Leone v. United States of America
OMNIBUS ORDER DENYING 27 Motion to Reconsider; GRANTING 27 Request for a Final Order of Dismissal; ADOPTING AND SUPPLEMENTING the Court's Prior 25 Non-Final Order; DISMISSING Pursuant to 28 U.S.C. sec. 2255(h) or, Alternatively, DENYING Pu rsuant to 28 U.S.C. sec. 2255(a) 5 Motion to Vacate and 27 Amended Motion to Vacate; DENYING a Certificate of Appealability; and CLOSING CASE. Signed by Judge Joan A. Lenard on 2/2/2017. (gie) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-22200-CIV-LENARD/WHITE
(Criminal Case No. 95-00960-Cr-Lenard)
UNITED STATES OF AMERICA,
OMNIBUS ORDER DENYING MOVANT’S MOTION TO RECONSIDER (D.E.
27); GRANTING MOVANT’S REQUEST FOR A FINAL ORDER OF
DISMISSAL (D.E. 27); ADOPTING AND SUPPLEMENTING THE COURT’S
PRIOR NON-FINAL ORDER (D.E. 25); DISMISSING PURSUANT TO 28 U.S.C.
§ 2255(h) OR, ALTERNATIVELY, DENYING PURSUANT TO 28 U.S.C. § 2255(a)
MOVANT’S MOTION TO VACATE (D.E. 5) AND AMENDED MOTION TO
VACATE (D.E. 27)1; DENYING A CERTIFICATE OF APPEALABILITY, AND
THIS CAUSE is before the Court on Movant Salvatore Leone’s Motion to
Reconsider, or, in the Alternative, Request for Final Order of Dismissal and Certificate of
Appealability, (“Motion,” D.E. 27), which the Court construes, in part, as an Amended
Motion to Vacate pursuant to 28 U.S.C. § 2255.2 The United States filed a Response on
September 7, 2016, (“Response,” D.E. 28), to which Movant did not Reply. Upon review
of the Motion, Response, and the record, the Court finds as follows.
Movant’s Motion to Reconsider (D.E. 27) contains a new argument not
previously addressed by the Court. The Court construes the new argument as an Amended
Motion to Vacate pursuant to 28 U.S.C. § 2255.
See supra Note 1.
In November of 1996, Movant was adjudicated guilty of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Leone,
95-00960-Cr-Lenard (S.D. Fla. Nov. 6, 1996). The United States Probation Office issued
a Presentence Investigation Report (“PSI”) listing twenty-two prior convictions3 and
recommending that Movant receive a sentence enhancement pursuant to the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Based on information contained in
the PSI, the Government filed a Motion for Upward Departure. 95-00960-Cr-Lenard,
D.E. 93 (S.D. Fla. Aug. 30, 1996). Movant filed “objections” to the PSI in which he
conceded that his prior burglary convictions “are considered ‘violent felonies’ under the
At the time of sentencing, Movant had the following prior convictions (date
represents date of conviction):
1. Attempted Criminal Sale of a Controlled Substance, Fifth Degree (N.Y.) (3/4/1983);
2. Burglary of Structure (9/11/1989);
3. Grand Theft – Third Degree (9/11/1989);
4. Sale, Purchase or Delivery of Controlled Substance: Cocaine (9/11/1989);
5. Burglary of an Unoccupied Structure (9/11/1989);
6. Burglary of a Structure (9/11/1989);
7. Grand Theft – Third Degree (9/11/1989);
8. Burglary of a Structure (9/11/1989);
9. Petit Theft (9/11/1989);
10. Burglary of a Structure (9/11/1989);
11. Obstructing Justice (9/11/1989);
12. Burglary of an Unoccupied Dwelling (9/11/1989);
13. Burglary of an Unoccupied Structure (3/17/1992);
14. Possession of Burglary Tools (3/17/1992);
15. Burglary of an Unoccupied Structure (3/17/1992);
16. Possession of Burglary Tools (3/17/1992);
17. Grand Theft – Third Degree (3/17/1992);
18. Grand Theft Motor Vehicle (3/17/1992);
19. Burglary of an Unoccupied Structure (3/17/1992);
20. Burglary of an Unoccupied Structure (3/17/1992);
21. Criminal Mischief Over $1,000 (3/17/1992); and
22. Disorderly Intoxication (Fine 3/2/1995).
[ACCA],” but argued that a sentence at the low end of the guidelines range was
appropriate. 95-00960-Cr-Lenard, D.E. 96 (Sept. 20, 1996). Leone objected solely to
any upward departure of the guidelines range.4 See Tr. of Nov. 1, 1996 Sentencing Hr’g
at 3:16-20, 95-00960-Cr-Lenard, D.E. 111 (Mar. 7, 1997). At the November 1, 1996
sentencing hearing, the Court sustained Movant’s objection, denied the Motion for
upward departure, adopted the factual findings and guideline applications contained in
the PSI, and sentenced Movant within the guidelines.5 See id. at 26:4-13, 29:7-9; see also
95-00960-Cr-Lenard, D.E. 106 (Nov. 15, 1996).
In Johnson v. United States, the United States Supreme Court held that the
ACCA’s residual clause is unconstitutionally vague. 135 S. Ct. 2551, 2563 (2015). In
Welch v. United States, the Supreme Court held that Johnson announced a new
substantive rule of constitutional law that applies retroactively to cases on collateral
review. 136 S. Ct. 1257, 1268 (2016).
After the Supreme Court issued its decision in Welch, 136 S. Ct. at 1257, Movant
filed an application under 28 U.S.C. § 2255(h) seeking permission from the Court of
The PSI contained a section entitled “Factors that May Warrant a Departure,” and
the Government filed a Motion for an Upward Departure, 95-00960-Cr-Lenard, D.E. 93, arguing
that, based on the facts and circumstances of the offense conduct, as well as Leone’s criminal
history, the Court should depart from the guideline range of 262-327 months’ imprisonment to
292-365 months’ imprisonment. 95-00960-Cr-Lenard, D.E. 93 (Aug. 30, 1996). In his
Objections, Leone argued against any upward departure of the guidelines range. 95-00960-CrLenard, D.E. 96 (Sept. 20, 1996).
Based on a Total Offense Level of 34 and a criminal history category of VI,
Movant’s guideline imprisonment range was 262 to 327 months’ imprisonment. (PSR ¶ 69.)
The Court imposed a sentence of 327 months’ imprisonment, to be followed by five years of
supervised release. Tr. of Nov. 1, 1996 Sentencing Hr’g at 29:7-9.
Appeals to file a second or successive 2255 motion.6 On June 15, 2016, the Eleventh
Circuit Court of Appeals granted Movant’s application to file a second or successive
2255 motion, finding that because the district court made no explicit findings at the time
of sentencing, Leone had “made a prima facie showing that he has raised a claim that
meets the statutory criteria set forth in 28 U.S.C. § 2255[.]” (D.E. 1 at 9.)
On June 24, 2016, Movant, who is now represented by counsel, filed his second or
successive 2255 Motion in this Court. (See D.E. 5.) Therein, Movant argued that the
Court enhanced his sentence under the ACCA’s now-void residual clause, and that his
prior burglary convictions do not qualify as “violent felonies” under the ACCA’s
“enumerated” or “elements” clauses. (See id.) Movant based his argument on the legal
assumption that Descamps v. United States, 133 S. Ct. 2275 (2013) and Mathis v. United
States, 136 S. Ct. 2243, 2257 (2016), apply retroactively when determining whether his
prior convictions qualify as predicate offenses under the ACCA’s elements and
enumerated clauses. (See id. at 5-17.)
On August 31, 2016, the Court entered a Sua Sponte Non-Final Order Dismissing
Without Prejudice Movant’s Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255.7
Movant filed his first 2255 Motion on October 11, 2000, see Case No. 00-03831Civ-Lenard, D.E. 1, and an Amended 2255 Motion on December 18, 2000, Case No. 00-03831Civ-Lenard, D.E. 9. The first 2255 Motion (as amended) challenged the Court’s subject matter
jurisdiction over the criminal case and alleged ineffective assistance of counsel. See id. The
Court denied the first 2255 Motion (as amended) on August 1, 2002. Case No. 00-03831-CivLenard, D.E. 16.
See Leone v. United States, __ F. Supp. 3d __, 2016 WL 4479390 (S.D. Fla. Aug.
(“Non-Final Order,” D.E. 25.) The Court concluded that Descamps and Mathis did not
apply retroactively to second or successive 2255 motions. (Id. at 21.)
Other than the new rule made retroactive by the Supreme Court (i.e.,
Johnson), the Court must apply the law as it existed at the time of
sentencing to determine whether the Movant’s sentence was enhanced
under the ACCA’s residual clause. See Ziglar v. United States, __ F. Supp.
3d __, 2016 WL 4257773, at *7 (M.D. Ala. 2016) . . . . Here, the only
argument Movant advances is that he was sentenced under the residual
clause if Descamps applies retroactively. Because it does not, Movant has
failed to demonstrate that he was “sentenced under the residual clause.”
Accordingly, his Section 2255(h) application to file a second or successive
motion must be dismissed for lack of jurisdiction.
(Id. at 22-23.) The Court provided Movant fourteen days to file an Amended 2255
Motion that stated a pure Johnson claim—that is, one that does not rely on the
retroactivity of Descamps or Mathis—or to request the entry of a final order of dismissal.
(Id. at 24.)
On August 31, 2016, Movant filed the instant Motion for Reconsideration or,
alternatively, for a final order of dismissal and a certificate of appealability. (D.E. 27.)
Although Movant does not specify the legal framework under which he seeks
reconsideration, Federal Rule of Civil Procedure 60(b) provides that “[o]n motion and
just terms, the court may relieve a party or its legal representative from a final judgment,
order, or proceeding for” certain specified reasons. Fed. R. Civ. P. 60(b). Although
Rules 60(b)(1) through (5) are inapplicable here, Rule 60(b)(6) is a catch-all provision
that permits a court to reconsider an order for “any other reason that justifies relief.” Fed.
R. Civ. P. 60(b)(6).
“Federal courts grant relief under Rule 60(b)(6) only for extraordinary
circumstances.” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir.
2000) (citing High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990)); see also Booker v.
Singletary, 90 F.3d 440, 442 (11th Cir. 1996) (“The vacation of a judgment under Rule
60(b)(6) is an extraordinary remedy.”). “To warrant relief under Rule 60(b)(6), not only
must Plaintiffs show sufficiently extraordinary circumstances, but also that absent such
relief, an extreme and unexpected hardship will result.” Doe v. Drummond Co., 782 F.3d
576, 612 (11th Cir. 2015) (citation and internal quotation marks omitted). Additionally:
The “purpose of a motion for reconsideration is to correct manifest errors of
law or fact or to present newly discovered evidence.” Z.K. Marine Inc. v.
M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). In particular,
there are three major grounds which justify reconsideration: (1) an
intervening change in controlling law; (2) the availability of new evidence;
and (3) the need to correct clear error or prevent manifest injustice. See
Offices Togolais Des Phosphates v. Mulberry Phosphates, Inc., 62 F. Supp.
2d 1316, 1331 (M.D. Fla. 1999); See also Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). In order to
reconsider a judgment there must be a reason why the court should
reconsider its prior decision, and the moving party must set forth facts or
law of a strongly convincing nature to induce the court to reverse its prior
decision. Sussman, 153 F.R.D. at 694. A “motion for reconsideration
should not be used as a vehicle to present authorities available at the time of
the first decision or to reiterate arguments previously made.” Z.K. Marine
Inc., 808 F. Supp. at 1563. Instead, a motion for reconsideration is
appropriate where the “Court has patently misunderstood a party, or has
made a decision outside of the adversarial issues presented to the Court by
the parties, or has made an error not of reasoning, but of apprehension . . . .
Such problems rarely arise and the motion to reconsider should be equally
rare.” Z.K. Marine Inc., 808 F. Supp. at 1563 (citing Above the Belt, Inc.
v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983); Moog,
Inc. v. United States, No. 90–215E, 1991 WL 255371, at *1, 1991 U.S.
Dist. Lexis 17348, at *2 (W.D.N.Y. Nov. 21, 1991)).
Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla.
Movant argues that the Court should reconsider its Non-Final Order dismissing his
Motion for lack of jurisdiction for two reasons. First, Movant argues that by requiring
him to demonstrate that he was sentenced under the ACCA’s residual clause in order to
satisfy 28 U.S.C. § 2255(h), the Court held Movant to a higher standard than the one
elucidated by the Eleventh Circuit in In re Adams, 825 F.3d 1283 (11th Cir. 2016) and In
re Rogers, 825 F.3d 1335 (11th Cir. 2016), i.e., the “clear or unclear” test. (Mot. at 1-2.)
Second, he argues that the record establishes that he was sentenced under the ACCA’s
residual clause, citing to a statement the Assistant U.S. Attorney made at his sentencing
hearing. (Id. at 2-3.) The Court rejects these arguments.
The Court applied the correct legal standard.
First, Movant argues that by requiring him to establish that he was sentenced
under the ACCA’s residual clause, the Court applied an incorrect standard in its NonFinal Order. (Mot. at 1.) He argues instead that the Court is bound by the “clear or
unclear” test elucidated by the Eleventh Circuit in In re Rogers, which “turns on the
sentencing court’s findings and on-point binding precedent regarding whether a particular
crime categorically qualifies under a still-valid ACCA clause offense (precedent that
includes Descamps).” 825 F.3d at 1339-40. Under that test:
When neither the sentencing court’s finding on which ACCA clause or
clauses applied nor binding on-point precedent forecloses an applicant’s
assertion that his sentence arose under the ACCA’s residual clause, we look
to Descamps “to ensure we apply the correct meaning of the ACCA’s
words.” Adams, 825 F.3d at 1286. And at this point, unless postDescamps binding precedent clearly resolves the residual clause ambiguity
the applicant has demonstrated, his application “contain[s]” a Johnson
claim such that his application is due to be granted. See 28 U.S.C. §
Id. at 1340.
Applying this test, Movant argues that: (1) it is unclear whether the
sentencing court relied on the residual clause when applying the ACCA enhancement
and, therefore, the Court can look to Descamps; (2) under Descamps, the Court must look
only to the “‘the statutory definitions’—i.e., the elements—of a defendant’s prior
offenses, and not’ to the particular facts underlying those convictions[,]’” 133 S. Ct. at
2283 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); (3) Florida’s burglary
statute is non-generic and therefore a conviction under that statute cannot be an ACCA
predicate offense under the enumerated clause; (4) Florida burglary is not an ACCA
predicate offense under the elements clause; and therefore (5) applying Descamps
retroactively establishes that his sentence was enhanced under the now-void residual
clause. (See D.E. 5 at 5-17.)
However, as explained in Ziglar, __ F. Supp. 3d at __, 2016 WL 4257773, at *12,
the position advocated by Movant appears “hopelessly irreconcilable” with the holdings
of the Eleventh Circuit in In re Thomas, 823 F.3d 1345 (11th Cir. 2016), In re Griffin,
823 F.3d 1350 (11th Cir. 2016), and In re Hires, 825 F.3d 1297 (11th Cir. 2016). In those
cases, the Eleventh Circuit denied applications for leave to file a second or successive
2255 motion on the grounds that Descamps does not apply retroactively “for purposes of
a second or successive § 2255 motion.” In re Hires, 825 F.3d at 1303. This is because
“Descamps is a rule of statutory interpretation, not constitutional law.” In re Griffin, 823
F.3d at 1356 (citing Ezell v. United States, 778 F.3d 762, 763 (9th Cir. 2015) (“[T]he the
Supreme Court did not announce a new rule of constitutional law in Descamps. Rather, it
clarified—as a matter of statutory interpretation—application of the ACCA in light of
existing precedent.”), cert. denied, __ U.S. __, 136 S. Ct. 256, 193 L. Ed. 2d 212 (2015);
In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (“Nothing in Descamps indicates that its
holding announced a new rule that was constitutionally based, and Descamps did not
announce that its holding applied retroactively to cases on collateral review.”); see also
Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016) (“As the Supreme Court and
other circuits have recognized, Descamps did not announce a new rule—its holding
merely clarified existing precedent.”) (citations omitted). As such, the applicants in
Thomas, Griffin, and Hires failed to make a prima facie showing that their second or
successive 2255 motions contained “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255(h)(2) (emphasis added).
This Court is bound by the holdings in Thomas, Griffin, and Hires.8 Because
Descamps is “not retroactive for purposes of a second or successive § 2255 motion[,]” In
This conclusion is confirmed by the “the firmly established rule of this Circuit
that each succeeding panel is bound by the holding of the first panel to address an issue of law,
unless and until that holding is overruled en banc, or by the Supreme Court.” United States v.
Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (en banc); see also United States v. Golden, __
F.3d __, 2017 WL 343523, at *1 (11th Cir. Jan. 24, 2017). “[P]ublished three-judge orders
issued under § 2244(b) are binding precedent in our circuit.” In re Lambrix, 776 F.3d 789, 794
(11th Cir. 2015). The Eleventh Circuit held that Descamps is not retroactive for purposes of a
second or successive 2255 Motion on May 25, 2016. In re Thomas, 823 F.3d at 1349; In re
re Hires, 825 F.3d at 1303; In re Griffin, 823 F.3d at 1356; In re Thomas, 823 F.3d at
1349; In re Jackson, 776 F.3d at 296; Ezell, 778 F.3d at 763; the Court agrees with Ziglar
that the “clear or unclear” test enunciated in Rogers is “dicta or, at the very least, consists
of pronouncements that are only applicable to the circuit’s prima facie showing analysis
and not to the district court’s de novo review.” __ F. Supp. 3d at __, 2016 WL 4257773,
at *12. Accordingly, the Court finds that Movant is not entitled to reconsideration of the
Court’s Non-Final Order on the grounds that the Court applied an incorrect standard.
By requiring Movant to show that he was sentenced under the residual clause, the
Court applied the correct standard. As the Eleventh Circuit stated in In re Hires, “what
matters here is whether, at sentencing, [Movant’s] prior convictions qualified pursuant to
the residual clause, which would render his sentence subject to successive § 2255
challenge under Johnson, or pursuant to the elements clause, which would not.” 825 F.3d
At least five of Movant’s burglary convictions qualified as ACCA predicates
under the “enumerated” clause at the time of sentencing. In Taylor v. United States, the
Supreme Court held “an offense constitutes ‘burglary’ for purposes of a § 924(e)
sentence enhancement if either its statutory definition substantially corresponds to
‘generic’ burglary, or the charging paper and jury instructions actually required the jury
to find all the elements of generic burglary in order to convict the defendant.” 495 U.S.
575, 602 (1990). The Court defined “generic burglary” as “having the basic elements of
Griffin, 823 F.3d at 1356. The Eleventh Circuit did not elucidate the “clear or unclear” test until
June 17, 2016. In re Rogers, 825 F.3d at 1340.
unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” Id. at 599. At the time Movant was convicted of burglary, Florida law
defined the offense as “entering or remaining in a structure or a conveyance with the
intent to commit an offense therein, unless the premises are at the time open to the public
or the defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02 (1989).
Florida law further defined “structure” as “a building of any kind, either temporary or
permanent, which has a roof over it, together with the curtilage thereof.” Fla. Stat. §
Because Florida burglary could be committed by entering the
curtilage of a building or structure, it did not qualify as generic burglary. James v. United
States, 550 U.S. 192, 212 (2007). However, that does not resolve whether the Court
could have utilized the modified categorical approach to determine that Movant’s
burglary convictions qualified as a generic offense under the ACCA’s enumerated clause.
At the time of Movant’s sentencing in November 1996, the law in the Eleventh
Circuit permitted the sentencing court to consider the information in the presentence
investigation report to determine whether a defendant’s prior burglary convictions under
a non-generic burglary statute constituted “generic” burglary for purposes of applying the
ACCA enhancement under the enumerated clause. See United States v. Adams, 91 F.3d
114, 116 (11th Cir. 1996). In Adams, the Eleventh Circuit adopted the position of the
First, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal and held
that, post-Taylor, “the government may use some means, other than a jury instruction, to
establish that the prior conviction resulted from a generic burglary.” Id. The Eleventh
Circuit further held that information contained in the defendant’s PSI regarding the his
prior burglary convictions established that they were, in fact, generic burglaries under
Taylor “and therefore those burglaries were properly counted for purposes of the § 924(e)
Here, too, Movant’s PSI unequivocally establishes that at least three of his prior
convictions for burglary under Florida law constitute “generic” burglary for purposes of
the ACCA’s enumerated clause. “Although the exact formulations vary, the generic,
contemporary meaning of burglary contains at least the following elements: an unlawful
or unprivileged entry into, or remaining in, a building or other structure, with intent to
commit a crime.” Taylor, 495 U.S. at 598 (citations omitted). As described in the PSI,
Movant’s prior convictions for Florida burglary include (but are not limited to):
a. [First ACCA predicate: April 19, 1989—Burglary of a Dwelling]
According to the arrest affidavit, the defendant . . . was observed via a
surveillance camera exiting an apartment located at 9678 Fontainbleau
Blvd. Apartment #408. The defendant took a television and a V.C.R.
and fled the scene with [a co-defendant]. . . .
On May 22, an information was filed . . . charging the defendant with
(Count One) Burglary of Structure and (Count Two) Grand Theft-Third
Degree. On September 11, 1989, the defendant entered a plea of nolo
In several subsequent opinions, the Eleventh Circuit has reaffirmed that a district
court may consult a defendant’s presentence investigation report to determine whether prior
burglary convictions constitute “generic” burglary under Taylor. See United States v. Braun,
801 F.3d 1301, 1306 (11th Cir. 2015) (“This court has substantial precedent on the use of a
Presentence Report in determining whether a prior conviction constitutes a violent felony under
the ACCA.”); United States v. Jones, 608 F. App’x 822, 829 (11th Cir. 2015) (“We have never
held that it is error to rely on undisputed PSR facts in making the ACCA determination, and
therefore, the district court did not commit plain error by doing so.”); United States v. Bennett,
472 F.3d 825, 834 (11th Cir. 2006) (“[T]he district court did not err in relying on the undisputed
facts in Bennett’s PSI to determine that his prior convictions were violent felonies under the
ACCA and, therefore, that he was an armed career criminal.”); United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005) (finding no error where a defendant’s sentence was enhanced
based on facts in the PSR to which the defendant did not object at sentencing).
contendere. He was adjudicated guilty as to each Counts One and Two.
(PSI ¶ 30.)
b. [Second, third, and fourth ACCA predicates: June 23, 1989—Burglary
of Structure offenses]
On July 23, 1989, the defendant, using the name John Christopher
Meinke, was found hiding in the northeast room at For Kids Sake
located at 1933 NE 163rd Street. The burglar alarm to the business had
Investigation revealed that the defendant had
burglarized the business at the upper part of the east wall in order to
gain entry into 1925 NE 163rd Street (Sangs Chinese Food) and broke a
hole in the upper part of the east wall to gain entry into 1931 NW [sic]
163rd Street (Edgepark Surgical, Inc.) and then broke in to the above
business. In all three businesses, the defendant placed money and
property into bags. . . .
On July 14, 1989, . . . an information was filed charging the defendant
with (Count One) Burglary of Structure (Count Two), Grand TheftThird Degree (Count Three) Burglary of Structure, (Count Four) Petit
Theft (Count Five) Burglary of Structure, and (Count Six) Obstructing
Justice. On September 11, 1989, the defendant entered a plea of nolo
contedere, he was adjudicated guilty and sentenced as to Counts One,
Two, Three, Four, Five and Six . . . . (PSI ¶ 33.)
The ACCA’s sentence enhancement applies when a defendant has three prior drug or
violent felony offenses that were “committed on occasions different from one another[.]”
18 U.S.C. § 924(e)(1). Offenses may be “committed on occasions different from one
another” even if they are charged in the same indictment. See United States v. Greene,
810 F.2d 999, 1000 (11th Cir. 1986).10
In subsequent opinions, the Eleventh Circuit has reaffirmed that the ACCA
enhancement applies when two or more prior convictions “arose out of a separate and distinct
‘criminal episode[,]’” even if they are charged in the same indictment. United States v. Pope,
132 F.3d 684, 689 (11th Cir. 1998) (citing United States v. Greene, 810 F.2d 999, 1000 (11th
Cir. 1986)). In Pope, the Eleventh Circuit held that when two or more predicate offenses
occurred in close temporal and physical proximity to one another, “‘successful’ completion of
one crime plus a subsequent conscious decision to commit another crime makes that second
Here, the Court finds that the three separate burglary offenses committed on June
23, 1989 were committed on occasions different from one another for purposes of Section
The PSI indicates that Movant burglarized three separate businesses by
breaking through walls to gain entry into the adjacent business. (See PSI ¶ 33.) “In all
three businesses, the defendant placed money and property into bags.” (Id.) These
burglaries were “committed on occasions different from one another.” 11 18 U.S.C. §
In addition to the four offenses described above—the April 19, 1989 burglary and
the three separate burglaries that occurred on June 23, 1989—Movant’s PSI revealed the
following burglary convictions:
crime distinct from the first for the purposes of the ACCA.” Id. at 692. “[S]o long as predicate
crimes are successive rather than simultaneous, they constitute separate criminal episodes for
purposes of the ACCA.” Id.
In fact, the Eleventh Circuit has held that where, as here, burglaries of adjacent
businesses in a single strip mall occur in succession, the offenses count as separate predicate
offenses for purposes of the ACCA enhancement. See United States v. Smallwood, 641 F.
App’x 911, 913 (11th Cir. 2016). In Smallwood, the defendant and an accomplice, during a
single trip to a strip mall, burglarized two fast food restaurants that were located directly adjacent
to each other in the strip mall. Id. at 912. The district court noted that the burglaries were
committed in “immediate succession,” but concluded that they were not “committed on
occasions different from one another” for purposes of the ACCA sentencing enhancement. Id.
The Eleventh Circuit reversed because the burglaries were committed in succession, rather than
simultaneously. Id. at 913. “Although the restaurants were in extremely close proximity to each
other and Smallwood committed one burglary ‘immediately’ after the other, the critical fact is
that he committed the burglaries in succession.” Id. Thus, the Eleventh Circuit held that the two
burglaries were “committed on occasions different from one another.” Id.
Here, as in Smallwood, the three burglaries that occurred on June 23, 1989 occurred in
succession, not simultaneously, and were therefore “committed on occasions different from one
another.” See id.
However, even if the three burglaries that occurred on June 23, 1989 were not
deemed to be committed on occasions different from one another—i.e., if the June 23, 1989
burglaries were deemed to constitute a single ACCA predicate offense—Movant still has at least
five prior convictions for violent felonies that trigger the ACCA enhancement. (See PSI ¶¶ 30,
33, 35-36, 38.)
c. [Fifth ACCA predicate: March 24, 1991—Burglary-Unoccupied]
According to the arrest affidavit, on March 24, 1991, the defendant was
observed by Officer Galvez walking inside a closed shopping center
located at Flagler and 103rd Court. The defendant then stopped behind
a large truck and proceeded to urinate. The defendant then broke the
lower horizontal glass window at 10362 West Flagler Street and gained
entry. The defendant was observed inside the business office searching.
The defendant then ran west inside the cleaners while holding a large
red pipe wrench into the bathroom. The defendant kept running inside
the business trying to hide. The defendant finally raised his hands,
surrendered, and crawled out of the same window from which he had
On April 15, 1991, an information was filed in Dade County Circuit
Court, charging the defendant with (Count One) Burglary-Unoccupied
and (Count Two) Possession of Burglary Tools. On March 17, 1992,
the defendant entered a plea of nolo contendere as to Counts One and
Two. The defendant was sentenced to 364 days, . . . (PSI ¶ 35.)
d. [Sixth ACCA predicate: June 24, 1991—Burglary-Unoccupied]
According to the arrest affidavit, on June 24, 1991, officers were
flagged down by an anonymous citizen who reported that a white male
wearing a blue tee shirt was smashing a grocery door at the corner of
23rd street and Collins Avenue. An officer rushed to the scene and
observed that a glass door had been smashed and was wide open. The
defendant, Salvatore Leone, who was wearing a blue tee shirt, was seen
entering a red Subaru which was being driven by the co-defendant, Jerry
Aguilar. An officer followed the defendant and co-defendant around the
block and pulled them over at 23rd Street and Collins Avenue. Both
defendants exited the vehicle and were apprehended by the officer. A
subsequent search of the vehicle revealed a large number of lottery
tickets, a crowbar, a mallet, a BB rifle, a walkie talkie, duct tape and a
On July 15, 1991, an information was filed in Dade County Circuit
Court charging the defendant with (Count One) Burglary-Unoccupied,
(Count Two) Possession of Burglar Tools, and (Count Three) Grand
Theft-Third Degree. On March 17, 1992, the defendant entered a plea
of nolo contendere, he was adjudicated guilty and he was sentenced to
serve 364 days . . . . (PSI ¶ 36.)
e. [Seventh ACCA
According to the arrest affidavit, on September 29, 1991, officers
arrived in reference to an alarm at 6661 South Dixie Highway (Canton
Restaurant) and observed a U-Haul truck backed up in front of the
business. The glass front door was smashed and co-defendant Patrick
Robert Jamieson was crouched down in the passenger seat of the truck.
The co-defendant was taken into custody. The officers heard banging
noises from inside the business. A search of the premises revealed that
the defendant, Salvatore Leone, was hiding in the kitchen area. The
alarm box was ripped loose and two rear kitchen doors were partially
pried open. The defendant was taken into custody.
On October 17, 1991, an information was filed in Dade County Circuit
Court charging the defendant with (Count One) Burglary-Unoccupied
and (Count Two) Criminal Mischief over $1,000. On March 17, 1992,
the defendant entered a plea of nolo contendere as to each of Counts
One and Two, he was adjudicated guilty and sentenced to 364 days . . . .
Each of these burglary convictions clearly constitutes “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to commit a crime.”
Taylor, 495 U.S. at 598. Thus, at the time Movant was sentenced, Movant had at least
seven prior convictions for “generic” burglary qualifying as ACCA predicates under the
Because Movant’s ACCA predicate convictions qualified under the enumerated
clause without regard to the residual clause at the time of sentencing, Adams, 91 F.3d at
116, his Motion fails the 2255(h) analysis. In re Hires, 825 F.3d at 1303-04 (“Because
Hires’s three prior ACCA predicate convictions qualified under the elements clause
without regard to the ACCA’s residual clause, Hires’s application does not contain a
prima facie claim that his sentence was based on the residual clause, or that his sentence
falls within the scope of the substantive ruling in Johnson or that he will benefit from
For these reasons, the Court finds that it applied the correct legal standard and
came to the correct legal conclusion in its Non-Final Order, and Movant’s Motion to
Reconsider must be denied.
The record does not establish that Movant was sentenced under the
Second, Movant argues—for the first time in his Motion for Reconsideration—
that the Sentencing Transcript indicates that his prior burglary convictions were analyzed
under the residual clause. The Court will construe this argument as an amendment to his
Motion to Vacate and address whether it satisfies the requirements of 28 U.S.C. §
2255(h). See In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (citing Jordan v. Sec’y,
Dep’t of Corrs., 485 F.3d 1351, 1358 (11th Cir. 2007)).
Movant cites the following exchange that occurred while the Government was
advocating for an upward departure:
MS. MULLENHOFF [The Government]: . . . One of the
descriptions of his burglary really raised a question with me. . . . He
smashed open the window. . . .With one of the burglaries he smashed open
the door and he had burglary tools and that crow bar. In another one of
these he had burglary tools that included a big wrench.
I wonder what would have happened in the course of committing
these burglaries if somebody had shown up and encountered him. He’s got
this type of weapon.
MR. DOBRINSKY [Defense counsel]: Judge, that’s completely
THE COURT: Sustained.
MS MULLENHOFF: Why that is considered to be a crime of
violence, because the potential for violence is there. . . .
Tr. of Nov. 1, 1996 Sentencing Hr’g at 18:18-25; 19:1-7, 95-00960-Cr-Lenard, D.E. 111
(Mar. 7, 1997). Movant argues that the Government’s “potential for violence” language
was invoked to quantify “the ‘risk’ posed by the ‘judicially imagined ordinary case’ that
was the hallmark and distinguishing feature of residual clause analysis.” (Mot. at 3
(citing Johnson, 135 S. Ct. at 2557-58).)
When considered in its proper context, the quoted language from the sentencing
hearing cannot be understood to pertain to the ACCA enhancement because the
sentencing hearing involved no discussion of the ACCA enhancement. Movant conceded
that his prior burglary convictions “are considered ‘violent felonies’ under the Armed
Career Criminal Act,” 95-00960-Cr-Lenard, D.E. 96 at 1-2 (Nov. 1, 1996), and the
Parties did not dispute his Guidelines range, see Tr. of Nov. 1, 1996 Sentencing Hr’g at
Rather, the only issue in dispute at the sentencing hearing was whether the Court
should grant or deny the Government’s Motion for Upward Departure:
THE COURT: Okay. Let’s deal with, first of all, the Presentence
Investigation Report. Other than the paragraphs that talk about the upward
departure, which the government has filed the motion and you have
responded, are there any other objections to the Presentence Investigation
MR. DOBRINSKY [Defense Counsel]: No your Honor. . . .
THE COURT: Then I guess the best way to proceed is for me to
hear from the government in regard to their motion for upward departure.
And you can respond, Mr. Dobrinsky.
See id. at 3:20-25; 4:1. Thereafter, the Government moved for an upward departure from
criminal history 6, level 34—the guideline calculation with the ACCA enhancement
pursuant to 4B1.4—to a criminal history 6, level 35 “to reflect the extent of his criminal
history, the fact that he continues to be a threat to society and his threat, the reality that he
is a recidivist.” Id. at 8:24-25; 9:1-2. Defense counsel opposed the Government’s
motion and advocated for a sentence at the low end of the Guidelines range. Id. at 10:1725; 11:1-8. The Government replied to defense counsel’s argument, and it was during
that reply when the Government used the “potential for violence” language. Id. at 19:7.
The statement had nothing to do with the ACCA enhancement and everything to do with
the Motion for Upward Departure. In the end, the Court adopted the factual findings and
guidelines applications contained in the PSI, denied the request for upward departure, and
sentenced Movant at the high end of the guidelines range. (Id. at 35:7-9.)
Even if the Court accepted Movant’s argument that the Government was
advocating for a sentencing enhancement under the ACCA’s residual clause when it
made the “potential for violence” statement, the Government’s statement pertained to
only two of Movant’s burglary convictions—those of March 24, 1991, when Movant was
caught with a pipe wrench, (PSI ¶ 35), and June 24, 1991, when Movant was caught with
two crowbars, (PSI ¶ 36). See Tr. of Nov. 1, 1996 Sentencing Hr’g at 18:18-25. Movant
had at least five other burglary convictions that constituted “generic” burglary for
purposes of the ACCA’s enumerated clause without regard to the residual clause. (PSI ¶¶
30, 33, 38.)
Regardless, the Court finds that the Government’s “potential for violence”
statement is not evidence that the Court used the residual clause to enhance Movant’s
sentence. The record establishes that Movant admitted that his prior burglary convictions
constituted “violent felonies” under the ACCA. 95-00960-Cr-Lenard, D.E. 96 at 1-2. At
the time Movant was sentenced, Eleventh Circuit precedent held that a sentencing court
may look to the PSI to determine whether prior burglary convictions constitute “generic”
burglary under Taylor. Adams, 91 F.3d at 116. Movant’s PSI establishes that seven of
his burglary convictions qualified as ACCA predicates under the enumerated clause.
Thus, there was no basis for the Court to rely on the residual clause.
Because seven of Movant’s “prior ACCA predicate convictions qualified under
the [enumerated] clause without regard to the ACCA’s residual clause, [his] application
does not contain a prima facie claim that his sentence was based on the residual clause, or
that his sentence falls within the scope of the substantive ruling in Johnson or that he will
benefit from Johnson.” In re Hires, 825 F.3d at 1303-04. For that reason, Movant has
failed to carry his burden under 28 U.S.C. § 2255(h), and the Court lacks jurisdiction to
entertain the Motion. 28 U.S.C. § 2244(b)(2)(A). Alternatively, and for the same reason,
Movant’s Motion to Correct Sentence Under 28 U.S.C. § 2255 (D.E. 5) fails on the
merits, as he has not proven by a preponderance of the evidence that he was sentenced in
violation of the laws or constitution of the United States. See 28 U.S.C. § 2255(a).
Accordingly, it is ORDERED AND ADJUDGED that:
Movant’s Motion to Reconsider, or, in the Alternative Request for Final
Order of Dismissal and Certificate of Appealability is GRANTED IN
PART AND DENIED IN PART consistent with this Order and as
Movant’s Motion for Reconsideration is DENIED;
Movant’s request for a final order of dismissal is GRANTED;
The Court’s prior Non-Final Order (D.E. 25) is ADOPTED AS
SUPPLEMENTED herein as a FINAL ORDER OF DISMISSAL;
Movant’s Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
(D.E. 5) remains DISMISSED WITHOUT PREJUDICE for lack
Alternatively, Movant’s Motion to Correct Sentence Pursuant to 28
U.S.C. § 2255 (D.E. 5) is DENIED on the merits and this case is
DISMISSED WITH PREJUDICE;
Final Judgment will be entered separately;
A Certificate of Appealability SHALL NOT ISSUE;12
All pending motions are DENIED AS MOOT; and
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court
finds that Movant has not made a substantial showing of the denial of a constitutional right, and
he is therefore not entitled to a certificate of appealability.
This case is now CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida this 2nd day of
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE
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