[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 15394 Non

- Argument Calendar

________________________ D.C. Docket No s . 1:16

- cv - 02090

- TWT ; 1:01

- cr - 00726

- TWT

- GGB

- 1
CHARLES HARPER, Petitioner

- Appe llant,
versus UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appea l from the United States District Court for the Northern District of Georgia

________________________ (July 16, 2018) Before JORDAN , NEWSOM , and HULL , Circuit Judges. PER CURIAM:

Case: 17-15394 Date Filed: 07/16/2018 Page: 1 of 82 Charles Harper appeals the district court’s denial of his authorized second 28 U.S.C. § 225 5 motion to vacate, which raised a challenge to his sentence under Johnson v. United States , 135 S. Ct. 2551 (2015). The district court granted a certificate of appeal ability (“COA”) regarding whether (1) Harper’s motion to vacate was time

- barred under 28 U.S.C. § 2255(f) , and (2) the Georgia aggravated

assault statute has as an element the use, attempted use, or threatened use of physical force against the person of another. Although we conclude that the district court erred in denying Harper’s motion as untimely , we nonetheless affirm because Harper cannot meet his burden of proving, under Beeman v. United States , 871 F.3d 1215 (11th Cir. 2017), that it is more likely than not that his sentence was enhanced pursuant to the Arme d Career Criminal Act’s residual clause in violation of Johnson . The facts are known to the parties; we will not repeat them here except as necessary. In a § 2255 proceeding, we review a district court’s legal conclusions de
novo and its factual findings for clear error. Farris v. United States , 333 F.3d 1211, 1216 (11th Cir. 2003). We also review de novo the district court’s determination that a § 2255 motion is time

- barred. Beeman , 871 F.3d at 1219. R egardless of the ground stated in the district cou rt’s order or judgment, we may affirm on any ground supported by the record. Castillo v. United States , 816 F.3d 1300, 1303 (11th Cir. 2016).

Case: 17-15394 Date Filed: 07/16/2018 Page: 2 of 83 There is a o ne - year statute of limitations for filing a § 2255 motion to vacate, which begins to run following, among other things, the date on which the judgment of conviction becomes final or “ the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively appl icable to cases on collateral review. ” 28 U.S.C. § 2255(f)(1), (3). The § 2255(f) statute of limitations “requires a claim

by

- claim approach to determine timeliness.” Beeman , 871 F.3d at 1219 (quotation marks omitted). Thus, if a defendant asserts that his § 2255 motion is timely because he filed it within one year of the Supreme Court’s issuance of a decision recognizing a new right, we must determine whether each claim asserted in the motion depends on that new decis ion. Id. The Armed Career Criminal Act (“ 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
... . 18 U.S.C. § 924(e)(2)(B). The first prong of this definitio n is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes clause ” and, finally, what is commonly called the “residual clause.” See

Case: 17-15394 Date Filed: 07/16/2018 Page: 3 of 84 United States v. Owens , 672 F.3d 966, 968 (11th Cir. 2012). On June 26, 2 015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. 135 S. Ct. a t 2557

- 58, 2563. Thus, under Johnson , a defendant’s sentence cannot be enhanced using the ACCA’s residual clause because the residual clause is unconstitutionally vague. Id. at 2563. Thereafter, the Supreme Court held that Johnson announced a new substan tive rule that applies retroactively to cases on collateral review. Welch v. United States , 136 S. Ct. 1257, 1264

- 65, 1268 (2016)
. In Descamps v. United States , the Supreme Court held that when a crime of conviction has only a “single, indivisible set of elements , ” sentencing courts may consider only the statute’s language when determining if a conviction qualifies as a “violent felony” under the ACCA ’s elements clause. 570 U.S. 254, 258 (2013)
. Although we have held that the Descamps decision is retroactively applicable to cases on collateral review, we noted that Descamps did not set out a right newly recognized by the Supreme Court. See Mays v. United States , 817 F.3d 728, 733

- 34 (11th Cir. 2016)
. I mportantly for present purposes, i n Beeman we explained the difference between a claim relying on Johnson and a claim relying on Desc amps , clarify ing that a Johnson claim argues that the defendant was sentenced as an armed career

Case: 17-15394 Date Filed: 07/16/2018 Page: 4 of 85 criminal under the residual clause, whereas “a Descamps claim asserts that the defendant was incorrectly sentenced as an armed career criminal under the element s or enumerated offenses clause
. ” Beeman , 871 F.3d at 1220. We determined that the litigant there had sufficiently raised both. Id
. We concluded th at he had raised a Descamps claim in his § 2255 motion because he relied on that decision in arguing that his Georgia conviction for aggravated assault could no longer qualify as a violent felony under the elements clause. Id. Although the movant had pri marily relied on Descamps , we concluded that he had nevertheless also raised a Johnson claim because he (1) filed h is motion 19 days before the 1

- year anniversary of the Johnson decision and (2) argued that Georgia aggravated assault historically qualified as an ACCA predicate under the residual clause and that courts ha ve defaulted to using the residual clause for many state statutes that might otherwise have qualified under the elements or enumerated

- offenses clauses. Id. at 1220

- 21. We held that the mo vant’s Descamps claim was untimely but that he raised a timely Johnson claim. Id. As to the merits of the Johnson claim, we held that a § 2255 movant must prove that it was “more likely than not” that the use of the residual clause led the sentencing court to impose the ACCA enhancement. Id. at 1221

- 22. As nothing in the record showed that the sentencing court relied on the residual clause

— r ather than the elements clause

— and the movant there cited no precedent from the time

Case: 17-15394 Date Filed: 07/16/2018 Page: 5 of 86 of sentencing showing that his conviction qualified as a violent felony only under the residual clause, we concluded that the movant could not carry his b urden. Id. at 1224

- 25. However, we stated that each case must be judged on its own facts and that different kinds of evidence could be used to show that a sentencing court relied on the residual clause. Id. at 1224 n.4. As examples, we stated that a re cord may contain direct evidence in the form of a sentencing judge’s comments or findings indicating that the residual clause was essential to an ACCA enhancement. Id. Further, we stated that a record may contain sufficient circumstantial evi dence, such as unobjected

- to presentence investigation report (“PSI”) statements recommending that the enumerated

- offenses and elements clauses did not apply or concessions made by the prosecutor that those two clauses did not apply. Id. We clarified, however, that the relevant issue is one of

“ historical fact ”

— whether at the time of sentencing the defendant was sentenced solely under the residual clause. Id. at 1224 n.5. Accordingly, we emphasized that precedent issuing after sentencing “casts very little light, if any, on the key question” whether the defendant was, in fact, sentenced only under the residual clause. Id. Here, under Beeman , the district court erred when it determined that Harper’s § 2255 motion was untimely. First, Harper filed his second § 2255 motion within one year of Johnson
. See Beeman , 871 F.3d at 1219; 28 U.S.C.

Case: 17-15394 Date Filed: 07/16/2018 Page: 6 of 87 § 2255(f)(3). Second, Harper’s claim is appropriatel y characterized as a Johnson claim, despite his frequent citations to Descamps , because he (1) filed his § 2255 motion days before the one

- year deadline for filing a Johnson claim, indicating that he intended to invoke Johnson ; (2) argued that the only cla use under which his Georgia aggravated assault conviction could have qualified under was the residual clause because there was no existing precedent analyzing it under the elements clause; and (3) asserted that he no longer had three predicate convictions after Johnson
. Beeman , 871 F.3d at 1220

- 21. Despite the timeliness of Harper’s motion, his Johnson claim nonetheless fails. Like the movant in Beeman , Harper cannot prove that it is more likely than not that his sentence was enhanced under the ACCA’s residual clause. See Beeman , 871 F.3d at 1221

- 22. In fact, he made a series of concessions before the district court that are dispositive of the issue. In his second § 2255 motion, Har per acknowledged that whether Georgia aggravated assault remained a violent felony after Johnson was “up in the air,” and noted that there was no binding precedent from this Court addressing the issue. Beeman , 871 F.3d at 1224

- 25. In his reply, Harper ad mitted that the record was silent as to whether the district court used the residual clause to enhance his sentence, as the district court did not specify under which clause his offenses qualified. Beeman , 871 F.3d at 1223. The most he could say is that the sentencing court may have relied on the residual clause

Case: 17-15394 Date Filed: 07/16/2018 Page: 7 of 88 because it did not affirmatively rely on the elements clause. See Beeman , 871 F.3d at 1223

- 25
. That is not enough. Harper has effectively conceded that he cannot meet the burden in Beeman
. Fur thermore , Harper’s concessions aside, t he record here is silent as to which clause the court relied on to enhance his sentence . T he district court at sentencing di d not explain or indicate, one way or the other, whether the ACCA enhancement applied because Georgia aggravated assault was a violent felony under the elements clause or residual clause. Beeman , 871 F.3d at 1221

- 25. While t he sentencing court noted that Harpe r was an armed career criminal

— an assertio n with which Harper’s c ounsel affirmatively agreed

— it did not state how it came to that determination. Nor is Harper able to point to any precede nt from this Court that analyz es the Georgia aggravated assault statute under the residual clause. Thus, Harp er (like the movant in Beeman ) cannot show that he more likely than not was sente nced under the residual clause. B ecause Harper cannot meet his burden of proving, pursuant to Beeman , that i t was more likely than not his sentence was enhanced under the ACCA’s residual clause, we AFFIRM
.

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