[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12056

Non-Argument Calendar

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D.C. Docket Nos. 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 District Court’s denial of 

his motion to vacate, set aside, or correct sentence, 28 U.S.C. § 2255. Butler 

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argues that his prior Georgia armed robbery convictions were no longer 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 review the court’s factual findings for clear error. 

Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc). When 

appropriate, we 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, 

procedural 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, it 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). 

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The ACCA, which imposes heightened prison sentences 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, 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 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). 

In 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 

Johnson 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 

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approach” for evaluating offense elements. 570 U.S. 254, 260, 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 statute[, 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 Court 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 contends 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 raised 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. 

Considering 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. We held that, “[t]o prove a Johnson claim, the 

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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 

‘enumerated 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 district 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 sentenced 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 upon and was the basis for finding the defendant to be an armed career 

criminal. Id. Circumstantial evidence could include unobjected to statements in 

the PSI stating that the enumerated crimes and elements clauses did not apply to 

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the predicate offense, or statements by the prosecutor in the sentencing record that 

those clauses did not apply. Id.

Here, the record supports the District Court’s denial of Butler’s § 2255 

motion. He failed to carry his burden of showing that he was sentenced as an 

armed career 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—elements 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 felonies 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 felonies, 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, although Butler raised a timely Johnson

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claim, he did not meet his burden to show that he was actually 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-predicate violent felonies under the 

elements clause. 

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