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Case Nos.: 4:12cr65/RH/CAS; 4:16cv296/RH/CAS

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

vs. Case Nos.: 4:11cr20/RH/CAS

4:13cv612/RH/CAS

RANDALL ROEBUCK, JR.,

Defendant.

REPORT AND RECOMMENDATION

Defendant Randall Roebuck, through appointed counsel, filed an

amended Motion to Correct Sentence Under 28 U.S.C. § 2255 and a 

supplement thereto contending that he is entitled to sentencing relief 

pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). (ECF Nos. 

70, 74). The Government filed a response in opposition, and Defendant 

filed a reply. (ECF Nos. 75, 78). This case was referred to the 

undersigned for the issuance of all preliminary orders and any 

recommendations to the district court regarding dispositive matters. See 

N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 

72(b). After a review of the record and the arguments presented, it is the 

opinion of the undersigned that Defendant has not raised any issue 

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requiring an evidentiary hearing and that the § 2255 motion should be 

denied. See Rules Governing Section 2255 Cases 8(a) and (b). 

BACKGROUND

Defendant Randall Roebuck, Jr., was convicted after a jury trial of 

possessing a firearm and ammunition as a convicted felon in violation of 18 

U.S.C. §§ 922(g)(1) and 924(e). (ECF Nos. 1, 21). Defendant’s final 

Presentence Investigation Report (“PSR”) reflected a base offense level of 

20 and a two level adjustment because the firearm in his possession had 

been reported stolen for an Adjusted Offense Level of 22. (ECF No. 31, 

PSR ¶¶ 15, 16, 20). Pursuant to the Armed Career Criminal Act, 

(“ACCA”), 18 U.S.C. § 924(e), a person who has three previous convictions 

for a violent felony, a serious drug offense, or both, is classified as an 

armed career criminal, and is subject to a mandatory minimum fifteen year 

penalty. Additionally, the sentencing guidelines provide for an enhanced 

sentence for such an individual. U.S.S.G. § 4B1.4(a) and (b)(3)(B). 

Roebuck qualified for these enhanced penalties due to prior convictions for 

Aggravated Assault with a Deadly Weapon, Armed Robbery with a Firearm; 

Armed Carjacking; False Imprisonment (two charges); Armed Robbery with 

a Deadly Weapon, Burglary of a Dwelling with Person Assaulted. (ECF No. 

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31, PSR ¶ 21). As a result of the Chapter Four enhancement, his offense 

level became 33. Roebuck’s criminal history category was VI, yielding a 

guidelines range of 235 to 293 months. The court sentenced him at the 

low end of this range to a term of 235 months imprisonment, followed by 

five years of supervised release. (ECF No. 36). Defendant appealed, 

challenging the assessment of criminal history points for some of his prior 

convictions. The Eleventh Circuit affirmed (ECF No. 55), and the Supreme 

Court denied Defendant’s petition for certiorari on October 7, 2013. (ECF 

No. 59). 

Defendant timely filed a pro se motion to vacate pursuant to 28 

U.S.C. § 2255 in November of 2013. (ECF No. 60). The Government 

responded and Defendant filed a reply. (ECF Nos. 64, 65). While the 

motion was pending, the Supreme Court issued its decision in Johnson v. 

United States, 135 S. Ct. 2551 (2015) invalidating the so-called “residual 

clause” of the Armed Career Criminal Act. Defendant requested the 

appointment of counsel to assess his eligibility for relief under Johnson, 

which request the undersigned denied as moot in light of the standing order 

of appointment of the Federal Public Defender for this same purpose. 

(ECF Nos. 66, 67). The Office of the Federal Public Defender filed a 

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Motion to Withdraw and for Substitution of Counsel because Defendant’s 

original motion included allegations of ineffectiveness against an attorney 

from that office who had represented Defendant at trial. (ECF No. 68). 

The district court granted the motion and appointed William Edward 

Bubsey, Esq. to represent Defendant. (ECF No. 69). Mr. Bubsey filed a 

“placeholder” amended motion to vacate, followed by a supplement thereto. 

(ECF Nos. 71, 74). Defendant’s amended motion did not reallege the 

claims raised in his original motion, and as such they are deemed 

abandoned. Local Rule 15.1(A). Roebuck now alleges that after 

Johnson, he no longer qualifies as an armed career criminal and that he is 

entitled to resentencing without the application of the ACCA enhancement. 

The Government opposes the motion. 

ANALYSIS

Pursuant to the Armed Career Criminal Act, (“ACCA”), a person who 

has three previous convictions for a violent felony, a serious drug offense, 

or both is subject to a mandatory minimum fifteen-year sentence. 

18 U.S.C. § 924(e)(1). The statutory definition of a violent felony under the 

ACCA is an offense that either “(i) has as an element the use, attempted 

use, or threatened use of physical force against the person of another 

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[known as the elements clause] or (ii) is burglary, arson, or extortion, 

involves the use of explosives [known as the enumerated offenses clause]

or otherwise involves conduct that presents a serious potential risk of 

physical injury to another [known as the residual clause].” 18 U.S.C. § 

924(e)(2)(B)(i) and (ii). An individual subject to ACCA’s enhanced 

penalties also is subject to a greater guidelines range pursuant to U.S.S.G. 

§ 4B1.4. Defendant was sentenced to a term of 235 months 

imprisonment. Absent the application of the ACCA enhancement, he 

would have faced a maximum sentence of ten years imprisonment. See

18 U.S.C. § 924(a)(2). 

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme 

Court ruled that the ACCA’s “residual clause” was unconstitutionally vague. 

Johnson, 135 S. Ct. at 2563. Thus, a prior conviction can only qualify as a 

“violent felony” if it falls within the elements clause or is one of the 

enumerated offenses. 

Defendant’s ACCA sentence was based on four of Defendant’s prior 

convictions. These convictions were: (1) two post-April 24, 19971

 

1 On April 24, 1997, the Florida Supreme Court issued its decision in Robinson v. State, 692 So.2d 883 

(Fla. 1997) clarifying the definition of robbery under Florida law. The court was called upon to determine 

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convictions for armed robbery with a firearm, in violation of § 812.13(2)(a), 

Florida Statutes (PSR ¶¶ 26, 29); a post-April 24, 1997 conviction for 

armed carjacking in violation of § 812.13(2)(a), Florida Statutes (PSR ¶ 28); 

and a post July 1, 1975 conviction for aggravated assault with a deadly 

weapon, in violation of § 784.021(1)(a) (PSR ¶ 25). (See also ECF No. 48 

at 2-4). The Government concedes that none of these convictions was for 

an enumerated crime, but argues that each qualifies as a violent felony 

under the elements clause.

1. Florida Armed Robbery with a Firearm

Defendant pleaded nolo contendere and was adjudicated guilty for 

two separate incidents of armed robbery with a firearm. (ECF No. 31, 

PSR ¶¶ 26, 29). Although the offense conduct in the two incidents took 

place in April and March of 1997 respectively, the convictions occurred on 

August 22, 1997, after the Florida Supreme Court’s Richardson decision, 

noted above. The Eleventh Circuit held in United States v. Seabrooks,

839 F.3d 1326 (11th Cir. 2016), that the defendant’s six August 13, 1997

 

whether a conviction for “robbery by sudden snatching” under Georgia law was a qualifying offense for 

purposes of Florida’s habitual felony offender statute. In so doing, the court distinguished “theft” and 

“robbery” under Florida law, noting the degree of force required for the latter. Robinson, 692 So 2d at 

886-887.

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Florida convictions for armed robbery with a firearm qualified as violent 

felonies under the ACCA’s elements clause. Seabrooks, 839 F.3d 1326, 

1332, 1340-41 (11th Cir. 2016); Seabrooks, 839 F.3d at 1346 (Baldock, J., 

concurring); Seabrooks, 839 F.3d at 1346, 1350-51 (Martin, J., concurring). 

The court has since held that even armed robbery convictions that occurred 

before the Florida Supreme Court clarified the definition of robbery under 

Florida law in Robinson are violent felonies under the ACCA’s elements 

clause. See United States v. Fritts, 841 F.3d 937 (11th Cir. 2016).

Defendant appears to concede in his reply that the Seabrooks

decision is controlling, although he disagrees with the basis for that 

decision. (ECF No. 78 at 6-10). Defendant contends that the case upon 

which Seabrooks relied, United States v. Lockley, 632 F.3d 1238 (11th Cir. 

2011), did not address the arguments he raises herein, to wit, that it is 

impossible to know in any given case which means of committing robbery: 

(1) force, (2) violence, (3) assault, or (4) putting in fear, was used. See

Clark v. State, 43 So. 3d 814, 816 n.3 (Fla 1st DCA 2010) (citing Horn v. 

State, 677 So. 2d 320, 323 (Fla. 1st DCA 1996)). Defendant argues that a 

Florida robbery conviction does not require proof of “violent force” capable 

of causing physical pain or injury to another person as required by Curtis 

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Johnson v. United States, 559 U.S. 133 (2010). Rather, he notes that it 

can be sustained by the application of any level of force sufficient to 

overcome the victim’s resistance, however weak, and that other types of 

force, such as giving a victim a substance to make him incapable of 

resisting, possession of an unseen firearm, or force used against third 

parties during the course of the taking, can provide a basis for conviction. 

Lockley, Defendant argues, did not address the “force” issues he raises 

here, and therefore the Seabrooks’ court’s reliance on Lockley renders that 

precedent invalid with respect to his claim. 

The Seabrooks court provided two alternative bases for its decision. 

It also relied, alternatively, on another Eleventh Circuit case which held that 

a 1974 Florida conviction for armed robbery was “undeniably a conviction 

for a violent felony” under the ACCA’s elements clause. Seabrooks, 839 

F.3d at 1339 (quoting United States v. Dowd, 451 F.3d 1244, 1255 (11th

Cir. 2006)). 

This court cannot disregard Seabrooks based on Defendant’s 

disagreement with one portion of its analysis. Therefore, Defendant’s 

Florida convictions for armed robbery with a firearm, contained in 

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paragraphs 26 and 29 of the PSR, continue to qualify as ACCA predicate 

convictions after Johnson. 

2. Florida Armed Carjacking

Defendant also had an August 1997, conviction for armed carjacking 

that was used to support the ACCA enhancement. (ECF No. 31 at ¶ 28).

No case has specifically addressed whether Florida carjacking is a violent 

crime under the ACCA after Johnson. However, comparison of the Florida 

robbery and the Florida carjacking statutes leads to the inescapable 

conclusion that it is.

Under Florida law, robbery is defined as:

The taking of money or other property which may be the subject 

of larceny from the person or custody of another, with intent to 

either permanently or temporarily deprive the person or the 

owner of the money or other property, when in the course of the 

taking there is the use of force, violence, assault or putting in 

fear. 

Fla. Stat. § 812.133(1) (emphasis added). The Florida carjacking statute 

is identical, except for the substitution of the words “of a motor vehicle” for 

the words “of money or other property,” and the words “of the motor 

vehicle” for the words “of the money or other property.” See Fla. Stat. 

812.133(1). Thus, the object of the Florida robbery statute is property in 

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general, while the Florida carjacking statute encompasses a specific kind of 

property, motor vehicles. The elements of the two offenses are 

indistinguishable. Therefore, under the analysis set forth above, Florida 

carjacking must also qualify as a violent felony under the ACCA. See

Fritts; Seabrooks; Dowd; supra. 

As further support for its position, the Government offers that the 

Florida crime of carjacking is similar to the federal crime of carjacking, and 

that the latter constitutes a crime of violence under the elements clause of 

18 U.S.C. § 924(c), which is similar to the elements crime of the ACCA. 

(See ECF No. 77 at 6). By extension, Florida carjacking would be a

violent felony under the ACCA. See In re: Smith, 829 F.3d 1276, 1280-81 

(11th Cir. 2016); United States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 

1994).

In either event, the court finds that Defendant’s Florida conviction for 

armed carjacking still qualifies, after Johnson as the third necessary 

predicate conviction to support the ACCA enhancement.

C. Florida Aggravated Assault with a Deadly Weapon

The fourth conviction that supported the application of the ACCA 

enhancement was for aggravated assault with a deadly weapon. (ECF No. 

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31, PSR ¶ 25). As Defendant concedes in his reply, the Eleventh Circuit 

has specifically held that such a conviction is a violent felony under the 

ACCA’s elements clause. United States v. Golden, Case No. 15-15624, 

2017 WL 343523 (11th Cir. Jan. 24, 2017); see also In re: Hires, 825 F.3d 

1297, 1301 (11th Cir. 2016); United States v. Gandy, 710 F.3d 1234, 1237 

(11th Cir. 2013) (Florida’s aggravated assault on a law enforcement officer 

is a violent felony under the ACCA’s elements clause.) The court notes 

Defendant’s disagreement with the Golden decision, but again, such 

disagreement does not allow this court to ignore binding precedent. 

Conclusion

The four prior convictions used to support the ACCA enhancement 

remain proper predicates after Johnson, and Defendant has not shown he 

is entitled to relief. As such, his motion to vacate or correct his sentence 

should be denied.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings 

provides that “[t]he district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant,” and if a 

certificate is issued “the court must state the specific issue or issues that 

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satisfy the showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of 

appeal must still be filed, even if the court issues a certificate of 

appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the 

denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 

473, 483–84 (2000) (explaining how to satisfy this showing) (citation 

omitted). Therefore, it is also recommended that the court deny a certificate 

of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final 

order, the court may direct the parties to submit arguments on whether a 

certificate should issue.” If there is an objection to this recommendation by 

either party, that party may bring this argument to the attention of the district 

judge in the objections permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The amended motion to vacate, set aside, or correct sentence 

(ECF No. 70) be DENIED.

2. A certificate of appealability be DENIED.

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At Tallahassee, Florida, this 31st day of January 2017.

 s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed 

within fourteen (14) days after being served a copy thereof. Any different 

deadline that may appear on the electronic docket is for the court’s internal use 

only, and does not control. A copy of objections shall be served upon all other 

parties. If a party fails to object to the magistrate judge's findings or 

recommendations as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal the district 

court's order based on the unobjected-to factual and legal conclusions. See 

11th Cir. Rule 3-1; 28 U.S.C. § 636.

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