Pavis Levar Gray v. United States ( 2019 )


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  •                                                                [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-12770
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 6:16-cv-01167-GAP-GJK,
    6:06-cr-00165-GAP-DCI-2
    PAVIS LEVAR GRAY,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (December 5, 2019)
    Before MARCUS, FAY and HULL, Circuit Judges.
    PER CURIAM:
    Pavis Levar Gray, a federal prisoner, appeals the district court’s denial of his
    28 U.S.C. § 2255 motion to vacate, in which he challenged an Armed Career
    Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), enhancement to his total sentence
    based on being sentenced under the now-unconstitutional residual clause in 18
    U.S.C. § 924(e). We affirm.
    I. BACKGROUND
    Gray pled guilty to conspiracy to possess with intent to distribute five grams
    or more of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii), 846 (count one);
    possession with intent to distribute five grams or more of cocaine, in violation of
    21 U.S.C. § 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2 (count two); possession of a
    firearm and ammunition by a convicted felon,1 in violation of 18 U.S.C. §§
    922(g)(1), 924(a)(2), (e)(1) (count three); and possession with intent to distribute
    five grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii)
    (count four).
    The presentence investigation report (“PSI”) noted that Gray’s ACCA
    charge was based on “numerous felonies” but did not specify which ones were
    considered. In determining the total offense level, the PSI applied the career
    offender enhancement using Gray’s three convictions for battery on a detention
    center staff member, as well as single convictions for aggravated fleeing and
    1
    In the indictment, the government asserted that Gray was a felon in possession of a firearm
    based on prior convictions in five Florida state criminal cases: three convictions for battery upon
    a staff member of a detention center or facility, convictions for possessing cocaine and resisting
    an officer with violence, and a conviction for aggravated fleeing and eluding.
    2
    eluding, possession of cannabis with intent to sell, and sale of cocaine. The PSI
    described Gray’s criminal history and noted his other convictions, including a 1999
    conviction for “Resisting Arrest Without Violence,” in addition to the previously
    noted convictions. In paragraph 56, the PSI indicated that Gray was convicted of
    “Possession of Cannabis With Intent to Sell” and “Possession of Less Than 20
    Grams of Cannabis”; he was sentenced to 10 years of imprisonment and 185 days
    of imprisonment, respectively. The PSI listed the offense’s state court case
    number and the narrative indicated that “[c]ocaine and marijuana were found
    inside the vehicle.” The PSI determined that Gray’s total offense level was 31, his
    criminal history category was VI, and his guideline range was 188-235 months of
    imprisonment, with a statutory minimum sentence of 15 years of imprisonment.
    At sentencing, Gray did not object to the PSI’s “factual content,” nor did he
    object when the district court asked him if he objected to “the criminal history
    points as they’re reflected in the [PSI]” or the career offender enhancement under
    the Guidelines. The government clarified that the PSI had a typographical error
    indicating that Gray was convicted of resisting arrest without violence when he
    actually was convicted of resisting arrest with violence. The government did not
    object to paragraph 56.
    The court corrected the PSI, as requested, and Gray did not object. He also
    did not object when the government introduced certified copies of his three
    3
    convictions for battery of a detention center officer and his single convictions for
    resisting arrest with violence and aggravated fleeing and eluding. The district
    court then sentenced him to a total of 188 months of imprisonment followed by 4
    years of supervised release. Gray appealed, raising an issue not relevant to the
    present appeal; we affirmed. United States v. Gray, 284 F. App’x 775 (11th Cir.
    2008).
    In 2015, the Supreme Court held that the ACCA’s residual clause, 18 U.S.C.
    § 924(e)(2)(B)(ii), was unconstitutionally vague. Johnson v. United States, 135 S.
    Ct. 2551, 2563 (2015). This prompted Gray to file the instant 28 U.S.C. § 2255
    motion in 2016. Gray argued that his ACCA-enhanced sentence for count four
    was unconstitutional because, without the residual clause, he did not have three
    qualifying convictions. He argued that the government, at his 2007 sentencing,
    waived reliance on his conviction for cocaine possession with intent to sell because
    the PSI mistakenly labeled it as a cannabis conviction, which the government
    “could not and did not rely on . . . as an ACCA predicate at sentencing given the
    [PSI] error.” He argued that the government’s failure to state its reliance on prior
    convictions as ACCA predicates effectively waived the issue.
    The district court noted that neither the parties nor the PSI identified which
    convictions were used for the ACCA enhancement at sentencing in 2007. It then
    determined that Gray’s convictions for resisting arrest with violence and selling
    4
    cocaine were both ACCA-predicate offenses. Additionally, it determined that the
    government did not waive reliance on the mislabeled conviction because the
    government did not explicitly disavow reliance on any convictions, there was no
    discussion of the ACCA at sentencing, and Gray did not object to the
    government’s use of his prior convictions or application of the ACCA. Citing
    Beeman v. United States, 
    871 F.3d 1215
    (11th Cir. 2017), the court concluded that
    Gray was not entitled to resentencing because he still had three qualifying
    convictions for the ACCA enhancement, and nothing indicated that his count four
    sentence was based solely on the residual clause. Thus, the court denied his
    motion.
    Gray appealed, and a member of this Court granted him a certificate of
    appealability on the issue of “whether the government waived reliance on Mr.
    Gray’s possession with intent to distribute cannabis conviction as an ACCA
    predicate.” We stayed Gray’s appeal pending issuance of a decision in Tribue v.
    United States, 
    929 F.3d 1326
    (11th Cir. 2019); however, Tribue has since been
    decided.
    On appeal, Gray argues that the government waived the ability to correct and
    rely on one of his prior convictions as an ACCA predicate offense because it was
    mislabeled as a non-qualifying offense in his PSI and the government did not
    object to and correct the error despite doing so for a different conviction.
    5
    II. DISCUSSION
    When reviewing the district court’s denial of a § 2255 motion, we review
    findings of fact for clear error and questions of law de novo. Rhode v. United
    States, 
    583 F.3d 1289
    , 1290 (11th Cir. 2009). Under the prior precedent rule, we
    are bound by our prior decisions unless and until the Supreme Court or this Court
    sitting en banc overrule them. United States v. Brown, 
    342 F.3d 1245
    , 1246 (11th
    Cir. 2003). We may affirm for any reason supported by the record, even if not
    relied upon by the district court. United States v. Gandy, 
    710 F.3d 1234
    , 1238
    (11th Cir. 2013).
    A federal prisoner may move the sentencing court to vacate his sentence
    under 28 U.S.C. § 2255 on the ground that, inter alia, his sentence was imposed in
    violation of federal law or the Constitution or exceeds the maximum time allowed
    by law. 28 U.S.C. § 2255(a). However, like any other § 2255 movant, a § 2255
    claimant relying on Johnson must prove his claim. 
    Beeman, 871 F.3d at 1221-22
    (citing “a long line of authority holding that a § 2255 movant ‘bears the burden to
    prove the claims in his § 2255 motion’”).
    To obtain relief based on Johnson, a post-conviction movant must prove that
    his sentence “enhancement was due to use of the residual clause.” 
    Id. at 1222.
    “In
    other words, he must show that the clause actually adversely affected the sentence
    he received.” 
    Id. at 1221.
    A Johnson § 2255 movant must prove two things: (1)
    6
    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,” and (2)
    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 ACCA
    caps a federal prison sentence for possessing a firearm as a felon
    under 18 U.S.C. § 922(g)(1) at 10 years, except when the person being sentenced
    has three or more prior convictions for violent felonies or serious drug offenses.
    18 U.S.C. § 924(a)(2), (e)(1). The ACCA requires a minimum prison sentence of
    15 years for someone who has 3 prior convictions for a “violent felony or a serious
    drug offense, or both.” 
    Id. § 924(e)(1).
    The ACCA defines a “serious drug
    offense” as “an offense under State law,” punishable by at least 10 years of
    imprisonment, “involving manufacturing, distributing, or possessing with intent to
    manufacture or distribute, a controlled substance.” 
    Id. § 924(e)(2)(A)(ii).
    Florida law punishes the sale, manufacture, delivery, or possession with
    intent to sell cocaine as a second-degree felony with a sentence up to 15 years of
    imprisonment. Fla. Stat. §§ 775.082(3)(d), 893.03(2)(a), 893.13(1)(a)1. It
    punishes the sale, manufacture, delivery, or possession with intent to sell cannabis
    as a third-degree felony with a sentence up to 5 years of imprisonment. 
    Id. §§ 775.082(3)(e),
    893.03(1)(c), 893.13(1)(a)2. Thus, a Florida conviction for
    7
    possession with intent to sell cocaine is a serious drug offense under the ACCA,
    while possession with intent to sell cannabis is not. See 18 U.S.C.
    § 924(e)(2)(A)(ii); see also United States v. Smith, 
    775 F.3d 1262
    , 1268 (11th Cir.
    2014).
    In Tribue, we rejected the defendant’s arguments that the government
    effectively waived the ability to rely on additional convictions to support his
    ACCA enhanced sentence on collateral review when the PSI previously identified
    three convictions for the enhancement, one of which no longer qualified. 
    Tribue, 929 F.3d at 1330
    , 1332. The defendant argued, in part, that the government could
    not use a conviction that was mislabeled in the PSI because the district court
    adopted the PSI without changing the error. 
    Id. at 1330.
    We determined that the
    defendant had not objected to his ACCA enhancement at sentencing, and that that
    reason alone was sufficient to affirm. 
    Id. at 1332.
    We further determined that there was no requirement for the government to
    “prospectively address whether each and every conviction listed in the criminal
    history section of a PSI is an ACCA predicate in order to guard against potential
    future changes in the law and avoid later claims that it has waived use of those
    convictions as qualifying ACCA predicates.” 
    Id. We concluded
    that, “where there
    is no objection by the defendant to the three convictions identified as ACCA
    predicates, the government bears no burden to argue or prove alternative grounds
    8
    to support the ACCA enhancement” because neither party is expected to have
    anticipated Johnson’s invalidation of the residual clause. 
    Id. In doing
    so, we noted
    that the government could show, at the § 2255 hearing, that a third conviction
    qualified under the ACCA even though the conviction was mislabeled in the PSI as
    a non-qualifying offense. 
    Id. at 1330
    & n.5. Because the PSI had the correct case
    number for the conviction, the government could correct the mislabeled conviction
    and use it to support the ACCA enhancement. 
    Id. Here, the
    government did not waive reliance on Gray’s mislabeled
    conviction. As noted in Tribue, we can affirm based on his failure to object to
    either his ACCA enhancement or the use of any of his convictions at sentencing.
    See 
    id. at 1332.
    We also note that Gray’s mislabeled conviction was a serious drug offense
    under the ACCA and the government did not have to object to it in this case to use
    in on collateral review. This is especially true here where the PSI had the correct
    case file number, the narrative indicated that cocaine was also found in the vehicle,
    and the sentence imposed exceeded the statutory maximum for the charge as
    written for cannabis. See 
    id. at 1330
    n.5. Although Tribue was decided after the
    parties filed their appellate briefs, we may affirm on any ground supported by the
    record, and Tribue is binding precedent that we must follow. See 
    Gandy, 710 F.3d at 1238
    ; 
    Brown, 342 F.3d at 1246
    .
    9
    AFFIRMED.
    10
    

Document Info

Docket Number: 18-12770

Filed Date: 12/5/2019

Precedential Status: Non-Precedential

Modified Date: 12/5/2019