[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 12056 Non

- Argument Calendar

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

- cv - 02079

- ODE , 1:91

- cr - 00324

- ODE

- WLH
LEE DREW BUTLER, Petitioner

- Appellant,

versus UNITED STATES OF AMERICA, Respondent

- Appellee.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ ( May 30, 2018 ) Before TJOFLAT , MARCUS and ROSENBAUM , Circuit Judges. PER CURIAM: Lee Drew Butler, a federal prisoner , appeals the D istrict C ourt’s denial of his motion to vacate, set aside, or correct sentence, 28 U.S.C. § 2255

. Butler

Case: 17-12056 Date Filed: 05/30/2018 Page: 1 of 72 argues that his prior Georgia armed robbery convictions were no longe r Armed Career Criminal Act (“ ACCA ”) predicate violent felonies in light of the Supreme Court’s decision in Johnson v. United States , 135 S. Ct. 2551 (2015)

. I. In reviewing a district court’s denial of a § 2255 motion, we review de novo the court’s legal conclusions and revi ew the court’s factual findings for clear error. Spencer v. United States , 773 F.3d 1132, 1137 (11th Cir. 2014) ( en banc ). When appropriate, w e will review de novo whether a defendant’s prior conviction qualifies as a violent felony under the ACCA. United States v. Hill , 799 F.3d 1318, 1321 (11th Cir. 2015). Ordinarily, appellate review is limited to the issues specified in the COA. Murray v. United States , 145 F.3d 1249, 1250

– 51 (11th Cir. 1998). However,
proc edural issues that must be resolved before we can address the underlying claim specified in a COA are presumed to be encompassed in the COA. McCoy v. United States , 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (reviewing as within the scope of the COA whether the movant’s § 2255 motion was procedurally barred when the district court had not addressed the issue). Further, i t is well established that we may affirm the district court on any ground supported by the record, regardless of the ground stated in the district court’s order or judgment. Castillo v. United States , 816 F.3d 1300, 1303 (11th Cir. 2016).

Case: 17-12056 Date Filed: 05/30/2018 Page: 2 of 73 The ACCA, which imposes heightened prison s entences for certain defendants with three prior convictions for either violent felonies or serious drug offenses, 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, a ttempted 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 ris k of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is referred to as the “elements” clause, the second prong contains the “enumerated crimes” clause and, finally, what is commonly called the “residual” clause. United States v. Owens , 672 F.3d 966 , 968 (11th Cir. 2012).
I n Johnson , the Supreme Court held that the residual clause was unconstitutionally vague, but stated that its holding did not affect the elements clause. 135 S. Ct. at 2557

– 58, 2563. The Court later held that its decision in
Jo hnson applied retroactively to cases on collateral review. Welch v. United States , 136 S. Ct. 1257, 1268 (2016). Thus, a § 2255 claim challenging a sentence under the residual clause is known as a “ Johnson claim.” A challenge to an improper sentence under the elements or enumerated offenses clauses, on the other hand, is commonly called a “ Descamps claim,” after Descamps v. United States , in which the Supreme Court clarified the “categorical

Case: 17-12056 Date Filed: 05/30/2018 Page: 3 of 74 approach” for evaluating offense elements. 570 U.S. 254, 26 0 , 133 S. Ct. 2276, 2283 (2013) ; see also United States v. Davis , 875 F.3d 592, 597 (11th Cir. 2017) (explaining that, under the categorical approach, we “presume that the state conviction rested upon the least of the acts criminalized by the sta tute[, a]nd then . . . decide if the least of the acts criminalized includes the use, attempted use, or threatened use of physical force against another person”).
In Beeman v. United States , decided after the District C ourt ruled in this

case, we clarified that a claim based on Descamps would not trigger the one

- year limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on Johnson would. 871 F.3d 1215, 1219

– 20 (11th Cir. 2017) . To distinguish between the two,

we explained that “[a] Johnson claim c ontends that the defendant was sentenced as an armed career criminal under the residual clause, while a Descamps claim asserts that the defendant was incorrectly sentenced . . . under [the other] clause[s].” Id.
We found that a federal prisoner had raise d a timely Johnson claim because he argued that his offense “historically qualified as an ACCA predicate under the ACCA ’ s residual clause,” and because he filed his motion just before the one

- year anniversary of the Johnson decision. Id. at 1220

– 21. C on sider ing the merits of the prisoner’s Johnson claim , we determined that he did not carry his burden of proving that his sentence enhancement was based on the residual clause. Id. at 1225. W e held that, “[t]o prove a Johnson claim, the

Case: 17-12056 Date Filed: 05/30/2018 Page: 4 of 75 movant must show that

— more likely than not

— it was use of the residual clause that led to the sentencing court’s enhancement of his sentence.” Id. at 1221

– 22. Further, “if it is just as likely that the sentencing court relied on the ‘ elements ’ or

‘ enumera ted crimes ’ clauses, solely or as an alternative basis for the enhancement, then the movant has failed to show that his enhancement was due to use of the residual clause.” Id. at 1222. “[C]onclusory” statements lacking support in the record that the dist rict court “must have relied on the residual clause” are not sufficient to meet this burden. Id. at 1224. Similarly, “general observations” that an offense “historically qualified as an ACCA predicate under the ACCA’s residual clause” do not show that a movant was sentenced as an armed career criminal “solely because of the residual clause.” Id. (quotation marks and alterations omitted). With respect to what sort of evidence in the record might demonstrate whether a defendant was s entenced under the residual clause , we explained that “[e] ach case must be judged on its own facts.” Id. at 1231 n.4. Direct evidence in the record could include statements by the sentencing judge that the residual clause was relied up on and was the basis for finding the defendant to be an armed career criminal. Id. Circumstantial evidence could include unobjected to statemen ts in the PSI stating that the enumerated crimes and elements clauses did not apply to

Case: 17-12056 Date Filed: 05/30/2018 Page: 5 of 76 the predicate offense, o r statements by the prosecutor in the sentencing record that those clauses did not apply. Id. Here, the record supports the D istrict C ourt’s denial of Butler’s § 2255 motion. He failed to carry his burden of showing that he was sentenced as an armed car eer criminal solely because of the residual clause. Butler’s motion stated only that the residual clause was a “potential basis” for his ACCA

- enhanced
sentence and conceded that the District Court “likely did not offer a specific finding on which box

— elem ents clause, residual clause, or both

— the Georgia armed robbery conviction fit into.” Nor does he argue on appeal that the District Court relied on the residual clause, but asserts exclusively that his Georgia armed robbery convictions were not violent fe lonies under the elements clause. Moreover, Butler did not present any evidence that the District Court relied on the residual clause when sentencing him. The PSI did not specify on which basis it determined that his prior convictions were violent feloni es, the record does not contain a transcript of his 1992 sentencing hearing, and Butler pointed to no precedential authority holding that his predicate offenses only qualified as violent felonies under the residual clause. Thus, a lthough Butler raised a t imely Johnson

Case: 17-12056 Date Filed: 05/30/2018 Page: 6 of 77 claim, he did not meet his burden to show that he was actua lly sentenced under the ACCA’s residual clause . Accordingly, we affirm. 1
AFFIRMED.

1 In light of the foregoing, it is unnecessary for us to address whether Butler’s prior Georgia convictions for armed robbery remain ACCA

- predic ate violent felonies under the elements clause.

Case: 17-12056 Date Filed: 05/30/2018 Page: 7 of 7