[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-12298

Non-Argument Calendar

____________________

DERRICK G. CARMICHAEL, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-01939-TWT

____________________

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2 Opinion of the Court 19-12298

Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

This appeal involves the denial of Derrick Carmichael’s 

motion to vacate his sentence under 28 U.S.C. § 2255. The case 

comes before us for the second time. See Carmichael v. United 

States, 758 F. App’x 860 (11th Cir. 2019) (unpublished). To briefly 

repeat the relevant facts, Carmichael received the mandatory 

minimum sentence of 15 years’ imprisonment under the Armed 

Career Criminal Act after he pleaded guilty to firearm possession 

by a felon in violation of 18 U.S.C. § 922(g), based on three felony 

convictions under Georgia’s aggravated assault statute and one 

conviction for cocaine possession with intent to distribute. Id. at 

861. Carmichael contends that his sentence must be vacated 

because his aggravated assault convictions were classified as 

violent felonies under ACCA’s residual clause, which the Supreme 

Court held was unconstitutionally vague. See Johnson v. United 

States, 576 U.S. 591, 597, 606 (2015).

In our previous decision, we remanded for the district court 

to apply the test this Circuit established in Beeman v. United States

to assess whether Carmichael has shown that he was more likely 

than not sentenced as an armed career criminal “solely because of 

the residual clause.” Carmichael, 758 F. App’x at 863; Beeman v. 

United States, 871 F.3d 1215, 1224 (11th Cir. 2017). The issue 

before us now is whether Carmichael has made that showing. 

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19-12298 Opinion of the Court 3

After careful review, we conclude that he has not. We therefore 

affirm the denial of his motion to vacate his sentence.

The Armed Career Criminal Act mandates a 15-year 

minimum sentence for a criminal defendant convicted under 18 

U.S.C. § 922(g) who already has three or more convictions “for a 

violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). 

Now, an offense other than “burglary, arson, or extortion” or one 

that “involves use of explosives” can qualify as a violent felony,

under ACCA’s elements clause, if it “has as an element the use, 

attempted use, or threatened use of physical force against the 

person of another.” Id. § 924(e)(2)(B)(i)–(ii). But before the 

Supreme Court ruled ACCA’s residual clause unconstitutional in 

Johnson v. United States, sentencing courts could also count 

offenses as violent felonies if they involved “conduct that presents 

a serious potential risk of physical injury to another.” Id.

§ 924(e)(2)(B)(ii). Because Johnson applies retroactively to cases on 

collateral review, prisoners like Carmichael can challenge their 

ACCA sentences as having been issued only under the 

unconstitutional residual clause.1 See Welch v. United States, 578 

U.S. 120, 135 (2016).

1 No claim under Descamps v. United States is before us. 570 U.S. 254 (2013). 

Carmichael timely raised a Johnson claim that he was sentenced under the 

residual clause, not a Descamps claim that he was incorrectly sentenced under

the elements clause. Carmichael v. United States, 758 F. App’x 860, 862–63 

(11th Cir. 2019) (unpublished); see Beeman v. United States, 871 F.3d 1215, 

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Beeman lays out two paths for a § 2255 movant aiming to 

satisfy his burden of showing, as a matter of historical fact, that he 

was sentenced solely under the residual clause. First, the movant 

may point to evidence in the sentencing record that shows that the 

district court relied only on the residual clause. Beeman, 871 F.3d 

at 1224–25. That evidence may include, among other things, 

statements by the sentencing judge or the parties. See id. at 1224 

n.4. Second, the movant may show that “the law was clear at the 

time of sentencing that only the residual clause would authorize a 

finding that the prior conviction was a violent felony.” Id. at 1224 

n.5. Such clear, binding precedent offers powerful circumstantial 

evidence that the district court proceeded under the residual clause

alone. See id. To provide sufficient evidence of the district court’s 

reasoning, the precedent must have “compelled the district court 

to rely on the residual clause and only the residual clause.” Pitts v. 

United States, 4 F.4th 1109, 1115 (11th Cir. 2021).

Carmichael concedes that the sentencing record does not 

show that he was sentenced under the residual clause. So he turns 

instead to the second path, seeking to establish that case law at the 

time he was sentenced in 2009 made it obvious that an aggravated 

assault in violation of Georgia law qualified as a violent felony only 

under the residual clause. Because he relies on the state of the law 

1220 (11th Cir. 2017). We therefore do not consider whether he was correctly 

sentenced under the elements clause.

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at the time he was sentenced, our review is de novo. Williams v. 

United States, 985 F.3d 813, 816 (11th Cir. 2021).

We assume for the purposes of this analysis that by the time 

of Carmichael’s sentencing, Georgia law was sufficiently clear that 

a conviction for aggravated assault could include offenses 

committed with a mens rea of recklessness.2 See Patterson v. State, 

299 Ga. 491, 492–95 (2016); see also United States v. Moss, 920 F.3d 

752, 758 (11th Cir. 2019), opinion reinstated, 4 F.4th 1292 (11th Cir. 

2021) (en banc). And we recognize that later cases of the Supreme 

Court and this Circuit, decided after Carmichael was sentenced, 

have held that crimes requiring only a reckless mental state do not 

qualify as violent felonies under ACCA’s elements clause. See 

Borden v. United States, 141 S. Ct. 1817, 1825 (2021); Moss, 920 

F.3d at 756–57. Still, Carmichael has failed to show that he was 

sentenced under the residual clause, because he has pointed to no 

binding precedent existing at the time of his sentencing that clearly 

established that his aggravated assault crimes could only qualify as 

violent felonies under the residual clause.

In 2004, the Supreme Court decided Leocal v. Ashcroft, 

which held that crimes requiring only a negligent mental state do 

not fall within a statutory definition that resembles ACCA’s 

2 Carmichael argued before the district court that the statute he violated also 

covered accidental and negligent acts and therefore could not qualify under 

ACCA’s elements clause at the time of his sentencing. But he does not raise 

that argument on appeal, so we will not consider it. See Samak v. Warden, 

FCC Coleman–Medium, 766 F.3d 1271, 1273 n.1 (11th Cir. 2014).

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elements clause. 543 U.S. 1, 8–10 (2004). Between that case and 

the Supreme Court’s resolution of the issue in Borden v. United 

States, circuit courts reached divergent decisions when addressing 

whether statutes covering reckless conduct could qualify as violent 

felonies under the elements clause—Leocal expressly declined to 

reach that issue. Id. at 13; see Borden, 141 S. Ct. at 1823. This 

Circuit, for its part, had not clearly decided the issue by the time of 

Carmichael’s 2009 sentencing. As we explained in United States v. 

Moss, our 2010 decision in United States v. Palomino Garcia

“compels the conclusion that the ACCA’s elements clause likewise 

requires the intentional use of force” and so does not include 

offenses that cover reckless conduct as defined by Georgia law. 

Moss, 920 F.3d at 756–57 (citing United States v. Palomino Garcia, 

606 F.3d 1317, 1336 (11th Cir. 2010)). But Carmichael’s sentencing 

predated Palomino Garcia by around eight months, so that case 

does not establish what the law was when Carmichael was 

sentenced.

The murky state of the law at the time Carmichael was 

sentenced does not support a conclusion that he was more likely 

than not sentenced under the residual clause. No “clear precedent 

showing that the court could only have used one clause or another” 

existed at that time, and “merely persuasive authority on the state 

of the law is insufficient to determine the sentencing court’s 

reasoning.” Williams, 985 F.3d at 820 (quotation omitted). The 

decisions of other circuit courts are not binding on district courts 

within this Circuit. See Pitts, 4 F.4th at 1116 n.3.

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Cases decided by the time Carmichael was sentenced may 

have laid the foundation for future binding decisions that excluded 

crimes covering recklessness from the elements clause. That 

nascent case law, however, would not have “compelled” the 

district court to classify Carmichael’s aggravated assault 

convictions as violent felonies only under the residual clause. See

id. at 1115. As Beeman described, a “decision today that Georgia 

aggravated assault no longer qualifies under present law as a 

violent felony under the elements clause (and thus could now

qualify only under the defunct residual clause)” casts “very little 

light, if any, on the key question of historical fact” at issue—

whether Carmichael was sentenced only under the residual clause. 

871 F.3d at 1224 n.5. Carmichael cannot satisfy his burden of proof 

with this weak evidence.

We AFFIRM the denial of Carmichael’s motion to vacate his 

sentence.

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