United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge
case is before the Court on Petitioner Burl Bargeron's
Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. 11, Amended Motion to
Vacate) and Supporting Memorandum (Civ. Doc. 19, Supporting
Memorandum). Relying in part on Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016), Bargeron argues that his
sentence was unconstitutionally enhanced under the
“residual clause” of the Armed Career Criminal
Act (ACCA). The United States has responded (Civ. Doc. 7,
Motion to Dismiss; Civ. Doc. 20, Response), and Bargeron has
replied (Civ. Doc. 23, Reply). For the reasons set forth
below, Bargeron's Amended Motion to Vacate is due to be
possession of a firearm by a convicted felon is punishable by
a maximum term of imprisonment of ten years. 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Under the ACCA, however, a
felon in possession of a firearm who has at least three prior
convictions “for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another, ” is subject to a 15-year mandatory minimum
term of imprisonment. Id. at § 924(e)(1).
ACCA defines the term “violent felony” as any
crime punishable by a term of imprisonment exceeding one year
(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.
Id. at § 924(e)(2)(B) (emphasis added). Subpart
(i) of this definition is often referred to as the
“elements clause.” Subpart (ii) has two
components: the first nine words constitute the
“enumerated offense clause, ” and the last 15
words, which are emphasized above, are referred to as the
“residual clause.” See Mays v. United
States, 817 F.3d 728, 730-31 (11th Cir. 2016).
Johnson and Welch
26, 2015, the Supreme Court in Johnson held that the
ACCA's residual clause is unconstitutionally vague
because the residual clause “creates uncertainty about
how to evaluate the risks posed by a crime and how much risk
it takes to qualify as a violent felony.” In re
Moore, 830 F.3d 1268, 1270 (11th Cir. 2016) (citing
Johnson, 135 S.Ct. at 2557-58, 2563). However, the
Supreme Court's holding did not call into question the
validity of the elements clause or the enumerated offense
clause. Johnson, 135 S.Ct. at 2563. On April 18,
2016, the Supreme Court held in Welch that
Johnson announced a new substantive rule that
applies retroactively to cases on collateral review.
Welch, 136 S.Ct. at 1264-65.
11, 2009, a grand jury sitting in the Middle District of
Florida indicted Bargeron on two counts of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). (Crim. Doc. 1, Indictment). Bargeron
proceeded to a bench trial on stipulated facts, at the
conclusion of which the Court found him guilty of both
charges. (See Crim. Doc. 89, Bench Trial Transcript
main issue in Bargeron's criminal case was whether he
qualified to be sentenced under the ACCA, 18 U.S.C. §
924(e). The United States contended that Bargeron qualified
for the ACCA enhancement because he had three prior
convictions for a “serious drug offense.”
(See Crim. Doc. 64, USA's Sentencing Memorandum;
Crim. Doc. 68, USA's Supplemental Sentencing Memorandum).
Those offenses were as follows: (1) a federal conviction on
May 1, 2003, for conspiracy to distribute 500 grams or more
of methamphetamine, in violation of 21 U.S.C. §§
841 and 846, in the United States District Court for the
Middle District of Florida, Case Number 3:02-cr-183-J-21TEM
(“the Conspiracy Offense”); (2) a state
conviction on May 29, 2003, for trafficking methamphetamine,
in the Circuit Court for the Third Judicial Circuit in and
for Hamilton County, Florida (“the Hamilton County
Offense”); and (3) a state conviction on May 29, 2003,
for trafficking methamphetamine, in the Circuit Court for the
Third Judicial Circuit in and for Columbia County, Florida
(“the Columbia County Offense”).
ACCA issue centered on whether the Conspiracy Offense was
committed on an occasion different from the Hamilton County
and Columbia County Offenses. (See Crim. Doc. 65
Bargeron's Sentencing Memorandum; Crim. Doc. 69,
Bargeron's Supplemental Sentencing
Memorandum). The thrust of Bargeron's argument was
that the Hamilton County and Columbia County Offenses were
part-and-parcel of the Conspiracy Offense, and as such, the
Conspiracy Offense should not be counted separately from the
two substantive drug offenses. Bargeron's Supplemental
Sentencing Memorandum at 3. The United States argued that the
Conspiracy Offense was separate from the Hamilton County and
Columbia County Offenses because, although the substantive
offenses occurred within the conspiracy, the Conspiracy
Offense encompassed additional conduct that occurred at
different times and places from the Hamilton County and
Columbia County Offenses. USA's Sentencing Memorandum at
reviewing the parties' sentencing memoranda, and
following an extended sentencing hearing that took place over
the course of three days (see Civ. Doc. 7-1,
Sentencing Transcript Volume I [“Sent. Tr. Vol.
I”]; Civ. Doc. 7-2, Sentencing Transcript Volume II
[“Sent. Tr. Vol. II”]; Civ. Doc. 7-3, Sentencing
Transcript Volume III [Sent. Tr. Vol. III”]), the Court
agreed with the United States that the Conspiracy Offense was
separate from the Hamilton County and Columbia County
Offenses, Sent. Tr. Vol. III at 3-10. The Court explained
that the crime of conspiracy “is a crime separate and
apart from … any substantive acts that may be
committed as part of the conspiracy, ” and that the
crime of conspiracy was completed once Bargeron joined it.
Id. at 4. As such, the Conspiracy Offense is
“a separate and complete offense well before the May
16th  distribution and the May 30th  distribution
and possession that occurred in Hamilton and Columbia
Counties, respectively.” Id. at 4-5. The Court
found support for that conclusion in the following passage
from United States v. Rice, 43 F.3d 601 (11th Cir.
An ongoing course of criminal conduct such as narcotics
trafficking may involve many such criminal episodes, each a
discrete occurrence. The fact that all are related, part of a
series, or part of a continuous course of criminal dealing,
does not necessarily render them a ‘single'
criminal episode, particularly where the episodes occur over
time. To so hold would insulate the very career criminals the
statute is designed to reach-those continuously engaged in
Sent. Tr. Vol. III at 5 (quoting Rice, 43 F.3d at
608) (quoting United States v. Maxey, 989 F.2d 303,
307 (9th Cir. 1993)).
the Court explained that the conduct underlying the
Conspiracy Offense included activity that was distinct in
time, location, and character from the conduct underlying the
Hamilton County and Columbia County trafficking offenses.
Whereas the conduct underlying the Hamilton County and
Columbia County Offenses took place on May 16, 2002, and May
30, 2002, respectively, the conduct underlying the Conspiracy
Offense lasted from November 2001 through May 2002. Sent. Tr.
Vol. III at 5-6. The conduct underlying the two substantive
trafficking offenses also occurred discretely in Hamilton
County and Columbia County, whereas the conduct underlying
the conspiracy spanned across Hamilton County, Columbia
County, and Suwannee County, Florida (where law enforcement
discovered a meth lab that was part of the conspiracy).
Id. at 5, 7. And whereas the conduct underlying the
Hamilton County and Columbia County trafficking offenses
involved the distribution of methamphetamine, the conduct
underlying the conspiracy involved Bargeron obtaining
materials for manufacturing methamphetamine and
“serving as a lookout for another individual cooking
methamphetamine[.]” Id. at 7. Thus, the Court
was “firmly convinced that these three offenses are
separate offenses which must each count as a separate
conviction for purposes of the ACCA.” Id. at
the Court determined that Bargeron had three separate
convictions for “serious drug offenses, ” which
qualified him for a sentence under the ACCA. The United
States and Bargeron each requested that the Court impose the
mandatory minimum prison sentence of 180 months (15 years).
Id. at 11-12. The Court followed that recommendation
and sentenced Bargeron to concurrent terms of imprisonment of
180 months as to Counts One and Two, followed by a four-year
term of supervised release. Id. at 13.
filed a timely appeal. (Crim. Doc. 78, Notice of Appeal).
“On appeal, Bargeron argue[d] that the district court
erred in applying the ACCA 15-year minimum sentence because
his conspiracy offense did not occur on a different occasion
than his two trafficking offenses.” United States
v. Bargeron, 435 F. App'x 892, 893 (11th Cir. 2011).
The Eleventh Circuit neither expressly affirmed nor disturbed
the Court's “different occasions” ruling.
Instead, the Eleventh Circuit avoided the question and held
that, “even if the district court erred by concluding
that Bargeron's conspiracy conviction qualified as a
third predicate ACCA conviction, any such error was harmless,
” because “Bargeron stipulated to a 1999 Florida
conviction for burglary of a structure.” Id.
at 894. The court reasoned as follows:
Burglary of a structure, at the time of Bargeron's
offense, constituted a generic burglary to the extent the
crime involved a building because it criminalized the
unlawful entering or remaining in a building with the intent
to commit an offense therein. Compare Fla. Stat.
810.02(1)(a) (1998) with Taylor, 495 U.S. at 599,
110 S.Ct. 2143. To the extent the offense involved
the curtilage of a building, it involved conduct that
presented a serious potential risk of physical injury to
another. See Matthews, 466 F.3d at 1275-76. And at
minimum, a Florida burglary offense was punishable by up to 5
years imprisonment. See Fla. Stat. § 810.02(4)
(1998); Fla. Stat. § 775.082(3)(d) (1998). Consequently,
regardless of whether the offense involved a building or its
curtilage, burglary of a structure qualified as a
Bargeron, 435 F. App'x at 894. The court added
that “Bargeron's burglary offense occurred on a
different occasion [from] his two trafficking offenses,
” as it occurred at least four years before the drug
offenses. Id. Thus, the court concluded that
Bargeron “had three qualifying prior convictions even
if his conspiracy conviction is disregarded, and was subject
to the ACCA 15-year statutory minimum sentence.”
petitioned the Supreme Court for a writ of certiorari, but
the Supreme Court denied the petition on December 5, 2011.
Bargeron v. United States, 132 S.Ct. 829 (2011).
Bargeron's Amended Motion to Vacate (Doc. 11)
Amended Motion to Vacate, Bargeron raises three claims.
First, Bargeron contends that, in light of Johnson,
135 S.Ct. 2551, his sentence was unlawfully enhanced under
the ACCA's residual clause. Amended Motion to Vacate at
4; Supporting Memorandum at 1-4. Bargeron points to the fact
that on direct appeal, the Eleventh Circuit affirmed the ACCA
enhancement due to a prior burglary conviction, and in doing
so the Eleventh Circuit relied in part on the now-invalid
residual clause. See Bargeron, 435 F. App'x at
894. Bargeron further argues that, in light of
Taylor, 495 U.S. 575, and Mathis v. United
States, 136 S.Ct. 2243 (2016), Florida ...