-offenses
clause.4 (Doc. # 26, at 17 (citing Taylor v. United States, 495 U.S. 575, 599 (1990),
for the principle that “a prior state conviction satisfies the ACCA’s enumeratedoffenses clause if its statutory definition substantially corresponds to the ‘generic’
meaning of the enumerated offense”).
3
Consistent with the parties’ positions, the Recommendation concluded that, at the time of
McKenzie’s sentencing hearing, only two of the three clauses defining “violent felony” under the
ACCA were potentially applicable to McKenzie’s arson conviction: (1) the enumerated-offenses
clause and (2) the residual clause. (See Doc. # 26, at 15 & n.11.)
4
Since the time of McKenzie’s offense and conviction, Alabama’s second-degree arson
statute has provided two alternative ways to commit arson in the second degree: (1) by
“intentionally damag[ing] a building by starting or maintaining a fire,” § 13A-7-42(a), or (2) by
“intentionally start[ing] . . . a fire . . . which damages property in a detention facility or a penal
facility . . . with reckless disregard . . . for the safety of others,” id. § 13A-7-42(d).
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McKenzie contends that his second-degree arson conviction was under
subsection (d) and that, contrary to the Magistrate Judge’s finding, subsection (d)
does not constitute generic arson. Therefore, according to McKenzie, his conviction
does not qualify as a violent felony under the enumerated-offenses clause. In an
attempt to establish that the sentencing court must have reached the same conclusion,
McKenzie hypothesizes that the court employed a multi-step approach in order to
eliminate the applicability of the enumerated-offenses clause to the arson conviction.
As McKenzie’s hypothesis goes, the sentencing court, although unguided by
precedent, decided that (1) Alabama’s second-degree arson statute is divisible,
(2) applied the modified categorical approach, (3) projected that the modified
categorical approach would permit consideration of the PSI’s undisputed facts,
(4) concluded that, on the basis of those facts, McKenzie’s conviction could have
only been under § 13A-7-42, (5) resolved that subsection (d) does not require an
intent to cause property damage, and (6) opined that, therefore, subsection (d) was
broader than generic arson as enumerated in the ACCA.
Under Beeman, McKenzie asks far too much. Perhaps the sentencing court
thought it through, step by step, exactly as McKenzie proposes, and reached the
result McKenzie advances. Perhaps it did not. There is no way to know. McKenzie
has not shown that it is more likely than not that the sentencing court followed this
path and therefore relied only on the residual clause. At best, there is a modicum of
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evidence — the PSI’s inclusion of facts of the underlying conduct — to show an
arguable basis that McKenzie’s arson conviction fell under subsection (d). But there
is no other evidence in the sentencing record — no oral or written rulings, no
concessions, no pertinent arguments, and no other facts in the PSI — that support all
the steps along the path of McKenzie’s hypothesis. Importantly also, McKenzie
points to no precedent at the time of sentencing that would have required the district
court to take the path that McKenzie urges.
McKenzie argues, though, that Brown v. Carraway, 719 F.3d 583, 590 (7th
Cir. 2013) — which held that a Delaware arson statute was not generic arson because
it permitted a mens rea of less than willfulness (i.e., recklessness) — supports his
theory that the sentencing court did not consider the enumerated-offenses clause
when it enhanced his sentence under the ACCA. According to McKenzie, Brown
proves that § 13A-7-42(d) is broader than generic arson because it requires only an
intent to start a fire, not an intent to cause property damage, and “includes a mens
rea of recklessness.” (Doc. # 29, at 3.) But Brown, which did not address a Johnson
claim, is a development in the case law of another circuit about another state’s arson
statute, occurring a decade after McKenzie’s sentencing hearing. Brown does not
resolve whether a different sentencing court ten years earlier actually relied on the
residual clause in sentencing a defendant under the ACCA based on an Alabama
arson statute. Accordingly, the Brown decision obviously cannot establish that the
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“law was clear at the time of sentencing that only the residual clause would authorize
a finding that the prior [arson conviction] was a violent felony.” 5 Beeman, 871 F.3d
at 1224 (emphasis added).
The bottom line is that McKenzie’s objection to the Recommendation’s
conclusion that subsection (d) of Alabama’s second-degree arson statute is generic
arson need not be resolved in order to find that McKenzie has not met his burden
under Beeman. The silent sentencing record and the absence of clear case law at the
time of McKenzie’s sentencing that § 13A-7-42(d) “qualified as a violent felony
only under the residual clause” invalidate McKenzie’s argument. Beeman, 871 F.3d
at 1224.
Moreover, arson’s express inclusion in the enumerated-offenses clause was
significant to one panel’s rejection of a Johnson movant’s claim under Beeman. To
borrow from the panel’s Ubele decision: “[P]erhaps most important, ‘arson’ is an
enumerated offense under the ACCA. Therefore, even if [McKenzie] was sentenced
in part under the ACCA’s residual clause, the silence of record leaves no basis to
conclude that the residual clause alone was used to qualify his [1991 Alabama arson
5
Additionally, to the extent that McKenzie’s objection contains an argument that the
district court committed error if it did find that McKenzie’s arson conviction was a violent felony
under the ACCA’s enumerated-offenses clause, that claim is an untimely Descamps claim, see
Descamps v. United States, 570 U.S. 254 (2013), not a Johnson claim. See Beeman, 871 F.3d
at 1220 (clarifying that a claim based on Descamps — namely that “the defendant was incorrectly
sentenced as an armed career criminal under the elements or enumerated offenses clause” — does
not trigger the one-year limitations provision of 28 U.S.C. § 2255(f)(3) (as a claim based on
Johnson does)).
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conviction] as a violent felony.” 742 F. App’x at 420. McKenzie cannot meet his
burden under Beeman.
Alternatively, with an implicit recognition that his Johnson claim falters under
Beeman, McKenzie argues that the panel decision in Beeman was wrongly decided.
But Beeman is binding on this court, and the district court does not provide a
platform for overturning the law of the circuit. See Cargill v. Turpin, 120 F.3d 1366,
1386 (11th Cir. 1997) (“The law of this circuit is ‘emphatic’ that only the Supreme
Court or this court sitting en banc can judicially overrule a prior panel decision.”).
In sum, the sentencing record is silent as to whether the district court relied
only on the residual clause in sentencing McKenzie under the ACCA.
And
McKenzie has pointed to no precedent at the time of his sentencing “holding, or
otherwise making obvious, that a violation of [Alabama’s second-degree arson
statute] qualified as a violent felony only under the residual clause.” Beeman, 871
F.3d at 1224. As in Beeman, McKenzie’s “general observations” are not sufficient
to carry his burden of showing that his sentence was enhanced “solely because of
the residual clause.” Id. Accordingly, McKenzie has not supported his Johnson
claim. 6
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McKenzie does not stand alone. Other Johnson movants in this circuit also have been
unable to withstand the weight of Beeman’s holding on silent sentencing records. See, e.g., Swatzie
v. United States, No. 18-13018, 2019 WL 141062, at *1 (11th Cir. Jan. 9, 2019) (“The district
court properly found that Swatzie failed to meet his burden under Beeman. The record of Swatzie’s
sentencing is silent as to the basis for the ACCA enhancement. And the relevant law as of the date
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B.
McKenzie has not shown that he is entitled to an evidentiary hearing.
Focusing on his third-degree burglary conviction, McKenzie argues that the
Eleventh Circuit’s decision in Beeman “requires an evidentiary hearing” to permit
him “the opportunity to prove his case.” (Doc. # 29, at 9–10.) He contends that the
Magistrate Judge erred in not holding one. But McKenzie has not alleged any
“reasonably specific, non-conclusory facts that, if true, would entitle him to relief”
on his Johnson claim. Aron v. United States, 291 F.3d 708, 715 n.6 (11th Cir. 2002)
(setting out what a § 2255 movant must show to receive an evidentiary hearing).
he was sentenced does not suggest he was, in fact, sentenced as an armed career criminal ‘solely
because of the residual clause.’”); Bivins v. United States, 747 F. App’x 765, 769 (11th Cir. 2018)
(holding that on the “completely silent” sentencing record “Bivins failed to carry his burden of
proof” under the circuit’s Beeman precedent), cert. denied, 139 S. Ct. 856 (2019); Harper v. United
States, 742 F. App’x 445 (11th Cir.), cert. denied, 139 S. Ct. 579 (2018) (holding that, on the silent
sentencing record, “Harper (like the movant in Beeman) cannot show that he more likely than not
was sentenced under the residual clause.”); Ubele v. United States, 742 F. App’x 417, 420 (11th
Cir. 2018) Upshaw v. United States, 739 F. App’x 538, 540 (11th Cir. 2018) (concluding that, on
the silent record, Beeman foreclosed the defendant’s Johnson claim), cert. denied, 139 S. Ct. 841
(2019); Harris v. United States, 737 F. App’x 974, 978 (11th Cir. 2018) (holding that, “as was the
case in Beeman, the record is similarly silent as to [whether the sentencing court deemed the
Georgia aggravated-assault conviction a qualifying ACCA predicate offense under the residual
clause or the elements clause]; neither the PSI nor the district court at sentencing explained or
indicated in any way whether the ACCA enhancement applied because Georgia aggravated assault
was a violent felony under the ACCA’s elements clause or residual clause”), cert. denied, ___
S. Ct. ___, No. 18-6936, 2019 WL 1428972 (2019); Edwards v. United States, 733 F. App’x 526,
527 (11th Cir. 2018) (“Under Beeman, Edwards cannot carry his burden of proving that he was
sentenced under the ACCA’s residual clause because nothing in the record shows that the
sentencing court relied on the residual clause in concluding that his Florida arson conviction
qualified as an ACCA predicate and Edwards has cited no precedent from the time of sentencing
showing that Florida arson qualified only under the residual clause.”), cert. denied, 139 S. Ct. 1216
(2019).
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McKenzie requested an evidentiary hearing if the court disagreed with his
motion in order “to suss out whether the district court in fact relied solely upon the
residual clause at the time of his sentencing hearing.” (Doc. # 25, at 31.) Now, in
his objection, he argues, without elaboration, that, unlike the movant in Beeman, he
does not concede that he cannot “make certain showings from the existing record.”
(Doc. # 29, at 10.) But McKenzie does not indicate what facts he would offer to
show that the district court relied only on the unconstitutional residual clause of the
ACCA or what factual showings he would make. The Magistrate Judge did not err
in not holding a hearing.
III. CONCLUSION
McKenzie’s § 2255 motion raising a Johnson claim must be denied because,
under Beeman, McKenzie has failed to carry his burden of proving that it was more
likely than not that he was sentenced as an armed career criminal under the ACCA’s
residual clause. The Magistrate Judge did not err in recommending the denial of
McKenzie’s § 2255 motion. Accordingly, it is ORDERED as follows:
(1)
McKenzie’s objections (Doc. # 29) are OVERRULED;
(2)
The Recommendation of the Magistrate Judge (Doc. # 26) is
ADOPTED in accordance with this Memorandum Opinion and Order;
(3)
McKenzie’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence (Doc. # 1) is DENIED; and
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(4)
This action is DISMISSED with prejudice.
Final judgment will be entered separately.
DONE this 8th day of May, 2019.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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