United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, United States District Judge.
case is before the Court on Petitioner Archery Lynn
Overstreet's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1; §
2255 Motion) and Supporting Memorandum (Civ. Doc. 11;
Memorandum). Overstreet pled guilty to one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). The Court sentenced him to a term of
420 months in prison after determining he was an armed career
criminal under § 924(e). (See Crim. Doc. 41;
Judgment). Overstreet raises a single claim: that the Court
wrongly sentenced him under the Armed Career Criminal Act
(ACCA) in light of the United States Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). The United States has responded (Civ. Doc. 13;
Response), and Overstreet has replied (Civ. Doc. 22; Reply).
The Court has also considered Overstreet's notice of
supplemental authority (Civ. Doc. 23; Supp. Auth.), the
United States' response to the supplemental authority
(Civ. Doc. 27; Response to Supp. Auth.), and Overstreet's
reply (Civ. Doc. 34; Reply Concerning Supp. Auth.). Thus, the
matter is ripe for review.
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, the Court has considered the need for
an evidentiary hearing and determines that a hearing is not
necessary to resolve the merits of this action. See Rosin
v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an
evidentiary hearing on a § 2255 petition is not required
when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently
frivolous, or if in assuming the facts that he alleges are
true, he still would not be entitled to any relief);
Patel v. United States, 252 Fed.Appx. 970, 975 (11th
Cir. 2007). For the reasons set forth below,
Overstreet's § 2255 Motion is due to be denied.
facts and circumstances of this case are well set out in the
Eleventh Circuit's opinion affirming Overstreet's
sentence on direct appeal. United States v.
Overstreet, 713 F.3d 627, 629-634 (11th Cir. 2013). The
Court repeats the essential facts here:
A. The Indictment
A federal grand jury issued a superseding indictment (the
“indictment”), charging Overstreet with one count
of possessing a firearm while being a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The
indictment alleged that Overstreet previously was convicted
in Texas state court of five crimes punishable by
imprisonment for a term exceeding one year: (1) burglary of a
building, committed in July 1983; (2) burglary of a
habitation, committed on May 27, 1986; (3) attempted murder,
committed on May 27, 1986; (4) aggravated sexual assault,
committed on May 28, 1986; and (5) another attempted murder,
committed on May 28, 1986.
B. Overstreet's Prior Convictions
Overstreet's four most serious prior convictions-burglary
of a habitation, two attempted murders, and aggravated sexual
assault-stemmed from a crime spree that occurred in Texas on
May 27 and 28, 1986. That crime spree began with burglary,
when Overstreet and his brother, Clifford Carter, entered a
private home without permission and stole 13 firearms and a
car. Later that evening, Overstreet and Carter were pulled
over by two police officers for a seatbelt violation. As the
officers approached the car, both Overstreet and Carter fired
handguns at the officers. One of the officers was grazed by a
bullet on his right temple and fell to the ground, but
survived. The officers fired back, and Overstreet and Carter
Overstreet and Carter then drove to a relative's home in
an apartment complex, approximately seven miles away from the
place of the police shooting. They saw a young woman entering
her minivan in a parking lot. Overstreet and Carter entered
the minivan, threw the woman into the back, and drove to a
secluded area outside of Houston, Texas, near the Brazos
River. They then forced the woman to remove her clothing and
raped her twice. After the rape, Overstreet and Carter made
the woman walk away from the minivan wearing only her bra and
underwear. When the woman was approximately 15 feet away from
the minivan, Overstreet and Carter each shot her in the back.
Four bullets hit the woman, and she fell down an embankment.
Overstreet later told the police that the woman was still
breathing when he and Carter left her, but they did not shoot
her again because they thought she would die anyway.
Fortunately, the woman survived. After the assailants left
the scene, she managed to crawl to a nearby residence and was
taken to a hospital, where she underwent extensive surgery to
remove her left kidney, remove a section of her large and
small intestines, and repair her lung.
As a result of this crime spree, Overstreet received one
conviction for burglary, two convictions for attempted
capital murder (for shooting the officer and the woman), and
one conviction for aggravated sexual assault. He was
sentenced in state court to a total of 60 years in prison.
C. The Present Offense
While serving his 60-year sentence in Texas, Overstreet
married a long-time friend, Taffy Overstreet
(“Taffy”). In 2008, after spending approximately
22 years behind bars, Overstreet was released on parole under
strict supervision and went to live with Taffy at her house
in Houston. He was 49 years old at the time of his release.
As part of his many parole conditions, Overstreet had to wear
an electronic monitoring ankle bracelet that would set off an
alarm if he left his home between 6:30 p.m. and 9:00 a.m.
On November 8, 2010, at approximately 5:30 a.m., Overstreet
cut his electronic ankle bracelet, setting off an alarm, and
fled Texas. Around the same time, Taffy disappeared and has
not been seen or heard from since. Overstreet was eventually
caught on December 8, 2010, in Jacksonville, Florida. Among
other things, the police discovered a loaded gun and a roll
of blood-stained duct tape in the trunk of the car he was
Overstreet was the prime suspect in Taffy's
disappearance, but her body was never found, and Overstreet
was not charged with her murder. Rather, Overstreet was
indicted in federal court on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g). He pled guilty to this firearm offense, but did not
admit the existence and nature of his prior convictions,
aside from the fact that he had at least one prior felony.
Overstreet expressly reserved the right to contest his
potential sentencing enhancement under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
At Overstreet's sentencing hearing for the present
offense, the district court found that the government proved
by a preponderance of the evidence that Overstreet murdered
Taffy while absconding from parole….
D. Sentencing Guideline Calculations
According to the Presentence Investigation Report
(“PSI”), Overstreet's initial base offense
level was 24, pursuant to U.S.S.G. § 2K2.1(a)(2). The
PSI then classified Overstreet as an armed career criminal
under the ACCA and U.S.S.G. § 4B1.4(b) because he had at
least three prior convictions for a violent felony. The ACCA
classification resulted in an offense level of 33. Overstreet
qualified for a total three-level reduction under U.S.S.G.
§ 3E1.1(a)-(b) for acceptance of responsibility,
yielding a total offense level of 30.
Based on his prior convictions and the fact that he was on
parole when he committed the present offense, the PSI placed
Overstreet into criminal history category V, which, combined
with the offense level of 30, resulted in a guideline range
of 151 to 188 months' imprisonment. However, the ACCA
mandated a minimum sentence of 15 years, or 180 months, and
thus Overstreet's guideline range became 180 to 188
months. See 18 U.S.C. § 924(e); U.S.S.G. §
5G1.1(c)(2). The statutory maximum term for Overstreet's
offense was life imprisonment. See 18 U.S.C. §
924(e)(1); United States v. Brame, 997 F.2d 1426,
1428 (11th Cir. 1993) (holding the statutory maximum sentence
under § 924(e) is life imprisonment, even though the
statute does not state so expressly).
Overstreet, 713 F.3d at 629-31 (footnotes omitted).
The Court determined that a Criminal History Category of V
underrepresented the severity of Overstreet's criminal
record, and therefore departed upward to a Criminal History
Category of VI pursuant to U.S.S.G. § 4A1.3. (Crim. Doc.
48; Sentencing Tr. Vol. II at 55-57). The upward departure
yielded an advisory sentencing range of 180 to 210 months in
prison. Id. at 57.
Court then varied above the Guidelines range and sentenced
Overstreet to a term of 420 months in prison. Id. at
67. In explaining the upward variance, the Court pointed to
Overstreet's horrendous criminal history, the fact that
being on parole and serving 22 years in prison did not deter
him from committing further criminal conduct, and the
evidence that Overstreet likely murdered his wife.
Id. at 59-67. Based on these facts, the Court
explained, a significant upward variance was necessary to
protect the public and to deter Overstreet from committing
further crimes. Id. at 63.
appealed the sentence, “argu[ing] that his ACCA
enhancement was unconstitutional because (1) he did not admit
the existence of his prior convictions when he pleaded
guilty, and (2) the fact that his prior offenses were
‘committed on occasions different from one another'
should have been alleged in the indictment and proven beyond
a reasonable doubt.” Overstreet, 713 F.3d at
634-35. The Eleventh Circuit rejected both of
these arguments because they were “foreclosed by
binding precedent.” Id. at 635; see also
Almendarez-Torres v. United States, 523 U.S. 224,
226-27, 239 (1998) (the existence of a defendant's prior
convictions need not be alleged in the indictment, admitted,
or proven to a jury beyond a reasonable doubt); United
States v. Sneed, 600 F.3d 1326, 1332-33 (11th Cir. 2010)
(a district court has authority to make the
different-occasions determination so long as it limits itself
to Shepard-approved sources). Overstreet also argued
that his sentence was procedurally and substantively
unreasonable, but the Eleventh Circuit rejected those
arguments as well. Overstreet, 713 F.3d at 636-40.
As such, the Eleventh Circuit affirmed Overstreet's
sentence. Id. at 640.
petitioned the United States Supreme Court for a writ of
certiorari, but the Supreme Court denied certiorari review on
October 7, 2013. Overstreet v. United States, 571
U.S. 896, 134 S.Ct. 229 (Mem.) (2013). A little less than
three years later, on June 23, 2016, Overstreet filed the
instant § 2255 Motion to challenge his ACCA sentence.
The ACCA and Johnson
to 18 U.S.C. § 922(g), a person convicted of being a
felon in possession of a firearm is ordinarily subject to a
maximum term of imprisonment of 10 years. Under the ACCA,
however, that person is subject to an enhanced mandatory
minimum sentence of 15 years in prison if he has three or
more prior convictions for a violent felony or a serious drug
offense, or both, each committed on different occasions. 18
U.S.C. § 924(e)(1). At the time of Overstreet's
offense conduct and sentencing, the term “violent
felony” included “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) (emphasis added). Subsection
(i) of this provision is referred to as the “elements
clause, ” the first nine words of subsection (ii) are
referred to as the “enumerated clause, ” and the
rest of subsection (ii), which is emphasized above, is
referred to as the “residual clause.” Mays v.
United States, 817 F.3d 728, 730-31 (11th Cir. 2016).
Johnson v. United States, the Supreme Court held
that the residual clause is unconstitutionally vague. 135
S.Ct. at 2557-58, 2563. However, the Supreme Court made clear
that the elements clause and the enumerated clause remained
unaffected. Id. at 2563. Later, in Welch v.
United States, 136 S.Ct. 1257 (2016), the Supreme Court
held that Johnson applies retroactively on
prisoner to successfully challenge his ACCA sentence based on
Johnson, he must prove “more likely than
not” that the sentencing court relied on the residual
clause to impose the ACCA enhancement. Beeman v. United
States, 871 F.3d 1215, 1220-22 (11th Cir. 2017),
cert. denied, 139 S.Ct. 1168 (2019).
Only if the movant would not have been sentenced as an armed
career criminal absent the existence of the residual clause
is there a Johnson violation. That will be the case
only (1) if 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
(neither of which were called into question by
Johnson) to qualify a prior conviction as a violent
felony, and (2) if 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
Id. at 1221. “If it is just as likely that the
sentencing court relied on the elements or enumerated
offenses clause, solely or as an alternative basis for the
enhancement, then the movant has failed to show that his
enhancement was due to use of the residual clause.”
Id. at 1222.
the sentencing court relied on the residual clause is a
“historical fact, ” which is determined by
reference to the state of affairs that existed at the time of
sentencing. See id. at 1224 n.5. Thus, court
decisions rendered afterward holding that a particular
offense does not qualify under the elements clause or the
enumerated offense clause “cast[ ] very little light,
if any, on th[is] key question of historical fact.”
Id. A prisoner can establish that the sentencing
court relied on the residual clause in two ways. First, the
prisoner can point to “direct evidence: comments or
findings by the sentencing judge indicating that the residual
clause was relied on and was essential to application of the
ACCA in that case.” Id. at 1224 n.4.
Alternatively, absent direct evidence, there will
sometimes be sufficient circumstantial evidence to show the
specific basis of the enhancement. For example, there could
be statements in the PSR [Presentence Investigation Report],
which were not objected to, recommending that the enumerated
clause and the elements clause did not apply to the prior
conviction in question and did not apply to other prior
convictions that could have served to justify application of
the ACCA. Or the sentencing record may contain concessions by
the prosecutor that those two other clauses do not apply to
the conviction in question or others.
Id. A prisoner may also circumstantially prove that
the ACCA sentence depended on the residual clause “if
the law was clear at the time of sentencing that
only the residual clause would authorize a finding
that the prior conviction was a violent felony.”
Id. at 1224 n.5 (emphasis added). However, if
“‘the evidence does not clearly explain what
happened … the party with the burden