[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 15506 Non

- Argument Calendar

________________________ D.C. Docket No s . 4:16

- cv - 00339

- RH

- CAS , 4:13

- cr - 00031

- RH

- CAS

- 2
MICHAEL LAVERNE HALL, JR., Petitioner

- Appellant,

versus
UNITED STATES OF AMERICA, Respondent

- Appellee.

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

________________________ ( February 4, 2019 ) Before MARCUS , ROSENBAUM and JILL PRYOR , Circuit Judges

. PER CURIAM:

Case: 17-15506 Date Filed: 02/04/2019 Page: 1 of 92 Michael Hall, Jr., appeals the district court’s denial in part of his motion to vacate his 132

- month total sentence under 28 U.S.C. § 2255. The district court determined that, under Johnson v. United States , 135 S. Ct. 2551 (2015), Hall’s Armed Career Criminal Act sentence was unlawful. But the court also determined that Hall’s original term of imprisonment remained appropriate even after Johnson

. 1 The district court granted Hall a certificate of appealability on the issue of whether he is entitled to relief from his sentence based on Johnson . For the reasons that follow, we affirm.
I. Hall pled guilty to drug and firearm charges, including possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). A s part of his § 922(g) charge, t he district court determined that Hall should receive an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §924(e), because of a number of prior state convictions. ACCA provides for a minimum 15

- year prison sentence whenever a § 922(g) defendant has three prior “violent felony” or serious drug convictions. See 18

1 The district court granted relief insofar is it reduced Hall’s term of supervised release from 5 to 3 years. That relief is not at issue in this appeal.

Case: 17-15506 Date Filed: 02/04/2019 Page: 2 of 93 U.S.C. § 924(e). (Otherwise, the maximum sentence for a § 922(g) offense is 10 years.) In anticipation of sentencing, the probation off ice prepared a presentence investigation report (“PSR”), which classified Hall as an a rmed c areer c riminal under ACCA. The ACCA enhancement resulted in a Sentencing Guidelines offense level of 34. The PSR also applied the career offender enhancement unde r U.S.S.G. § 4B1.1 based on Hall’s prior state convictions. The career offender enhancement resulted in an offense level of 37. Because it was highest, the offense level of 37 applied. See U.S.S.G. § 4B1.4(b)(2). With a three

- level reduction for acceptance of responsibility, Hall’s total offense level was 34. He had a criminal history category of VI, which resulted in a guideline s range of 262 to 327 months’ imprisonment. The § 922(g) offense carried a mandator y minimum sentence of 15 years’ imprisonment and the § 924(c) offense carried a mandatory consecutive sentence of 60 months’ imprisonment. With the mandatory 60

- month consecutive term, the total guidelines range for Hall’s sentence was 322 to 387 months’ imprisonment. Neither party objected to the PSR. Before Hall’s sentencing, the government filed a substantial assistance motion in which it asked the district court to consider Hall’s cooperation with the government’s criminal investigation and to reduc e Hall’s guideline s range by thirty percent. At sentencing, the district court heard from several of Hall’s family

Case: 17-15506 Date Filed: 02/04/2019 Page: 3 of 94 members about his difficult upbringing, personal strides towards positive change, and cooperation with the government. The government furth er detailed Hall’s assistance but also emphasized Hall’s lengthy criminal history. The district court considered Hall’s family’s testimony, the government’s arguments and substantial assistance motion, the sentencing factors set forth in 18 U.S.C. § 3553( a), 2 and sentenced Hall to a total of 132 months’ imprisonment, consisting of 108 months on his drug and § 922(g) convictions, to run concurrently with each other, and 24 months on his § 924(c) conviction to run consecutively to the 108 months. Hall did not file a direct appeal. Instead, when the Supreme Court decided Johnson , Hall filed a § 2255 motion to vacate, arguing that he no longer qualified

as an a rmed c areer c riminal under ACCA and was entitled to be resentenced. The district court concluded that, after Johnson , Hall no longer qualified for an ACCA

enhanced sentence. But the court nonetheless denied Hall relief from his term of incarceration, determining that the error in his sentence was harmless. The district court noted that neither the Supreme Court nor this Court had squarely addressed what harmlessness standard might apply on collateral review of a federal sentence. But it also noted that the Supreme C ourt had addressed the standard for collateral

2 The factors delineated in 18 U.S.C. § 3553(a) include “ the nature and circumstances of the offense and the history and characteristics of the defendant ” ; “ the need for the sentence imposed

. . . to afford adequate deterrence to criminal conduct [,] . . . to protect the public from further crimes of the defendant, ” and “ to provide the defendant with neede d educational or vocational training ” ; and “ the kinds of sentences available ” and established sentencing ranges. See 18 U.S.C. § 3553(a)(1)

- (5).

Case: 17-15506 Date Filed: 02/04/2019 Page: 4 of 95 review of a state

- court trial error: the error is harmless unless it “had substantial and injurious effect or influence” on the determination under review. Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (int ernal quotation marks omitted) . The district court concluded that “a parallel standard applies to collateral review of a federal sentencing error.” Doc. 109 at 4. 3
The district court concluded that the Johnson error did not have such an effect on Hall’s sentence. The court explained that i n the absence of the ACCA enhancement, Hall’s guidelines range

— which was determined by his career offender status

— would remain the same. But, the court noted, the Sentencing Guidelines had been amended since Johnson , and even before those amendments “district judges properly could conclude

— and I routinely concluded

— that in light of Johnson an appropriate sentence was below the range calculated based on the

career - offender [guideline].” Id. at 6. For this reason, th e district court stated: “I also would have calculated

. . . the guideline range that would have applied had Mr. Hall not been a career offender. I would have given more weight to that calculation than to the technically applicable career

- offender calcul ation.” Id. at 7. That calculation would have yielded a combined range on all counts of 211 to 248 months’ imprisonment. Given this range, the government’s substantial assistance

3 “Doc. #” refers to the numbered entry on the district court’s docket in case No. 4:13

- cr 31. Case: 17-15506 Date Filed: 02/04/2019 Page: 5 of 96 motion, and the sentencing factors set forth in § 3553(a), the court state d, a sentence of 132 months’ imprisonment was “‘sufficient, but not greater than necessary, to comply with’ the statutory sentencing purposes.” Id. (quoting 1 8 U.S.C. § 3553(a)). Further, given Hall’s extensive criminal history, “a sentence below 132 mon ths would not be sufficient to comply with the statutory sentencing purposes.” Id. at 8. Thus, the district court concluded, the Johnson error did not affect Hall’s sentence, and he was not entitled to relief from his term of imprisonment. This is Hall ’s appeal.
II. “In a [ s ] ection 2255 proceeding, we review legal issues de novo and factual findings under a clear error standard.” United States v. Walker , 198 F.3d 811, 813 (11th Cir. 1999).
III. On appeal, Hall argues that the district court erred in applying the harmlessness standard from Brecht in the context of collateral review of a federal sentence. He argues that a higher standard, “harmless beyond a reasonable doubt,” should apply instead. Chapman v. California , 386 U.S. 18, 24 (1967) (applying this standard to direct review of a state court trial error). We have not specifically addressed in a published opinion what harmlessness standard should apply in this

Case: 17-15506 Date Filed: 02/04/2019 Page: 6 of 97 context. 4 For the reasons th at follow, we need not do so today because the district
court’s judgment must be affirmed even under the more stringent standard set forth
in Chapman

. Although the district court cited the Brecht standard for harmlessness and not the Chapman standard, it is clear from the district court’s order that it would have denied relief under either. That is because the district court expressly found that 132 months’ imprisonment was the appropriate term of incarceration for Hall regardless of his status under ACCA. The court not only found that a 132

- month sentence was “sufficient, but not greater than necessary, to comply with the statutory sentencing purposes” in § 355 3 (a), but also that no lesse r sentence would do because “a sentence below 132 months would not be sufficient to comply with the statutory sentencing purposes.” Doc. 109 at 7

- 8 (internal quotation marks omitted) . We know that the Johnson error was harmless beyond a reasonable doubt because the district court in no uncertain terms found that Hall would receive exactly the same term of incarceration in the absence of the error. Hall argues that we cannot credit the district court’s findings because they were made years after the origi nal sentencing proceeding. We disagree. We

4 Nor have we s pecifically determined that harmless error review applies at all. Here, however, Hall does not meaningfully argue that a Johnson error is structural and unsuited for harmless error review; rather, he disagrees only with the harmless error standard the district court employed

. Case: 17-15506 Date Filed: 02/04/2019 Page: 7 of 98 repeatedly have affirmed the denial of relief from a federal sentence based on a district court’s findings, made on collateral review and without an evidentiary hearing , that the original sentence would still be appropriate

. See, e.g. , Smith v. United States , 565 F.2d 378, 379 (5th Cir. 1978) 5 (affirming the denial of a motion to vacate when the district court found that allegedly incorrect information regarding the defendant on an FBI rap sheet “had nothing wha tever to do with the sentence imposed,” because “[t]his holding means that the sentence would have been the same even if convictions were taken into consideration but later found to be invalid”); Rogers v. United States , 466 F.2d 513, 513

- 14 (5th Cir. 1972 ) (same); see also United States v. Missio , 597 F.2d 60, 61

- 62 (5th Cir. 1979) (“There is no point in remanding the matter to the District Judge in the face of his solemn assertion that the allegedly unconstitutional convictions played no part in, and had no impact on, the sentence imposed.”). Moreover, it is clear from the district court’s order that the court did not simply revisit the calculations in Hall’s original PSR and sentencing proceedings, but rather took into account developments in the law

— in cluding the recent amendments to the Sentencing Guidelines and the court’s own response to Johnson in career offender cases

— in evaluating whether Hall’s sentence remained

5 Decisions of the former Fifth Circuit rendered prior to the close of business on September 30, 1981 are binding on this Court. See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

Case: 17-15506 Date Filed: 02/04/2019 Page: 8 of 99 appropriate after Johnson

. Thus, as in Missio , the district court’s findings make clear that there is no point in remanding this case to the district court considering the court’s careful and unequivocal findings that a 132

- month term of incarceration is appropriate notwithstanding the Johnson error the court recognized.
IV. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. Case: 17-15506 Date Filed: 02/04/2019 Page: 9 of 9