JEROME JULIUS WEEKS, a.k.a. Clarence Royden Weekes, etc., Petitioner-Appellant,
UNITED STATES OF AMERICA, Respondent-Appellee.
from the United States District Court for the Northern
District of Georgia, Nos. 1:16-cv-02092-TWT,
TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.
ANDERSON, CIRCUIT JUDGE.
appeal presents a unique factual and legal situation. As set
forth below, it involves a successive motion under 28 U.S.C.
§ 2255, with respect to which we granted Mr. Jerome
Weeks leave to file. We concluded he had made a prima facie
showing that his prior convictions for resisting arrest and
assault and battery- which had served as predicates for the
enhancement of his federal sentence under the Armed Career
Criminal Act (the "ACCA")-no longer qualified as
violent felonies under the ACCA in light of the ruling of the
Supreme Court in Samuel Johnson v. United
States that the ACCA's residual clause is
unconstitutionally vague. Section 2255 movants raising
Samuel Johnson claims "must show that- more
likely than not-it was use of the residual clause that led to
the sentencing court's enhancement of [their]
sentence." Beeman v. United States, 871 F.3d
1215, 1222 (11th Cir. 2017), cert. denied, 139 S.Ct.
1168 (2019). The necessary showing, according to
Beeman, is that the residual clause was the sole
basis for the enhancement. Id.
appeal is unique because, after sentencing but during the
pendency of Mr. Weeks's direct appeal, there were
significant developments relevant to the issue of whether the
residual clause was the sole basis for his ACCA enhancement.
Thus, we must decide, when a claimant challenged his ACCA
enhancement on direct appeal, whether the relevant time frame
for this inquiry is limited to the sentencing hearing or if
it extends through the claimant's direct appeal. We hold
that, where a claimant challenged his ACCA enhancement on
direct appeal, the relevant time frame to consider when
determining whether the residual clause solely caused the
enhancement of a claimant's sentence extends through
direct appeal. Because Mr. Weeks has carried his burden of
showing that it is more likely than not that the residual
clause, and only the residual clause, caused his sentence to
be enhanced and that he no longer has three ACCA predicate
convictions, we reverse the district court's order
denying his § 2255 motion and remand for resentencing.
Conviction and Sentencing
stipulated bench trial, Mr. Weeks was found guilty of one
count of being a felon in possession of firearms in violation
of 18 U.S.C. § 922(g)(1), (e)(1) and two counts of
making false statements in the course of purchasing firearms
in violation of 18 U.S.C. § 922(g)(2) and §
924(a)(2). The ACCA provides for a fifteen-year mandatory
minimum sentence for violations of § 922(g) by a
defendant who has three or more prior convictions for a
"violent felony" or "serious drug
offense." Id. § 924(e)(1). Prior to Mr.
Weeks's sentencing hearing, United States Probation
prepared a presentence investigation report ("PSR")
recommending that, because he had convictions for two prior
violent felonies and two serious drug offenses, he qualified
for an ACCA-enhanced sentence. Relevant for purposes of this
appeal, the ACCA defines a "violent felony" as
"any crime punishable by imprisonment for a term
exceeding one year" that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). "Subsection (i) is called
the 'elements clause.' The first part of subsection
(ii) is known as the 'enumerated offenses clause,'
and the second is the 'residual clause.'"
United States v. Pickett, 916 F.3d 960, 962 (11th
relied on four of Mr. Weeks's prior convictions from
Massachusetts in recommending that he qualified for an
ACCA-enhanced sentence: (1) assault and battery, (2)
resisting arrest, (3) distributing cocaine, and (4)
possession with intent to distribute cocaine. Mr. Weeks
objected to this recommended sentencing enhancement,
contending that these prior convictions did not qualify as
violent felonies. The Government agreed with Probation's
recommendation. As to Mr. Weeks's prior assault and
battery conviction, the PSR stated that "[t]he criminal
complaint in this instance alleged that the defendant
assaulted and beat the victim." The Government did not
introduce any Shepard documents and the relevant
portions of the PSR did not contain any further information
derived from Shepard documents.
Resisting Arrest Prior Conviction at Sentencing
sentencing hearing, the district court heard arguments from
the parties as to whether these prior convictions qualified
as violent felonies under the ACCA. At the time of Mr.
Weeks's resisting arrest offense, Massachusetts law
(a) A person commits the crime of resisting arrest if he
knowingly prevents or attempts to prevent a police officer,
acting under color of his official authority, from effecting
an arrest of the actor or another, by:
(1) using or threatening to use physical force or violence
against the police officer or another; or
(2) using any other means which creates a substantial risk of
causing bodily injury to such police officer or another.
Mass. Gen. Laws ch. 268, § 32B(a). In his sentencing
memorandum and at the sentencing hearing, Mr. Weeks argued
that while § 32B(a)(1) qualified as a violent felony,
§ 32B(a)(2) did not. The Government argued that both
subsections qualified, pointing to First Circuit case law,
United States v. Almenas, which held that
Massachusetts resisting arrest qualified as a crime of
violence under U.S.S.G. § 4B1.2 because the first method
of violating the statute "fits squarely" within the
elements clause while the second method "falls safely
within the residual clause." 553 F.3d 29, 32-36 (1st
Assault and Battery Prior Conviction at Sentencing
time of Mr. Weeks's assault and battery offense,
Massachusetts law provided:
Whoever commits an assault or an assault and battery upon
another shall be punished by imprisonment for not more than
two and one half years in a house of correction or by a fine
of not more than five hundred dollars.
Mass. Gen. Laws ch. 265, § 13A (amended 2002). The
offense is not defined by statute but instead finds its
definitions in Massachusetts common law. See
Commonwealth v. Burke, 390 Mass. 480, 481-82, 457
N.E.2d 622, 623-24 (1983). Assault and battery under §
13A encompasses three common-law crimes: harmful battery,
reckless battery, and offensive battery. See Commonwealth
v. Eberhart, 461 Mass. 809, 818, 965 N.E.2d 791, 798
(2012); Burke, 390 Mass. at 482, 457 N.E.2d at 624;
Commonwealth v. Boyd, 73 Mass.App.Ct. 190, 194-95,
897 N.E.2d 71, 76 (2008). Harmful battery is "[a]ny
touching 'with such violence that bodily harm is likely
to result.'" See Burke, 390 Mass. at 482,
457 N.E.2d at 624. Reckless battery is a "wilful, wanton
and reckless act which results in personal injury to
another." See Commonwealth v. Welch, 16
Mass.App.Ct. 271, 274, 450 N.E.2d 1100, 1102 (1983). Finally,
offensive battery is when "the defendant, without
justification or excuse, intentionally touche[s] the victim,
and that . . . touching, however slight, occur[s] without the
victim's consent." See Commonwealth v.
Hartnett, 72 Mass.App.Ct. 467, 476, 892 N.E.2d 805, 814
(2008); accord Eberhart, 461 Mass. at 818, 965
N.E.2d at 798.
sentencing memorandum and at the sentencing hearing, Mr.
Weeks argued that the charging language used in the criminal
complaint for his prior assault and battery
conviction-"defendant assaulted and beat the
victim"-was boilerplate language used in charging
assault and battery offenses regardless of the type of
battery that occurred. He contended that his charging document
could not support an inference that he committed a violent
felony because it encompassed offensive battery, which is
nonviolent. Mr. Weeks also pointed to the certiorari petition
that had been granted from the Eleventh Circuit's
decision in Curtis Johnson, which was poised to
answer whether nonharmful touching could qualify as a violent
felony under the ACCA. See United States v. Curtis
Johnson, 528 F.3d 1318 (11th Cir. 2008), cert.
granted, 129 S.Ct. 1315 (2009).
Government argued in its sentencing memorandum and at the
sentencing hearing that the "assaulted and beat"
charging language indicated that Mr. Weeks was convicted of
harmful battery, as previously held by the First Circuit.
See United States v. Rivera, 562 F.3d 1, 1 (1st Cir.
2009) ("[T]he 'did assault and beat' charging
language suffices to identify the 'harmful' brand of
assault and battery, qualifying the offense as a violent
felony under the ACCA."), abrogated by United States
v. Holloway, 630 F.3d 252 (1st Cir. 2011).
announcing its Sentencing Guideline calculations, the
sentencing court stated:
I'm going to overrule the Defendant's objection to
paragraph 45 of the Pre-Sentence Report. I think that the
Defendant does qualify for the armed career criminal
enhancement based on the two drug charges for distributing
cocaine and possession with the intent to distribute cocaine
and for the assault and battery charge and for the resisting
arrest charge. 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
direct appeal, Mr. Weeks argued, among other things, that the
district court erred in sentencing him as an armed career
criminal. See United States v. Weeks, 442 Fed.Appx.
447, 454 (11th Cir. 2011).
Resisting Arrest Prior Conviction on Direct Appeal
his resisting arrest conviction, Mr. Weeks reiterated the
same arguments he made before the sentencing court. He
conceded that the first method of violating the statute,
Mass. Gen. Laws ch. 268, § 32B(a)(1) ("using or
threatening to use physical force or violence against the
police officer or another"), qualified as a violent
felony, but argued that the second method of violating the
statute, § 32B(a)(2) ("using any other means which
creates a substantial risk of causing bodily injury to such
police officer or another"), did not qualify.
Weeks, 442 Fed.Appx. at 455-56. We rejected this
argument in an unpublished opinion, concluding that
Massachusetts's resisting arrest statute "involves
conduct that presents a serious potential risk of physical
injury to another." Id. at 456 (quoting 18
U.S.C. § 924(e)(2)(B)(ii)). We stated:
Weeks argues that "[u]nder Massachusetts law, the
offense of resisting arrest may be committed violently or
non-violently," but we agree with the First Circuit that
resisting arrest under Massachusetts law always involves
violence. "Because the police officer is duty-bound to
effectuate the arrest, the offense engenders a significant
risk of conflict and, concomitantly, a significant risk of
injury." Almenas, 553 F.3d at 34; see
also [United States v. Weekes, 611 F.3d 68, 73
(1st Cir. 2010).] Weeks has failed to establish that
resisting arrest by "using any other means which creates
a substantial risk of causing bodily injury to such police
officer or another," ...