Jerome Julius Weeks v. United States ( 2018 )


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  •              Case: 17-10049      Date Filed: 05/01/2018   Page: 1 of 5
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-10049
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 1:16-cv-02092-TWT,
    1:08-cr-00393-TWT-RGV-1
    JEROME JULIUS WEEKS,
    a.k.a. Clarence Royden Weekes,
    a.k.a. Jerome J. Weekes,
    a.k.a. Jerome Week,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (May 1, 2018)
    Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    Case: 17-10049     Date Filed: 05/01/2018    Page: 2 of 5
    Jerome Weeks, a federal prisoner, appeals the dismissal of his successive
    motion to vacate his sentence. 28 U.S.C. § 2255. Weeks argued that, in the wake of
    Johnson v. United States, 
    135 S. Ct. 2551
    (2015), he lacked sufficient predicate
    offenses to have his sentence enhanced under the Armed Career Criminal Act. The
    district court ruled that Weeks failed to “meet his burden of showing that he was
    sentenced under the residual clause of the [Act]” because “[t]wo of his prior
    convictions qualified as drug trafficking offenses” and “[a]t the time of sentencing,
    [his] assault and battery and resisting arrest convictions qualified under the
    elements test as violent felonies.” We affirm.
    Weeks challenged his sentence of 235 months of imprisonment for
    possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1), and for twice
    making false statements with regard to a firearms license, 
    id. § 924(a)(1)(A).
    The
    sentencing court classified Weeks as an armed career criminal based on his prior
    convictions in Massachusetts courts in 1999 for assault and battery, in 2000 for
    distribution of cocaine, in 2001 for possessing with intent to distribute cocaine, and
    in 2003 for resisting arrest. See 
    id. § 924(c).
    The sentencing court rejected Weeks’s
    arguments that his convictions for assault and battery, in which the charging
    document stated that he “assaulted and beat the victim,” and for resisting arrest did
    not count as predicate offenses. See 
    id. § 924(e)(2)(B).
    After the government
    submitted copies of caselaw in which the First Circuit held that both assault and
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    battery and resisting arrest categorically qualified as violent felonies, the
    sentencing court ruled, “In the absence of extremely persuasive authority, I think
    that I should follow the [First] Circuit authority in this area which as I understand it
    would count all of those convictions for the armed career criminal enhancement.”
    We affirmed Weeks’s convictions and sentence on appeal. United States v.
    Weeks, 442 F. App’x 447 (11th Cir. 2011). We concluded that Weeks’s offense of
    resisting arrest, which could have been committed in two ways, qualified as a
    violent felony. 
    Id. at 455–56.
    We stated that resisting arrest satisfied the elements
    clause if it involved “using or threatening to use physical force or violence,” Mass.
    Gen. Laws ch. 268, § 32B(a)(1), and the offense satisfied the residual clause if it
    involved “using any other means which creates a substantial risk of causing bodily
    injury, 
    id. § 32B(a)(2).
    Weeks, 442 F. App’x at 455–56. We declined to address
    whether Weeks’s offense of assault and battery under Massachusetts law qualified
    as a violent felony “[b]ecause we [had] already determined that Weeks [had] two
    prior convictions for serious drug offenses and one prior conviction for a violent
    felony.” 
    Id. at 456.
    We review the denial of a motion to vacate de novo and review related
    findings of fact for clear error. Castillo v. United States, 
    200 F.3d 735
    , 736 (11th
    Cir. 2000). To obtain relief based on Johnson, “a movant must establish that his
    sentence enhancement turned on the validity of the residual clause.” Beeman v.
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    United States, 
    871 F.3d 1215
    , 1221 (11th Cir. 2017) (internal quotation marks
    omitted and alteration adopted). The movant can satisfy his burden of proof by
    establishing that “the sentencing court relied solely on the residual clause, as
    opposed to also or solely relying on either the enumerated offenses clause or
    elements clause . . . to qualify a prior conviction as a violent felony” or that “there
    were not at least three other prior convictions that could have qualified under either
    of those two clauses as a violent felony, or as a serious drug offense.” 
    Id. The district
    court correctly dismissed Weeks’s motion to vacate. Weeks’s
    argument that he is entitled to relief under Johnson fails in the absence of any
    evidence “to 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 1222.
    The
    record of Weeks’s sentencing hearing supports the finding of the district court that
    the sentencing court relied on the elements clause to classify Weeks’s prior
    offenses as violent felonies. Because “the evidence does not clearly explain what
    happened . . . the party with the burden[, Weeks,] loses.” 
    Id. at 1225
    (quoting
    Romine v. Head, 
    253 F.3d 1349
    , 1357 (11th Cir. 2001)).
    Weeks argues that our decision on direct appeal satisfies “his burden of
    showing that he was ‘sentenced using the residual clause,’” but we disagree. On
    appeal, we ruled that Weeks’s conviction for resisting arrest could qualify under
    either the elements clause or the residual clause. That ruling does not make it
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    “more likely than not” that Weeks’s enhancement was based on the residual clause
    as opposed to the elements clause. See 
    id. at 1222.
    We AFFIRM the dismissal of Weeks’s successive motion to vacate.
    5
    

Document Info

Docket Number: 17-10049

Filed Date: 5/1/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021