Bargeron v. United States of America

Filing 24

ORDER denying 11 Amended Motion to Vacate, Set Aside, or Correct Sentence. The Clerk of the Court is directed to enter judgment in accordance with this Order, terminate any pending motions, and close the file. If Petitioner appeals the denial of the petition, the Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 4/26/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

BURL BARGERON,
Petitioner,
vs.

Case No.:

3:15-cv-1455-J-34JBT
3:09-cr-156-J-34JBT

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
This case is before the Court on Petitioner Burl Bargeron’s Amended Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 11, Amended
Motion to Vacate) and Supporting Memorandum (Civ. Doc. 19, Supporting
Memorandum).1 Relying in part on Johnson v. United States, 135 S. Ct. 2551 (2015),
and Welch v. United States, 136 S. Ct. 1257 (2016), Bargeron argues that his sentence
was unconstitutionally enhanced under the “residual clause” of the Armed Career
Criminal Act (ACCA). The United States has responded (Civ. Doc. 7, Motion to Dismiss;
Civ. Doc. 20, Response), and Bargeron has replied (Civ. Doc. 23, Reply). For the reasons
set forth below, Bargeron’s Amended Motion to Vacate is due to be denied.

1
Citations to the record in the underlying criminal case, United States vs. Burl Bargeron,
Case No. 3:09-cr-156-J-34JBT, will be denoted as “Crim. Doc. __.” Citations to the record in the
civil § 2255 case, Case No. 3:15-cv-1455-J-34JBT, will be denoted as “Civ. Doc. __.”
1 

I.

The ACCA

Ordinarily, possession of a firearm by a convicted felon is punishable by a
maximum term of imprisonment of ten years. 18 U.S.C. §§ 922(g)(1), 924(a)(2). Under
the ACCA, however, a felon in possession of a firearm who has at least three prior
convictions “for a violent felony or a serious drug offense, or both, committed on occasions
different from one another,” is subject to a 15-year mandatory minimum term of
imprisonment. Id. at § 924(e)(1).
The ACCA defines the term “violent felony” as any crime punishable by a term of
imprisonment exceeding one year that:
(i)

has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

(ii)

is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.

Id. at § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is often referred to
as the “elements clause.” Subpart (ii) has two components: the first nine words constitute
the “enumerated offense clause,” and the last 15 words, which are emphasized above,
are referred to as the “residual clause.” See Mays v. United States, 817 F.3d 728, 73031 (11th Cir. 2016).
II.

Johnson and Welch

On June 26, 2015, the Supreme Court in Johnson held that the ACCA’s residual
clause is unconstitutionally vague because the residual clause “creates uncertainty about
how to evaluate the risks posed by a crime and how much risk it takes to qualify as a

2 

violent felony.” In re Moore, 830 F.3d 1268, 1270 (11th Cir. 2016) (citing Johnson, 135
S. Ct. at 2557-58, 2563). However, the Supreme Court’s holding did not call into question
the validity of the elements clause or the enumerated offense clause. Johnson, 135 S.
Ct. at 2563. On April 18, 2016, the Supreme Court held in Welch that Johnson announced
a new substantive rule that applies retroactively to cases on collateral review. Welch,
136 S. Ct. at 1264-65.
III.

Background

On June 11, 2009, a grand jury sitting in the Middle District of Florida indicted
Bargeron on two counts of possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). (Crim. Doc. 1, Indictment). Bargeron proceeded to a bench trial on
stipulated facts, at the conclusion of which the Court found him guilty of both charges.
(See Crim. Doc. 89, Bench Trial Transcript at 22-24).
The main issue in Bargeron’s criminal case was whether he qualified to be
sentenced under the ACCA, 18 U.S.C. § 924(e). The United States contended that
Bargeron qualified for the ACCA enhancement because he had three prior convictions
for a “serious drug offense.” (See Crim. Doc. 64, USA’s Sentencing Memorandum; Crim.
Doc. 68, USA’s Supplemental Sentencing Memorandum).

Those offenses were as

follows: (1) a federal conviction on May 1, 2003, for conspiracy to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841 and 846, in the United States
District Court for the Middle District of Florida, Case Number 3:02-cr-183-J-21TEM (“the
Conspiracy Offense”); (2) a state conviction on May 29, 2003, for trafficking
methamphetamine, in the Circuit Court for the Third Judicial Circuit in and for Hamilton
County, Florida (“the Hamilton County Offense”); and (3) a state conviction on May 29,
3 

2003, for trafficking methamphetamine, in the Circuit Court for the Third Judicial Circuit in
and for Columbia County, Florida (“the Columbia County Offense”).
The ACCA issue centered on whether the Conspiracy Offense was committed on
an occasion different from the Hamilton County and Columbia County Offenses. (See
Crim. Doc. 65 Bargeron’s Sentencing Memorandum; Crim. Doc. 69, Bargeron’s
Supplemental Sentencing Memorandum).2 The thrust of Bargeron’s argument was that
the Hamilton County and Columbia County Offenses were part-and-parcel of the
Conspiracy Offense, and as such, the Conspiracy Offense should not be counted
separately from the two substantive drug offenses. Bargeron’s Supplemental Sentencing
Memorandum at 3. The United States argued that the Conspiracy Offense was separate
from the Hamilton County and Columbia County Offenses because, although the
substantive offenses occurred within the conspiracy, the Conspiracy Offense
encompassed additional conduct that occurred at different times and places from the
Hamilton County and Columbia County Offenses. USA’s Sentencing Memorandum at 814.
After reviewing the parties’ sentencing memoranda, and following an extended
sentencing hearing that took place over the course of three days (see Civ. Doc. 7-1,
Sentencing Transcript Volume I [“Sent. Tr. Vol. I”]; Civ. Doc. 7-2, Sentencing Transcript
Volume II [“Sent. Tr. Vol. II”]; Civ. Doc. 7-3, Sentencing Transcript Volume III [Sent. Tr.
Vol. III”]), the Court agreed with the United States that the Conspiracy Offense was
separate from the Hamilton County and Columbia County Offenses, Sent. Tr. Vol. III at

2
Bargeron conceded that the Hamilton County Offense and the Columbia County Offense
were separate from each other. (Civ. Doc. 7-2, Sentencing Transcript Volume II at 4). Bargeron
also did not contest that each of the three previous drug convictions met the ACCA’s definition of
a “serious drug offense,” as set forth in 18 U.S.C. § 924(e)(2)(A).
4 

3-10. The Court explained that the crime of conspiracy “is a crime separate and apart
from … any substantive acts that may be committed as part of the conspiracy,” and that
the crime of conspiracy was completed once Bargeron joined it. Id. at 4. As such, the
Conspiracy Offense is “a separate and complete offense well before the May 16th [2002]
distribution and the May 30th [2002] distribution and possession that occurred in Hamilton
and Columbia Counties, respectively.” Id. at 4-5. The Court found support for that
conclusion in the following passage from United States v. Rice, 43 F.3d 601 (11th Cir.
1995):
An ongoing course of criminal conduct such as narcotics trafficking may
involve many such criminal episodes, each a discrete occurrence. The fact
that all are related, part of a series, or part of a continuous course of criminal
dealing, does not necessarily render them a ‘single’ criminal episode,
particularly where the episodes occur over time. To so hold would insulate
the very career criminals the statute is designed to reach-those continuously
engaged in criminal conduct.
Sent. Tr. Vol. III at 5 (quoting Rice, 43 F.3d at 608) (quoting United States v. Maxey, 989
F.2d 303, 307 (9th Cir. 1993)).
Additionally, the Court explained that the conduct underlying the Conspiracy
Offense included activity that was distinct in time, location, and character from the conduct
underlying the Hamilton County and Columbia County trafficking offenses. Whereas the
conduct underlying the Hamilton County and Columbia County Offenses took place on
May 16, 2002, and May 30, 2002, respectively, the conduct underlying the Conspiracy
Offense lasted from November 2001 through May 2002. Sent. Tr. Vol. III at 5-6. The
conduct underlying the two substantive trafficking offenses also occurred discretely in
Hamilton County and Columbia County, whereas the conduct underlying the conspiracy
spanned across Hamilton County, Columbia County, and Suwannee County, Florida

5 

(where law enforcement discovered a meth lab that was part of the conspiracy). Id. at 5,
7. And whereas the conduct underlying the Hamilton County and Columbia County
trafficking offenses involved the distribution of methamphetamine, the conduct underlying
the

conspiracy

involved

Bargeron

obtaining

materials

for

manufacturing

methamphetamine and “serving as a lookout for another individual cooking
methamphetamine[.]” Id. at 7. Thus, the Court was “firmly convinced that these three
offenses are separate offenses which must each count as a separate conviction for
purposes of the ACCA.” Id. at 8.
Accordingly, the Court determined that Bargeron had three separate convictions
for “serious drug offenses,” which qualified him for a sentence under the ACCA. The
United States and Bargeron each requested that the Court impose the mandatory
minimum prison sentence of 180 months (15 years). Id. at 11-12. The Court followed
that recommendation and sentenced Bargeron to concurrent terms of imprisonment of
180 months as to Counts One and Two, followed by a four-year term of supervised
release. Id. at 13.
Bargeron filed a timely appeal. (Crim. Doc. 78, Notice of Appeal). “On 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 neither expressly affirmed nor disturbed the Court’s “different
occasions” ruling. Instead, the Eleventh Circuit avoided the question and held that, “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,” because “Bargeron

6 

stipulated to a 1999 Florida conviction for burglary of a structure.” Id. at 894. The court
reasoned as follows:
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.[3] 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.[4] 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.”
Bargeron, 435 F. App’x at 894. The court added that “Bargeron’s burglary offense
occurred on a different occasion [from] his two trafficking offenses,” as it occurred at least
four years before the drug offenses. Id. Thus, the court concluded that Bargeron “had
three qualifying prior convictions even if his conspiracy conviction is disregarded, and was
subject to the ACCA 15–year statutory minimum sentence.” Id.
Bargeron petitioned the Supreme Court for a writ of certiorari, but the Supreme
Court denied the petition on December 5, 2011. Bargeron v. United States, 132 S. Ct.
829 (2011).
IV.

Bargeron’s Amended Motion to Vacate (Doc. 11)

In the Amended Motion to Vacate, Bargeron raises three claims. First, Bargeron
contends that, in light of Johnson, 135 S. Ct. 2551, his sentence was unlawfully enhanced
under the ACCA’s residual clause.

Amended Motion to Vacate at 4; Supporting

3
Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L.Ed.2d 607 (1990).
4

United States v. Matthews, 466 F.3d 1271 (11th Cir. 2006).
7 

Memorandum at 1-4. Bargeron points to the fact that on direct appeal, the Eleventh
Circuit affirmed the ACCA enhancement due to a prior burglary conviction, and in doing
so the Eleventh Circuit relied in part on the now-invalid residual clause. See Bargeron,
435 F. App’x at 894. Bargeron further argues that, in light of Taylor, 495 U.S. 575, and
Mathis v. United States, 136 S. Ct. 2243 (2016), Florida burglary cannot count as a
“violent felony” under the enumerated offense clause because Florida’s burglary statute
is indivisible and broader than generic burglary.5
Second, Bargeron contends that he is “actually innocent” of being an armed career
criminal because he does not have the three prior convictions necessary to qualify for the
ACCA enhancement. Amended Motion to Vacate at 5; Supporting Memorandum at 4-8.
Bargeron argues, once more, that the prior Conspiracy Offense was not separate from
the substantive drug trafficking offenses in Hamilton County and Columbia County,
Florida. Bargeron also appears to argue that (1) the Court was not allowed to rely on
Shepard-approved6 documents to determine whether the Conspiracy Offense was
separate, because the timing of an offense is not an element of the crime7; (2) even if the
Court could have relied on Shepard documents, the presentence investigation report from

5
After the parties filed their briefs, the Eleventh Circuit held that Florida burglary
categorically does not qualify as generic burglary under the ACCA’s enumerated offense clause.
United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016).
6

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

7

The defendant in United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013), also argued
that the district court could not rely on a Shepard document (in that case, a charging instrument)
to conduct the different-occasions inquiry “because the date of a crime is not an element of the
offense.” Id. at 1260. The Eleventh Circuit did not accept that argument, but instead affirmed the
defendant’s ACCA sentence. Id. at 1261-62. See also United States v. Robinson, 664 F. App’x
768, 769 (11th Cir. 2016) (rejecting defendant’s argument that “a sentencing court cannot make
a different-occasions finding based on non-elemental facts, even if those facts are derived
from Shepard documents.”) (citing Weeks, 711 F.3d at 1259).
8 

Bargeron’s 2003 federal Conspiracy Offense (“2003 PSR”) was not a Shepard document,
so the Court erred in relying on it to determine whether Bargeron’s Conspiracy Offense
was separate; and (3) in any event, Shepard-approved documents do not establish that
the Conspiracy Offense was separate because they do not establish that Bargeron joined
the conspiracy at any time before May 16, 2002, when he committed the first substantive
drug trafficking offense. See Supporting Memorandum at 4-7.
Third, Bargeron argues that he is “actually innocent” of the ACCA enhancement
because the two prior state convictions were not “serious drug offenses,” due to the lack
of a mens rea requirement. Amended Motion to Vacate at 6. However, Bargeron
ultimately withdrew this argument, so the Court will not consider it.

Supporting

Memorandum at 1.
The United States responds that Bargeron’s challenge to the ACCA sentence,
based on Johnson, is not timely under 28 U.S.C. § 2255(f)(3).

Response at 1

(incorporating argument made in Motion to Dismiss). In the Motion to Dismiss, the United
States argues that Johnson has no application to Bargeron because the Court imposed
the ACCA sentence on account of him having three separate convictions for serious drug
offenses, not on account of the residual clause. Motion to Dismiss at 3-5. The United
States also argues that the Court’s original ruling that the prior drug offenses were
separate from each other was correct. Motion to Dismiss at 5-6; Response at 1-4.
V.

Discussion

Pursuant to Title 28, United States Code, Section 2255, a person in federal custody
may move to vacate, set aside, or correct his sentence. Section 2255 permits such
collateral challenges on four specific grounds: (1) the imposed sentence was in violation
9 

of the Constitution or laws of the United States; (2) the court did not have jurisdiction to
impose the sentence; (3) the imposed sentence exceeded the maximum authorized by
law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C
§2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that
are so fundamentally defective as to cause a complete miscarriage of justice will warrant
relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979).
A challenge to the ACCA enhancement is cognizable on collateral review under §
2255 because if the prisoner was improperly sentenced under the ACCA’s 15-year
mandatory minimum, his sentence necessarily exceeded the 10-year statutory maximum
that should have applied. See Spencer v. United States, 773 F.3d 1132, 1143 (11th Cir.
2014) (en banc) (“We can collaterally review a misapplication of the Armed Career
Criminal Act because, unlike an advisory guideline error, that misapplication results in
a sentence that exceeds the statutory maximum.”).
To be entitled to § 2255 relief under Johnson, a prisoner must show that his ACCA
sentence was based on the now-voided residual clause. See In re Thomas, 823 F.3d
1345, 1349 (11th Cir. 2016) (“Thomas’s claim under Johnson fails to establish the
required prima facie showing because … the applicability of Thomas’s ACCA
enhancement does not turn on the validity of the residual clause.”); Ziglar v. United States,
201 F. Supp. 3d 1315, 1319 (M.D. Ala. 2016) (“Hence, a sentence not under the ACCA’s
residual clause, but under one of the other two definitions of violent felony under the
ACCA, does not fall within the scope of the substantive rule of Johnson.”). A prisoner’s
sentence does not depend on the residual clause if he has three or more prior convictions
for a “violent felony,” as defined by the still-valid elements clause or enumerated offense

10 

clause, or a “serious drug offense.” See, e.g., Thomas, 823 F.3d 1345 (prisoner failed to
make a prima facie showing that he was sentenced based on the residual clause where
he had three prior convictions that, at the sentencing hearing, were deemed ACCA
“violent felonies” under the elements clause or the enumerated offenses clause); In re
Hires, 825 F.3d 1297 (11th Cir. 2016) (same).
A. Ground One
In Ground One, Bargeron contends that his ACCA sentence is illegal in light of
Johnson, 135 S. Ct. 2551. Bargeron argues the ACCA enhancement was imposed, at
least in part, based on the finding that his Florida burglary conviction counted as a “violent
felony” under the now-invalid residual clause. The thrust of the United States’ response
is that Johnson does not apply to Bargeron because he qualifies for an ACCA sentence
due to having been convicted of three separate serious drug offenses.8
Bargeron is not entitled to relief on account of Johnson, because his ACCA
sentence does not depend on the residual clause. The Court reaffirms its prior ruling that
he had three previous convictions for a serious drug offense. For the reasons stated on
the record at the sentencing hearing, the Court concludes that Bargeron’s serious drug
offenses were each committed on separate occasions. See Sent. Tr. Vol. III at 3-10. The
Court further explains its decision below.
The ACCA requires the 15–year minimum sentence if the three predicate
convictions result from crimes “committed on occasions different from one another.” 18

8
Although the United States frames its response as arguing that Bargeron’s Johnson claim
is untimely, see Motion to Dismiss at 2-6; Response at 1, the gravamen of the United States’
argument is that Bargeron’s reliance on Johnson lacks merit. Accordingly, the Court finds it
simpler to assume, for the sake of argument, that Ground One of Bargeron’s Amended Motion to
Vacate is timely under 28 U.S.C. § 2255(f)(3), and to discuss the merits of the claim.
11 

U.S.C. § 924(e)(1). “Although the predicate offenses must be distinct, even a small
difference in time or place distinguishes convictions for purposes of the ACCA.” United
States v. Patterson, 423 F. App’x 921, 924 (11th Cir. 2011) (citing United States v.
Sneed, 600 F.3d 1326, 1330 (11th Cir. 2010)); United States v. Pope, 132 F.3d 684, 690
(11th Cir. 1998) (“Distinctions in time and place are usually sufficient to separate criminal
episodes from one another even when the gaps are small.”) (citations omitted).
[T]he “successful” completion of one crime plus a subsequent conscious
decision to commit another crime makes that second crime distinct from the
first for the purposes of the ACCA. Accordingly, we hold that so long as
predicate crimes are successive rather than simultaneous, they constitute
separate criminal episodes for purposes of the ACCA. A showing that the
crimes reflect distinct aggressions, especially if the defendant committed
the crimes in different places, is particularly probative of the sequential
nature of those crimes.
Pope, 132 F.3d at 692.
The fact that a substantive drug offense occurs within the course of a conspiracy
offense does not mean that the two offenses count as a single criminal incident. Cf.
United States v. Hansley, 54 F.3d 709, 716-17 (11th Cir. 1995) (for purposes of
sentencing enhancement under 21 U.S.C. § 841(b)(1)(A), defendant’s 1989 conviction
for drug possession was distinct from his conviction for a drug conspiracy that lasted from
1985 to 1991, even though the drug possession was in furtherance of the conspiracy).9
Indeed, Hansley’s holding is consistent with the principle that conspiracy is a distinct

9
Although Hansley considered whether a prior conviction was a separate offense for
purposes of the sentencing enhancement under 21 U.S.C. § 841(b)(1)(a), the court suggested in
Rice, 43 F.3d 601, that the analysis of whether prior convictions should be counted separately
under § 841(b)(1)(A) is similar to the “different occasions” analysis under 18 U.S.C. § 924(e).
Rice, 43 F.3d at 608 (quoting with approval Maxey, 989 F.2d at 305, a Ninth Circuit ACCA case).
12 

crime, with distinct elements, from a substantive drug offense. As the Supreme Court
has explained,
a substantive crime, and a conspiracy to commit that crime, are not the
“same offense” for double jeopardy purposes.... [W]e choose to adhere to
the Bayer-Pinkerton[10] line of cases dealing with the distinction
between conspiracy to commit an offense and the offense itself. These are
separate offenses for double jeopardy purposes.
United States v. Felix, 503 U.S. 378, 389-91 (1992). See also United States v. IbarguenMosquera, 634 F.3d 1370, 1382 (11th Cir. 2011) (“[I]t has long been held that when
the conspiracy and substantive charges derive from separate statutes, ‘the commission
of the substantive offense and a conspiracy to commit it are separate and
distinct offenses’ because the charge for conspiracy requires an element not required by
the substantive offense: proof of an agreement.”) (quoting Pinkerton, 328 U.S. at 643);
United States v. Eley, 968 F.2d 1143, 1145-47 (11th Cir. 1992) (defendant’s conviction
for conspiracy, under 21 U.S.C. § 846, and for a substantive drug offense in furtherance
of the conspiracy, under 21 U.S.C. § 841, did not violate the Double Jeopardy Clause
because the two offenses are distinct); United States v. Sarro, 742 F.2d 1286, 1293 (11th
Cir. 1984) (“A conspiracy and the related substantive offense which is the object of
the conspiracy are separate and distinct crimes…. Moreover, an illegal conspiracy is
complete regardless of whether the crime agreed upon is actually consummated.”)
(citations omitted).
In determining whether prior ACCA offenses occurred on different occasions, the
Court must consult Shepard-approved documents. Sneed, 600 F.3d at 1332-33 (holding

10
United States v. Bayer, 331 U.S. 532 (1947), and Pinkerton v. United States, 328 U.S.
640 (1946).
13 

that “sentencing courts may look to certain facts underlying [a] prior conviction” in making
the “different occasions inquiry,” but must limit themselves to Shepard-approved
sources).11 Shepard-approved sources include the indictment (or “charging instrument”),
as well as uncontested facts in a presentence report. United States v. Chitwood, 676
F.3d 971, 976 (11th Cir. 2012) (the “narrow universe” of Shepard documents includes the
charging instrument); United States v. McCloud, 818 F.3d 591, 596 (11th Cir. 2016) (“The
Shepard documents in this case include … undisputed statements in the PSI.”).
Here, the Shepard documents include the charging documents from Bargeron’s
prior convictions, USA’s Sentencing Exhibit 1 (federal conspiracy indictment); USA’s
Sentencing Exhibit 5 (information from Columbia County Offense); USA’s Sentencing
Exhibit 7 (information from Hamilton County Offense), as well as the 2003 PSR from
Bargeron’s federal Conspiracy Offense. Bargeron’s counsel in the instant criminal case
described the 2003 PSR as “the best evidence in terms of the assessment of the events,”
and did not dispute its factual accuracy. Sent. Tr. Vol. II at 23-24.12

11
Sneed has not been overruled or abrogated. Thus, contrary to Bargeron’s argument that
the Court may not rely on Shepard documents to make the different-occasions inquiry, Supporting
Memorandum at 6-7, the Court may do so. See Weeks, 711 F.3d at 1260-62 (approving use of
Shepard documents to make the different-occasions inquiry despite defendant’s argument to the
contrary); Robinson, 664 F. App’x at 769 (rejecting defendant’s argument that “a sentencing court
cannot make a different-occasions finding based on non-elemental facts, even if those facts are
derived from Shepard documents.”) (citing Weeks, 711 F.3d at 1259).
12

Thus, the Court rejects Bargeron’s argument that the Court erred in relying on the 2003
PSR. See Supporting Memorandum at 6. Statements in a presentence report that are undisputed
in the instant criminal case, such as those in the 2003 PSR, are an appropriate source of
information about a previous conviction. See McCloud, 818 F.3d at 596; see also 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.”) (citing United States v. Bennett, 472 F.3d 825,
832-34 (11th Cir. 2006)).
Bargeron cites United States v. Braun, 801 F.3d 1301, 1305-07 (11th Cir. 2015), for the
proposition that a district court cannot rely on the PSR from a previous, unrelated criminal case,
but Braun is distinguishable. Importantly, the defendant in Braun objected to the factual accuracy
14 

These documents establish that the methamphetamine Conspiracy Offense was
separate from the two substantive drug trafficking offenses. The information from the
Hamilton County Offense reflects that on May 16, 2002, Bargeron trafficked between 28
grams and 200 grams of methamphetamine in Hamilton County, Florida.

USA’s

Sentencing Exhibit 7. The information from the Columbia County Offense reflects that on
May 30, 2002, Bargeron trafficked between 28 grams and 200 grams of
methamphetamine in Columbia County, Florida. USA’s Sentencing Exhibit 5. Bargeron
does not contest that these two offenses occurred on different occasions; he only
contends that these offenses are not separate from the Conspiracy Offense.
The indictment from Bargeron’s federal Conspiracy Offense alleges that:
From in or about November 2001, through in or about May 2002, in
Columbia, Suwannee and Hamilton Counties, in the Middle District of
Florida, and elsewhere,
BURL BARGERON,
a/k/a Buckshot,
the defendant herein, did knowingly, willfully and intentionally combine,
conspire, confederate and agree with other persons to distribute a mixture
containing methamphetamine, a Schedule II controlled substance, the
amount of methamphetamine being 500 grams or more[.]
USA’s Sentencing Exhibit 1. The 2003 PSR’s description of the Conspiracy Offense
conduct comports with the conspiracy indictment, in that it states that “between November
2001 and May 30, 2002, the coconspirators [which includes Bargeron] were accountable
for the manufacturing of between 500 grams and 1.5 kilograms of methamphetamine.”
2003 PSR at ¶ 19; see also id. at ¶¶ 1-2. Moreover, throughout the sentencing hearing,

of the prior PSR in the later criminal case. Id. at 1302, 1306. Here, unlike in Braun, Bargeron did
not contest the factual accuracy of the 2003 PSR, even in the instant criminal case. Instead,
Bargeron called the 2003 PSR “the best evidence in terms of the assessment of the events.”
Sent. Tr. Vol. II at 23-24.
15 

the Court and the United States expressed the understanding that Bargeron participated
in the conspiracy from November 2001 through May 2002, and Bargeron never
contradicted that understanding of the facts.13 See Sent. Tr. Vol. I at 18-19, 23; Sent. Tr.
Vol. II at 8, 10, 18-20; Sent. Tr. Vol. III at 5, 7.14 The federal conspiracy indictment and
the 2003 PSR, as well as the undisputed facts discussed at the sentencing hearing, reflect
that Bargeron joined the conspiracy sometime in November 2001 and continued
participating in it through May 2002. Thus, the conduct underlying Bargeron’s Conspiracy
Offense conviction was temporally distinct from the substantive Hamilton County and
Columbia County drug offenses. The conspiracy covered a seven-month stretch of time,
lasting from November 2001 to May 30, 2002, whereas the substantive offenses occurred
discretely on May 16, 2002, and May 30, 2002.
The conduct underlying the Conspiracy Offense was also geographically distinct,
in that it occurred in different locations from the substantive trafficking offenses. As
reflected in the federal conspiracy indictment, the 2003 PSR, and the discussion at the
sentencing hearing, the conduct underlying the conspiracy took place across Hamilton
County, Columbia County, and Suwannee County, Florida. USA’s Sentencing Exhibit 1;
2003 PSR at ¶¶ 5-19; Sent. Tr. Vol. III at 5-7. By contrast, the May 16, 2002 trafficking
offense occurred in Hamilton County, and the May 30, 2002 trafficking offense occurred

13
Of course, Bargeron disputed whether, as a matter of law, the Conspiracy Offense was
committed on a different occasion, but he never disputed the factual understanding that Bargeron
participated in the conspiracy between November 2001 and May 30, 2002.
14

Even on direct appeal, Bargeron did not contest the factual assertion that he participated
in the conspiracy from November 2001 to May 2002. See Brief for Appellant at 20-21, Bargeron,
435 F. App’x 892 (Appeal No. 10-15906). Instead, he argued that the Court’s “different occasions”
conclusion was erroneous because “the existence of other conduct does not negate the
relatedness of the conduct involved in the two state convictions.” Id. at 21.
16 

in Columbia County. As such, the Conspiracy Offense is not only distinct in time, it is also
distinct in location. Because “[d]istinctions in time and place are usually sufficient to
separate criminal episodes from one another,” Pope, 132 F.3d at 690, the Court remains
“firmly convinced that these three offenses are separate offenses which must each count
as a separate conviction for purposes of the ACCA,” Sent. Tr. Vol. III at 8.
Moreover, the conduct underlying the Conspiracy Offense was of a different
character from the conduct underlying the substantive trafficking offenses. Whereas the
Hamilton County and Columbia County trafficking offenses involved the distribution of
methamphetamine, Bargeron’s participation in the Conspiracy Offense involved the
manufacture of methamphetamine. See Sent. Tr. Vol. III at 7; 2003 PSR at ¶¶ 5-19.
Taken together, the fact that Bargeron’s conduct in the Conspiracy Offense was
distinct in time, place, and character from the Hamilton County and Columbia County
Offenses illustrates that each offense occurred on “occasions different from one another.”
18 U.S.C. § 924(e)(1). Bargeron joined the methamphetamine conspiracy in November
2001, and upon doing so completed the crime of conspiracy. See United States v.
Shabani, 513 U.S. 10, 15-16 (1994) (a conviction for conspiracy under 21 U.S.C. § 846
does not require proof of an overt act; the essence of the crime of conspiracy is the
agreement to commit a crime); United States v. Mercer, 165 F.3d 1331, 1333 (11th Cir.
1999) (a defendant commits conspiracy under 21 U.S.C. § 846 when he makes an
agreement with one or more other persons to do an unlawful act). After Bargeron joined
the conspiracy, he trafficked in methamphetamine on May 16, 2002, and he did so again
on May 30, 2002. Bargeron thus made “a subsequent conscious decision to commit
another crime” each time he trafficked in methamphetamine, making the subsequent

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trafficking offenses “distinct from the [Conspiracy Offense] for purposes of the ACCA.”
Pope, 132 F.3d at 692. At any point in time between November 2001, May 16, 2002, and
May 30, 2002, Bargeron could have desisted from criminal conduct, but he chose not to
do so.
As such, each of Bargeron’s serious drug offenses were committed “on occasions
different from one another” for purposes of the ACCA. Because Bargeron has three
serious drug offenses, he qualifies for a sentence under the ACCA, irrespective of the
residual clause and the Supreme Court’s decision in Johnson, 135 S. Ct. 2551.
Therefore, relief on Ground One is due to be denied.
B. Ground Two
In Ground Two, Bargeron contends that he is “actually innocent” of being an armed
career criminal. Amended Motion to Vacate at 5. Putting aside any question about
whether Bargeron’s legal challenge to the ACCA enhancement qualifies as an “actual
innocence” claim, Bargeron is not entitled to relief.15 For the reasons set forth under
Ground One, Bargeron is not “actually innocent” of being an armed career criminal.
Bargeron has three previous convictions for a serious drug offense, each committed on
occasions different from one another. See 18 U.S.C. § 924(e)(1). Therefore, relief on
Ground Two is due to be denied.

15
The Eleventh Circuit has held that the “actual innocence” exception does not apply to a
defendant’s claim that he was wrongly sentenced as a Guidelines career offender because his
conviction was not a “crime of violence” under the Guidelines. McKay v. United States, 657 F.3d
1190, 1191-92, 1198 (11th Cir. 2011). The court reasoned that the actual innocence exception
could not save the claim because it was “one of legal, rather than factual, innocence and thus
fails to fall within the actual innocence exception's purview.” Id. at 1198. McKay suggests that
the “actual innocence” exception also would not apply to a defendant’s claim that he is legally
innocent of the ACCA enhancement. Hill v. United States, 569 F. App’x 646, 648 (11th Cir. 2014)
(rejecting prisoner’s claim that he was actually innocent of the ACCA sentence).
18 

VI.

Certificate of Appealability

If Bargeron seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. 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.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that "jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a certificate of appealability.
Accordingly, it is hereby
ORDERED:
1. Petitioner Burl Bargeron’s Amended Motion to Vacate, Set Aside, or Correct
Sentence (Civ. Doc. 11) is DENIED.

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2. The Clerk shall enter judgment in favor of the United States and against Bargeron,
terminate any pending motions, and close the file.
3. If Bargeron appeals the denial of the petition, 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 26th day of April, 2017.

Lc 19
Copies:
Counsel of record
Petitioner Burl Bargeron

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