Green v. United States of America

Filing 10

The Court vacates re 7 REPORT AND RECOMMENDATIONS. REPORT AND RECOMMENDATION denying the 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jerry Orenthal Green Objections to R&R due by 3/15/2017. Signed by Judge G. R. Smith, Jr on 3/1/17. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JERRY ORENTHAL GREEN,

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Movant,

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UNITED STATES OF AMERICA,

CV416-153
CR405-139

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Respondent.

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REPORT AND RECOMMENDATION
The Court VACATES its prior Report and Recommendation
(R&R), doc. 69,' and substitutes this in its place.' Jerry Orenthal Green
was convicted by a jury of violating 18 U.S.C. § 922(g) (possession of a
firearm by a convicted felon) and given an enhanced sentence of 293
months under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1). See does. 1 (indictment); 41 (jury verdict); 46 (judgement for

293 months' imprisonment); 53 (mandate affirming judgment, filed
September 7, 2006). Invoking 28 U.S.C. § 2255, he seeks to exploit the
new rule announced in Johnson v. United States, 576 U.S. -, 135 S. Ct.

1

The Court is citing to the criminal docket in CR405-139 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.
2

This R&R serves to address Green's timely-lodged objections to the Court's prior
R&R, which raised several matters meriting further review.

2551 (2015), and made retroactive by Welch v. United States, 578 U.S. -,
136 S. Ct. 1257 (2016), to neutralize his career-felon enhancement. 3 Doc.
62 at 4. The Court's last R&R ruled against Green, but he filed Fed. R.
Civ. P. 72(b)(2) Objections addressed here. Doc. 72.
:tJHhiIShP•
Green was found guilty by a jury of one count of possession of a
firearm by a convicted felon. Doc. 41. His Presentence Investigative
Report (PSR) deemed him an armed career criminal, and the Court
ultimately sentenced him to 293 months' imprisonment. Does. 45 & 46;
PSR at ¶IT 22, 28 1 30.
After unsuccessfully appealing his conviction, United States v.

Green, 219 F. App'x 843 (11th Cir. 2006), Green filed a motion to correct
his sentence, arguing, inter alia, that the PSR erroneously described his
conviction for two counts of robbery as separate incidents. Doc. 55 at 2.
The Court denied his motion, and his appeal from that order was
dismissed for lack of prosecution. Does. 56 & 61.
The Supreme Court has since held in Johnson that the "residual

The enhancement was based upon Green's prior convictions for drug offenses and
violent felonies, to wit: possession with intent to distribute marijuana, armed
robbery, and two counts of robbery. PSR ¶IT 28-30; see also doe. 5-1.
2

clause" of the ACCA, 18 U.S.C. § 924(e)(2)(B), is unconstitutionally
vague. 135 S. Ct. at 2557. Green argues that his convictions for robbery
do not survive Johnson as ACCA-predicates. Doc. 62-1 at 7. The
Government opposes. Doc. 67.
II. ANALYSIS
A. The Johnson Decision
The ACCA provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of
18 U.S.C. § 922(g), and (2) have "three prior convictions. . . for a violent
felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain
vanilla, felon-in-possession convictions fetch a maximum 10 year
sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement
mandates a 15 year minimum (and a maximum of life). 18 U.S.C.
§ 924(e)(1).
To qualify as an ACCA "violent felony" predicate at the time of
sentencing, a prior conviction must be an offense that (1) "has as an
element the use, attempted use, or threatened use of physical force
against the person of another"; (2) "is burglary, arson, or extortion, [or]
involves the use of explosives"; or (3) "otherwise involves conduct that
3

presents a serious potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(04ii). These three definitions are known, respectively, as
(1) the elements clause, (2) the enumerated crimes clause, and (3) the
residual clause.

Johnson held that that "residual clause" is

unconstitutionally vague.

See 135 S. ct. 2551, 2557. It said nothing,

however, about ACCA enhancements predicated on convictions for
"serious drug offenses" or "violent felonies" as defined by ACCA
provisions other than the residual clause.

See, e.g., Johnson, 135 S. Ct.

at 2563 ("Today's decision does not call into question application of the
Act to the four enumerated offenses, or the remainder of the Act's
definition of a violent felony," much less its definition of "serious drug
offense"). After Johnson, enhancements based on those offenses remain
valid.

United States v. Tinker, 618 F. App'x 635, 637 (11th cir. 2015)

(convictions that qualify as violent felonies under the "elements" clause
of the ACCA, rather than the "residual" clause, survive Johnson); United

States v. Garcia-Martinez, 2017 WL 104462 at * 2 (11th cir. Jan. 11,
2017) ("One type of qualifying offense is a 'violent felony.").
B. ACCA Predicates
Green disputes that his ACCA-enhanced sentence survives

Johnson.

Docs. 62 & 72. He contends that none of his four prior

convictions qualify as ACCA predicates and that, regardless, he does not
have a total of three qualifying offenses because his two prior convictions
for robbery actually "consisted of one simultaneous crime occurring at
the exact same time and location and not at different times." Docs. 62-1
at 7 & 72 at 9-10. Green is correct that his conviction for possession with
intent to distribute marijuana under South Carolina law is not a valid
ACCA predicate.' His three remaining convictions for the armed robbery

Green previously conceded that this conviction qualified as an ACCA predicate in
his moving papers, see doe. 62, but now objects to its use for ACCA-enhancement,
doe. 72, despite contrary authority. In re Williams, 826 F.3d 1351, 1356 (2016) (prior
convictions for a "felony drug offense" are "not even arguably affected by Johnson's
holding regarding the ACCA's residual-clause definition of a violent felony.").
Though there are no Shepard documents in the record to elucidate the history of this
conviction, S.C.C.A. § 44-53-370(b)(2) provides that a person convicted of possession
with intent to distribute marijuana, a Schedule I controlled substance, or cocaine, a
Schedule II controlled substance, "is guilty of a felony and upon conviction, for a first
offense must be imprisoned not more than five years or fined not more than five
thousand dollars, or both."
Under the ACCA, only those state drug offenses "for which a maximum term of
imprisonment of ten years or more is prescribed by law" qualify as "serious drug
offense[s]." 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). Thus, a first-time
conviction for possession could not qualify as an ACCA-predicate. But this was not
Green's first rodeo. He had previously been convicted of possession of cocaine in
violation of O.C.G.A. § 16-13-300), see PSR ¶ 26, and his Georgia probation was
revoked upon his South Carolina conviction for possession of marijuana in violation
of S.C.C.A. § 44-53-370(b)(2). See PSR 111126 & 28.
Still, Green was apparently assigned "Youthful Offender" status for that offense.
And because it is unclear just what transpired at the indictment, plea, and sentencing
level in his possession with intent to distribute marijuana case, the Court must
conclude that he was sentenced as a first-time offender -- subject to only a maximum
5

of Kenneth Arkwright and robbery by intimidation of Sanchez Gardner
and Steven Williams, however, remain qualifying offenses triggering
ACCA enhancement.
1. Armed Robbery
Green previously conceded that his 1992 conviction for armed
robbery was an ACCA predicate, but now objects that it no longer
qualifies. See does. 62 & 72. His contention is patently without merit.
At the time of his conviction, under Georgia law "[a] person commits the
offense of armed robbery when, with intent to commit theft, he or she
takes property of another from the person or the immediate presence of
another by use of an offensive weapon.

..

."

O.C.G.A. § 16-8-41; see PSR

at ¶ 30 (on October 24, 1992, movant robbed Kenneth Arkwright at
gunpoint and took his car and cash). Armed robbery clearly "has as an
element the use, attempted use, or threatened use of physical force
against the person of another" within the meaning of the ACCA.
18 U.S.C. § 924(e)(2)(B).

term of five years. That conviction therefore cannot be relied on as a "serious drug
offense" within the meaning of the ACCA. This result offers him no succor, however,
as his other three prior "violent felonies" remain valid ACCA predicates.
6

2. Robberies by Intimidation
Green was indicted by the State of Georgia for two counts of armed
robbery and two counts for felon-in-possession of a firearm during the
commission of a crime. Doc. 67-1 at 6-7. He pled guilty to two counts of
"robbery" and one count of possession of a firearm as a convicted felon in
exchange for dismissal of the charge of use of a firearm during
commission of a crime. Id. at 10, 12-13.
Interestingly, an apparent clerical error appears on the indictment.
Green was charged with two separate counts of "armed robbery" in
violation of " 16-8-4."

See doe. 67-1 at 6. But O.C.G.A. § 16-8-4

criminalizes "theft by conversion," while O.C.G.A. § 16-8-41 criminalizes
"armed robbery." Though Johnson and its progeny demand a high level
of specificity when it comes to Shepard documents' supporting the
statutory basis of conviction, it is clear from the indictment that the
grand jury had been directed to determine whether Green had committed
"armed robbery" as defined by O.C.G.A. § 16-8-41, and had in fact
charged Green with armed robbery under that statute, not § 16-8-4. See

The Court relies upon a limited class of documents associated with the defendant's
state conviction (e.g., the indictment, jury instructions, or plea agreement and
colloquy) to determine the statutory basis of conviction. See Shepard v. United
States, 544 U.S. 13, 26 (2005).

7

doe. 67-1 at 6 (indictment charging Green with having committed
"armed robbery" in two separate incidents on the same day, by taking,
"with intent to commit a theft," Steven Williams' wallet and Sanchez
Gardener's money "by use of an offensive weapon, to wit: a certain
firearm."); see also PSR at ¶ 29. Further complicating matters, Green
pled guilty to a reduced charge of "robbery." Doc. 67-1 at 10.
Movant, apparently latching upon this confusion, contends that he
pled guilty to and was actually convicted of "robbery by snatching,"
under O.C.G.A. § 16-8-40. See, e.g., does. 62 at 4, 10-13; 68 at 14. The
Georgia armed robbery statute itself, however, provides only for the
lesser included offense of "robbery by intimidation" under O.C.G.A. § 168-40. O.C.G.A. § 16-8-41(a); see Johnson u. United States, 559 U.S. 133,
144 (2010) (where Shepard documents do not establish which separate
crime the conviction necessarily involves, the Court must assume that
the prior conviction involved the least prohibited act punishable under
the statute). As Green clearly did not plead guilty to two counts of
armed robbery under § 16-8-41 (as charged in the indictment) -particularly given that he was sentenced to only 4 years' imprisonment
(to be served concurrently on each count), when O.C.G.A. § 16-8-41(b)
8

requires a minimum 10-year sentence for armed robbery -- the Court

must conclude that he pled guilty to the (only) lesser included offense of
robbery by intimidation. See id. at § 16-8-41(a). His contention that he
actually pled to "robbery by snatching" is without merit, as it is both not
an included offense under the statute and there is absolutely

no

evidence in the Shepard documents that robbery by snatching was even
on the table. See doe. 67-1 at 10-11 (negotiated plea for "robbery"), 12
(4-year sentence imposed on two counts of "armed robbery" and felon-inpossession of a firearm); doe. 62-1 at 25. The next step here, then, is to
examine whether robbery by intimidation qualifies as an ACCA
predicate.

6

The statute provides that the "offense of robbery by intimidation shall be a lesser
included offense in the offense of armed robbery." O.C.G.A. § 16-8-41(a). No other
variation of robbery under § 16-8-40 is listed, and this Court has not found any
Georgia Supreme Court case holding robbery by snatching to be a lesser included
offense of § 16-8-41. "Pursuant to the principle of statutory construction,
'Expressurn facit cessare taciturn' (if some things are expressly mentioned, the
inference is stronger that those omitted were intended to be excluded) and its
companion, the venerable principle, 'Expressio unius est exclusion alterius" ("The
express mention of one thing implies the exclusion of another")," the identification of
only § 16-8-40(b) robbery by intimidation as a "lesser included offense" of O.C.G.A.
§ 16-8-41 is presumed to exclude other types of robbery not specifically listed, like
robbery by sudden snatching. Alexander Properties Grp. Inc. V. Doe, 280 Ga. 306, 309
(2006) (discussing O.C.G.A. § 16-12-100(b)(5)); see also United States v, Koonce, 991
F.2d 693, 698 (11th Cir. 1993) ("The canon of statutory construction that the
inclusion of one implies the exclusion of others is well-established."); accord Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 107
(2012).

Robbery in Georgia can be committed in one three of ways: by use
of force; by intimidation, threat or coercion, or placing a person in fear of
immediate bodily injury; or by "sudden snatching." O.C.G.A. § 16-8-40.
Given the disjunctive listing of statutory elements, Georgia's robbery
statute cannot categorically qualify as a violent felony following Johnson.

In re: Herman McClouden, No. 16-13525-J (11th Cir. July 12, 2016), copy
available at McCiouden v. United States, 2016 WL 5109530 at *4 (S.D.
Ga. Sept. 20 2016). Instead, it must be analyzed under the modified
categorical approach.

Mathis v. United States, 136 S.Ct. 2243, 2249

(2016); Descamps v. United States, 570 U.S. -, 133 S.Ct. 2276, 2281
(2013) (the modified categorical approach is used when a statute is
"divisible," such that it "sets out one or more elements of the offense in
the alternative").
Robbery by intimidation occurs when "[a] person . . . with the
intent to commit theft . . . takes property of another from the person of
another or the immediate presence of another. . . by intimidation, by the
use of threat or coercion, or by placing such person in fear of immediate
serious bodily injury to himself or to another . . . ." O.C.G.A. § 16-840(a)(2). "A conviction for robbery by intimidation . . . requires proof
10

that the theft was attended with such circumstances of terror -- such
threatening by word or gesture, as in common experience, are likely to
create an apprehension of danger, and induce a [person] to part with his
property for the safety of his person." Smith v. State, 247 Ga. App. 173
(2000). On the state statute's elements, that's a clear use of the
"threatened use of physical force against the person of another."
18 U.S.C. § 924(e)(l)(2)(B)(i); Brown v. United States, 2016 WL 7013531
at *3 (S.D. Ga. Nov. 7, 2016) (citing Cooks v. United States, 2015 WL
7069665 at *2 (S.D. Ga. Nov. 13, 2015) ("[R]obbery by intimidation
contains as an element a threat, implicit or overt, which would likely
create fear for the safety of the person being threatened. Although this
definition does not include the word force, the natural corollary of an act
that creates fear for the safety of a person is the threatened use of
physical force against that person. 11)).7 See In re Hires, 825 F.3d 1297,

' Indeed, the Seventh Circuit reached this same conclusion and held that Georgia's
robbery by intimidation statute falls under the elements clause of the ACCA because
it contains as an element a threat of the use of physical force. See United States v.
Thomas, 280 F.3d 1149, 1159 (7th Cir. 2002). Other circuits have held that similar
robbery by intimidation statutes fall under the elements clause. See, e.g., United
States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 2014); United States v. Taylor, 529
F.3d 1232, 1237 (9th Cir. 2008); United States u. Melton, 344 F.3d 1021, 1026 (9th
Cir. 2003); United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995) (Virginia robbery
by intimidation statute involved threatened use of physical force); see also United
States v. Smith, 2016 WL 6875877 at 6 (E.D. Tenn. Nov. 21, 2016) ("All federal
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1303 (11th Cir. 2016) ("because [movant's] convictions qualified under
the elements clause, that settles the matter for Johnson-residual clause
purposes regardless of whether those convictions would count were [he]
being sentenced today.").
Green's convictions for armed robbery (of Kenneth Arkwright) and
robbery by intimidation (of Steven Williams and Sanchez Gardener)'

courts of appeals which have considered robbery offenses that. . . require more force
than mere purse snatching have concluded that such offenses qualify as either crimes
of violence or violent felonies under the use-of-force clause.") (collecting cases).
8

Green disputes that the two robberies should be considered separate incidents, as
they occurred on the same day; he was arrested for both at the same time; and the
two incidents were presented together at the indictment, plea, and conviction stages.
Does. 62 at 6 & 72 at 9. This claim, however, is procedurally defaulted. See Green,
219 F. App'x 843 (only claim presented on appeal was on sufficiency of the evidence);
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (a movant may not use
his collateral attack as "a surrogate for a direct appeal."). The PSR described the
convictions as separate incidents for enhancement purposes, and movant did not
object to (or appeal) that characterization. United States v. Wade, 458 F.3d 1273,
1277 (11th Cir. 2006) ("[A] failure to object to allegations of fact in a PSI admits
those facts for sentencing purposes."); see also In re Hires, 825 F.3d at 1302
(undisputed facts in a PSR may be relied upon in determining whether prior
convictions are ACCA predicates). And, he presents no ineffective assistance of
counsel claim that can overcome this default. See doe. 62.
The Shepard documents, further, indicate that these two robberies were properly
considered separate occasions for enhancement purposes. See United States v. Sneed,
600 F.3d 1326, 1332-33 (11th Cir. 2010) (courts may look to Shepard-approved
sources to determine whether the prior offenses were "temporally distinct"
(committed on different occasions) for purposes § 924(e) enhancement); doe. 67-1 at
6-11 (indictment and guilty plea to two counts of felony robbery, with two four-year
sentences to be concurrently served, for armed robberies of Sanchez Gardner and
Steven Williams); doe. 62-1 at 29 (plea hearing transcript). United States v. Weeks,
711 F.3d 1255, 1261 (11th Cir. 2013) (the fact that the robberies "occurred within
close proximity to one another is not determinative, as even small gaps in time and
12

thus meet the three-conviction threshold for ACCA career-offender
enhancement. 18 U.S.C. § 924(e)(1).

Johnson therefore has no impact

on the validity of his sentence.
III. CONCLUSION
Jerry Orenthal Green's prior convictions remain predicate offenses
triggering an ACCA enhancement. See 18 U.S.C. §§ 924(e)(1) & (2)(B).
His § 2255 motion should thus be DENIED on the merits. 9 For the

place are sufficient to establish separate offenses."). And the fact that Green was
arrested for both crimes at the same time has no bearing on whether he was charged
and convicted for both crimes separately.
Green's objection that the sentencing Superior Court judge believed that his "two
robbery convictions occurred simultaneously and that [he] did not ple[a]d guilty to
robbery by intimidation" does not change these facts. Doc. 72 at 10; see doe. 62-1 at
25. The letter he relies upon (in addition to not being an approved Shepard
document) does not say what Green seems to think it says: instead, it
noncommittedly explains that "in outlining the case to the judge, the assistant
District Attorney does not address the date of the incident[,] but it appears from her
statement that the event involving both victims occurred at the same time." Doc. 621 at 25. This statement does not establish that the two robberies occurred, were
considered, or were treated at sentencing as one single simultaneous offense. Rather,
Green's own exhibit (of the state court plea hearing on the two armed robbery
charges) reveals only that he was charged with two separate counts of armed robbery,
and that via his plea agreement he intended to "plead[ ] to two separate counts of
robbery." Doc. 62-1 at 29 (emphasis added); doe. 67-1 at 6-7 & 10-11.
Again, Green's belated objection to the facts contained within the PSR are
procedurally defaulted and cannot now support his motion to vacate his sentence.
And between his conviction for armed robbery and two convictions for robbery by
intimidation, Green still makes it to the magic number three for § 924(e)
enhancement as a career offender.
Because his motion is without merit and his contentions are unambiguously
contradicted by the record, Green's request for an evidentiary hearing (does. 62 at 13
& 72 at 10) is DENIED. Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th
13

reasons set forth above, it is plain that he raises no substantial claim of
deprivation of a constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule
11(a) of the Rules Governing Habeas Corpus cases Under 28 U.S.C.
§ 2255 ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
Any motion for leave to appeal in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Magistrate Judge's Report and Recommendations." Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this

Cir. 2014) (a hearing is unnecessary "if the allegations are 'patently frivolous,' 'based
upon unsupported generalizations,' or 'affirmatively contradicted by the record.");
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (same); Lynn, 365 F.3d
at 1239 (where the motion "amnount[ed] to nothing more than mere conclusory
allegations, the district court was not required to hold an evidentiary hearing on the
issues and correctly denied Lynn's § 2255 motion.").
14

R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell u. U.S., 612 F. App'x
542 1 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 1st day of
March, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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