United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Lee Clemons has filed a 28 U.S.C. § 2255 motion
asserting that he was improperly sentenced under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), after he
plead guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). See Presentence
Investigation Report (PSI) ¶ 22 (finding that
Clemons' sentence for violating § 922(g)(1) should
be enhanced pursuant to § 924(e) because of his
"five prior convictions for burglary (violent
felonies)"). Clemons expressed no objection to the PSI,
and the Court adopted the probation officer's factual
findings and conclusions regarding the applicable sentencing
guidelines. Doc. 45 at 4. He took no direct appeal.
Nevertheless, relying upon Johnson v. United States,
576 U.S.__, 135 S.Ct. 2551 (2015), Clemons contends that his
prior burglary convictions no longer qualify as ACCA
predicates and, therefore, that he was improperly given an
enhanced sentence of 188 months under § 924(e), when he
should have received a maximum sentence of no more than 120
months under § 922(g). The Government disputes this
assertion. Doc. 46.
ACCA imposes an enhanced sentence upon § 922(g)
felon-with-a-gun offenders who have at least three prior
convictions "for a violent felony or a serious drug
offense." 18 U.S.C. § 924(e)(1). The ACCA
specifically enumerates the offense of "burglary"
as one of four crimes that qualify as a "violent
felony." 18 U.S.C. §
924(e)(2)(B)(ii).When it enacted the ACCA, however, Congress
referred only to the "generic" version of the four
enumerated crimes. United States v. Gundy, __
F.3d__, 2016 WL 6892164 at *1 (11th Cir. Nov. 23, 2016). The
generic version of burglary that Congress had in mind has
these three elements: "(1) an unlawful or unprivileged
entry into, or remaining in, (2) a building or other
structure, (3) with intent to commit a crime therein."
Id. at * 6. While the Georgia burglary statute
incorporates each of these elements, it expands the
"locational element" of generic burglary to
criminalize not only the unlawful entry into "a building
or other structure" but also entry into vehicles,
railroad cars, watercraft, and aircraft.
Id. By including these alternative locational
elements, the Georgia burglary statute becomes
Gundy, the Eleventh Circuit examined the text of the
Georgia burglary statute (as it existed from 1980 to 2012) in
light of the Supreme Court's decision in Mathis v.
United States, 579 U.S.__, 136 S.Ct. 2243 (2016).
Mathis instructed the lower courts on how to
interpret and apply the ACCA's enumerated crimes
provision when confronted with a state statute (like
Georgia's) that has "disjunctive phrasing, "
thus creating an issue as to whether that statute precisely
aligns with the generic offense Congress intended.
Id. at 2249, 2253. When faced with such a state
statute, the court must decide whether the disjunctive
language creates (1) multiple crimes that are
"divisible" into those alternative
elements that match the generic version of the ACCA
enumerated crime and those that do not, or (2) a single crime
that has an "indivisible" set of elements and
simply lists various alternative factual means of
committing that single offense. Gundy, 2016 WL
6892164 at * 4. An indivisible statute must exactly match the
generic crime or else it cannot count as an ACCA predicate
offense. Id. A divisible statute, on the other hand,
may suffice as an ACCA predicate if it can be determined that
the defendant was convicted of the generic crime rather than
an alternative, non-generic crime. Id.
Mathis, the Gundy court found that
Georgia's burglary statute effectively creates three
distinct crimes, only one of which meets the generic
definition of burglary. Gundy, 2016 6892164 at * 4;
id. at * 8-9 (the Georgia burglary statute has
alternative locational elements, effectively creating several
different crimes, that are "divisible" into the
generic version (which matches the ACCA) and the non-generic
versions (which do not)). Further, because the Georgia
statute has such a divisible structure, it is permissible for
a federal court to use the "modified categorical
approach" in determining whether the defendant's
prior burglary convictions either match, or do not match, the
generic definition of burglary that Congress had in mind.
Gundy at * 9. Under that approach, the court is
allowed to examine a limited class of documents associated
with the defendant's state conviction (e.g., the
indictment, jury instructions, or plea agreement and
colloquy). Id. (quoting Shepard v. United
States, 544 U.S. 13, 26 (2005)).
therefore becomes this Court's task "to determine
which of the alternative elements in Georgia's burglary
statute form the basis of [demons'] prior burglary
convictions and whether those elements match the generic
definition of burglary." Gundy, 2016 WL 6892164
at * 9. An examination of the Shepard documents from
demons' prior burglary convictions - furnished by the
government as part of its response, doc. 46 at Exhs. A-C -
establishes that his prior Georgia burglary convictions are
generic burglaries and therefore qualify as violent felonies
under the ACCA. In each instance, the state prosecutor
charged, and Clemons admitted through a guilty plea, that he
entered a specific "building" without authority and
with the intent to commit a theft therein. Doc. 46-1 at 2
(1984 Jeff Davis County indictment charging defendant with a
burglary of "Hazelhurst Feed and Seed Store"), 4-5
(guilty plea); doc. 46-2 at 8 (1992 Coffee County indictment
charging defendant with the burglary of "The Streat
Corporation Building a/k/a The Streat's Garment Factory
Building"), 4 (guilty plea); doc. 46-3 at 2 (1994
Appling County indictment charging defendant with burglary of
"Lewis' Full Service"), 7-8 (guilty plea). The
Georgia burglary statute expressly criminalizes the wrongful
entry of a home or business for such an improper purpose.
See note 3 supra.
the Shepard documents furnished by the government
establish that in each Georgia burglary case Clemons entered
a guilty plea admitting that he had entered a specific
building without permission, and had done so with the intent
to commit a theft therein, Clemons' three prior Georgia
burglary convictions all meet the elements of generic
burglary. Gundy, 2016 WL 6892164 at * 6. They,
therefore, qualify as violent felonies under the ACCA's
enumerated crimes clause. With such a criminal record,
Clemons was properly given an enhanced sentence under 18
U.S.C. § 924(e)(1). His § 2255 motion is without
merit and should be DENIED.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
Doc. 43 (§ 2255 motion);
see doc. 1 (indictment); doc. 28 (guilty plea); doc.
32 (plea agreement); doc. 34 (judgment); doc. 39 (order
reducing sentence from 188 months to 152 months pursuant to
Fed. R. Crim. P. 35(b)). The Court is citing to the criminal
docket in CR408-225, and all page numbers are those imprinted
by its CM/ECF docketing software.
The Government concedes that
defendant's two prior Alabama convictions for
"third-degree burglary" (referenced in the PSI at
¶¶ 27, 33) do not meet the ACCA's definition of
"violent felony" and therefore cannot serve as
predicate convictions for sentence-enhancement purposes. Doc.
46 at 3. It contends, however, that each of Clemons'
prior Georgia burglary convictions qualifies as a violent
felony under the ACCA's enumerated crimes provision and
thus that Clemons was properly sentenced as an armed career
criminal. Id. at 4. See PSI ¶¶
26, 35, 36 (referencing Clemons' three Georgia burglary
As Gundy notes, from 1980
until July 1, 2012, the Georgia burglary statute provided as