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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13028
Non-Argument Calendar
________________________
D.C. Docket Nos. 4:19-cv-00454-RH-MAF,
4:96-cr-00052-RH-MAF-1
JONATHAN ARNESS WESTON,
DENNIS DWAYNE JOHNSON,
Petitioners-Appellants,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Florida
________________________
(April 13, 2021)
Before WILSON, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Jonathan Arness Weston and Dennis Dwayne Johnson carried out an armed
kidnapping in 1996. Their indictment charged them with committing two crimes:
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kidnapping in violation of
18 U.S.C. § 1201(a)(1) and using and carrying a firearm
during and in relation to a “crime of violence”—the kidnapping—in violation of
18
U.S.C. § 924(c). Section 924(c)(3) defines a “crime of violence” as a felony
offense that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” or that “by its nature”
involves a substantial risk that physical force may be used.
18 U.S.C.
§ 924(c)(3)(A)–(B). The former is referred to as the “elements clause,” the latter
the “residual clause.”
A jury convicted Weston and Johnson on both counts, and this Circuit
affirmed their convictions and sentences in 1999. They then filed motions to
reduce their sentences because of amendments to the U.S. Sentencing Guidelines
and motions for collateral relief under
28 U.S.C. § 2255. The court denied their
motions. They tried again a few years later, but their motions were dismissed
because they had not received authorization to file successive § 2255 motions.
In 2019, the Supreme Court held in United States v. Davis that § 924(c)’s
“residual clause,” like the residual clause in the Armed Career Criminal Act, is
unconstitutionally vague. See
139 S. Ct. 2319 (2019). So after Davis, a conviction
can only qualify as a “crime of violence” under § 924(c) if it meets the criteria of
the “elements clause.”
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After receiving permission from this Court, Weston and Johnson filed
successive § 2255 motions based on Davis. They argued that they were convicted
and sentenced under the now-invalid residual clause of § 924(c). The district court
denied their motions. It found that procedural default did not preclude Weston and
Johnson’s successive § 2255 petitions because Davis had issued “a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” But it rejected their claims on the merits,
holding that they had not shown that the residual clause “made a difference” in
their convictions. The court granted a certificate of appealability on the issue of
whether Weston and Johnson were entitled to relief under Davis. This appeal
followed.
I.
When reviewing a district court’s denial of a § 2255 motion, we review
questions of law de novo and factual findings for clear error. Lynn v. United
States,
365 F.3d 1225, 1232 (11th Cir. 2004).
II.
Relief is available on a second or successive § 2255 motion only on narrow
grounds set out in the statute. One such ground is a “new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.”
28 U.S.C. § 2255(h)(2). Davis is such a case—it
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announced a new constitutional rule and has been held to have retroactive
application. Welch v. United States,
136 S. Ct. 1257, 1268 (2016); In re
Hammoud,
931 F.3d 1032, 1037–39 (11th Cir. 2019).1
The government argues that Beeman v. United States applies to these claims;
Weston and Johnson disagree. See
871 F.3d 1215 (11th Cir. 2017). In Beeman,
we held that a § 2255 movant must prove that it was “more likely than not” that
ACCA’s invalid residual clause led the sentencing court to impose a sentence
enhancement. Id. at 1222. The government argues that Weston and Johnson failed
to meet Beeman’s burden. Weston and Johnson push back, contending that it is
enough to show that they may have been sentenced under the residual clause given
the standard articulated in Stromberg v. California,
283 U.S. 359 (1931). They say
that it is unclear whether their convictions rested on the residual clause because
their indictment did not specify a subsection and caselaw from the time of
sentencing concerning the federal kidnapping statute did not require the use of
physical force as described in the elements clause.
A recent case of ours clarifies what standard to use in this context. In
Granda v. United States, we held that collateral relief for a Davis claim is proper
1
We do not consider whether Weston and Johnson procedurally defaulted their Davis claims.
The government does not challenge the district court’s decision that they overcame procedural
default. And because we conclude that Weston and Johnson cannot prevail on the merits,
procedural default would have no impact on their case.
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only if the court has “grave doubt” about whether a trial error had “substantial and
injurious effect or influence” in determining the verdict.
990 F.3d 1272, 1292
(11th Cir. 2021) (quoting Davis v. Ayala,
576 U.S. 257, 267–68 (2015)). There
must be more than a reasonable possibility that the error was harmful; put
differently, we may order relief “only if the error ‘resulted in actual prejudice’” to
the petitioner.
Id. (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). So
it is not enough to show that the court may have relied on the now-invalid residual
clause; Westin and Johnson must show a “substantial likelihood” that the court did
rely only on that subsection. Id. at 1288. We must look to the record to evaluate
whether the court relied only on the invalid subsection.2 Id. at 1290.
This record does not provoke grave doubt about whether Weston and
Johnson were convicted and sentenced based only on the residual clause. The
indictment and presentence investigation reports do not indicate under which
subsection of 924(c) their kidnapping offenses were considered “crimes of
violence,” and the record leaves open the possibility that the district court relied on
the still-valid elements clause. Weston and Johnson’s indictment charged that they
2
In our recent decision in Granda, this Court rejected several arguments that Weston and
Johnson make on appeal. We clarified the harmless error standard that applies to Davis claims:
namely, that relief is only proper if the error “substantially influenced the jury’s decision” and
resulted in “actual prejudice” to the petitioner. Granda, 990 F.3d at 1292–93; see Brecht,
507
U.S. at 637. We also confirmed that Stromberg error is subject to the Brecht harmless error
standard. Granda, 990 F.3d at 1294. The harmlessness inquiry is “more searching on collateral
review than on direct review.” Id. at 1295.
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“did knowingly, willfully, and unlawfully seize, kidnap, abduct, carry away and
hold for ransom, reward, for their benefit and otherwise, a 24-year-old woman”
and that “during and in relation to a crime of violence”—the kidnapping—they
“did knowingly use and carry a firearm” in violation of § 924(c). The court
defined kidnapping as “forcibly and unlawfully” holding, keeping, detaining, or
confining a person against his or her will. And their indictment did not include as
elements “inveiglement” or “decoy”—two elements of the statutory crime that this
Court later held do not necessarily involve physical force. See United States v.
Gillis,
938 F.3d 1181, 1206–10 (11th Cir. 2019). So the district court could have
reasonably treated their charged crimes as involving physical force: the charges
required that they seize, forcibly hold and detain, abduct, and carry away their
victim. This means that the district court may have relied on the elements clause
of § 924(c), not just the residual clause, in determining that their offenses were
crimes of violence.
What’s more, in denying their § 2255 motions, the district court (which was
the same court that sentenced the defendants) stated that it had treated their
offenses as crimes of violence based on § 924(c) “as a whole, including the
element clause,” because it “seemed obvious at that time” that kidnapping was a
crime of violence. The court said that even if there had not been a § 924(c)
residual clause, “the indictment, jury instructions, and evidence would have been
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precisely the same as they were. The sentences would have been precisely the
same as they were.” These statements show that the district court did not rely
solely on the invalidated residual clause, so any error was harmless. Granda, 990
F.3d at 1293.
Weston and Johnson point out that we held in a later case, United States v.
Gillis, that kidnapping is categorically not a crime of violence under § 924(c)’s
elements clause. 938 F.3d at 1203–10. But a decision issued after sentencing casts
“very little light” on whether the defendant was sentenced solely under the residual
clause. Beeman, 871 F.3d at 1224 n.5. That is because, in cases where the
predicate offense was later held not to be a crime of violence under the elements
clause, the district court may still have relied on the elements clause under the
mistaken belief that the predicate qualified. Id. And that seems to be the case
here. Weston and Johnson’s indictment left out the two means of kidnapping we
identified in Gillis as not involving physical force: inveiglement and decoy. See
Gillis, 938 F.3d at 1207–08. And no precedent at the time would have precluded
the sentencing court from deciding that the charged offense qualified as a crime of
violence under the elements clause. 3 So taken together, this record does not show
3
Weston and Johnson argue that two cases decided before their convictions—Chatwin v. United
States,
326 U.S. 455 (1946), and United States v. Boone,
959 F.2d 1550 (11th Cir. 1992)—
showed that federal kidnapping does not qualify as a “crime of violence” under 924(c)’s
elements clause. But both of those cases involved kidnapping by “inveiglement” or “decoy”—
two elements not included in this charged crime. And this Circuit’s 2019 decision in Gillis was
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a “substantial likelihood” that the sentencing court did not rely in whole or in part
on the elements clause when sentencing Weston and Johnson. See Granda, 990
F.3d at 1288.
* * *
Given the record and the sentencing court’s statements, we cannot say that
Weston and Johnson’s kidnapping offenses were treated as “crimes of violence”
based solely on the invalidated residual clause of § 924(c). We therefore affirm the
district court’s denial of their § 2255 motions.
AFFIRMED.
the first time we squarely addressed whether federal kidnapping could qualify under § 924(c)’s
elements clause. See 938 F.3d at 1203–10.
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