John Forrest Coon v. United States ( 2016 )


Menu:
  •             Case: 13-15951   Date Filed: 09/01/2016   Page: 1 of 5
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 13-15951
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 2:10-cv-08019-IPJ; 2:07-cr-00118-IPJ-MHH-1
    JOHN FORREST COON,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (September 1, 2016)
    ON REMAND FROM THE UNITED STATES SUPREME COURT
    Before MARCUS, JULIE CARNES and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    We are considering this matter on remand from the United States Supreme
    Court. The first time the case was before us on appeal, John Forrest Coon, a
    Case: 13-15951       Date Filed: 09/01/2016       Page: 2 of 5
    federal prisoner serving a 180-month total sentence for possession of a firearm by a
    convicted felon in violation of 18 U.S.C. § 922(g)(1), challenged the district
    court’s denial of his pro se motion to vacate, set aside, or correct sentence, filed
    pursuant to 28 U.S.C. § 2255. The district court had granted Coon a certificate of
    appealability (“COA”) on all of the issues that he raised, including that: (1) his
    sentence was incorrectly enhanced under the Armed Career Criminal Act
    (“ACCA”), 18 U.S.C. § 924(e); (2) he received ineffective assistance of counsel
    because counsel did not adequately research his criminal history and oppose the
    ACCA enhancement; (3) the district court abused its discretion in denying his §
    2255 motion without an evidentiary hearing; (4) the district court violated Clisby v.
    Jones, 
    960 F.2d 925
    (11th Cir. 1992) (en banc), by not addressing all of his
    constitutional claims; and (5) the district court erred generally in denying all other
    claims he asserted in his § 2255 motion. We affirmed the district court’s decision
    on appeal in its entirety, but, thereafter, the United States Supreme Court remanded
    the case to us in light of its decision in Johnson v. United States, 
    135 S. Ct. 2551
    (2015). After thorough review, we vacate and remand for resentencing.1
    1
    We DENY AS UNNECESSARY Coon’s request to expand the COA to include a
    Johnson claim. Prior to Johnson, the district court granted Coon a COA on, inter alia, the claim
    that he was incorrectly sentenced under the ACCA in excess of the statutory maximum. Once
    Johnson was decided and the Supreme Court remanded the case, the parties submitted
    supplemental briefing to this Court about the effect of Johnson. In its supplemental brief, the
    government conceded that Coon was sentenced above the statutory maximum in light of
    Johnson, and did not argue that it lacked fair notice of this claim. While we are limited to
    reviewing the issues enumerated in a COA, McKay v. United States, 
    657 F.3d 1190
    , 1195 (11th
    2
    Case: 13-15951       Date Filed: 09/01/2016       Page: 3 of 5
    On remand, Coon and the government agree on the sole issue before us:
    whether the district court erred in denying the claim in his § 2255 motion to vacate
    that he was erroneously sentenced under the ACCA in excess of the statutory
    maximum. 2 In reviewing the denial of a § 2255 motion to vacate, we review
    questions of law de novo and findings of fact for clear error. Lynn v. United
    States, 
    365 F.3d 1225
    , 1232 (11th Cir. 2004).
    The ACCA provides that anyone convicted of an offense under 18 U.S.C. §
    922(g) who has three previous convictions for a “violent felony” or a “serious drug
    offense” is subject to a 15-year mandatory minimum sentence.                      18 U.S.C. §
    924(e)(1).    Defendants convicted under § 922(g) who do not qualify for an
    enhanced sentence under the ACCA face a statutory mandatory maximum of ten
    years’ imprisonment. 
    Id. § 924(a)(2).
    The ACCA defines a violent felony as any crime punishable by a term of
    imprisonment 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
    Cir. 2011), we conclude on this record that the COA the district court granted incorporates the
    claim that Coon was sentenced above the statutory maximum in light of Johnson.
    2
    When we considered Coon’s appeal the first time, the government argued that Coon had
    procedurally defaulted on his ACCA claim. However, on remand, the government expressly
    concedes that it has waived all of the procedural defenses it asserted before us and the district
    court. Thus, our ruling that Coon procedurally defaulted on his ACCA claim no longer stands,
    and we address its merits. Bryant v. Warden, FCC Coleman-Medium, 
    738 F.3d 1253
    , 1261
    (11th Cir. 2013) (holding that we cannot avoid ruling on a claim a petitioner has procedurally
    defaulted if the government has waived the procedural default defense for that claim).
    3
    Case: 13-15951     Date Filed: 09/01/2016   Page: 4 of 5
    (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. § 924(e)(2)(B).
    The first prong of this definition is sometimes referred to as the
    “elements clause,” while the second prong contains the “enumerated crimes” and,
    finally, what is commonly called the “residual clause.” United States v. Owens,
    
    672 F.3d 966
    , 968 (11th Cir. 2012).
    In Johnson, the Supreme Court held that because the residual clause of the
    “violent felony” definition in the Armed Career Criminal Act (“ACCA”) is
    unconstitutionally vague, imposition of an enhanced sentence under that provision
    violates the Fifth Amendment's guarantee of due process. The Supreme Court
    made clear that its ruling on the residual clause did not call into question the
    validity of the elements clause or the enumerated crimes clause of the ACCA’s
    definition of a violent 
    felony. 135 S. Ct. at 2563
    . In Welch v. United States, 578
    U.S. __, 
    136 S. Ct. 1257
    (2016), the Supreme Court held that Johnson applies
    retroactively to cases on collateral review.
    Here, Coon’s presentence investigation report (“PSI”) identified four ACCA
    predicate violent felonies: (1) a 1992 third-degree burglary conviction in Alabama
    state court; (2) a 1990 Florida state conviction for burglary of a dwelling; (3)
    another 1990 Florida state conviction for burglary of a dwelling; and (4) a 1991
    third-degree escape conviction in Alabama state court. The government previously
    4
    Case: 13-15951     Date Filed: 09/01/2016   Page: 5 of 5
    conceded that Coon’s prior conviction for third-degree escape no longer qualified
    as a ACCA predicate conviction. Now, in its supplemental brief, the government
    concedes that, in light of Johnson, it can no longer maintain that Coon’s Alabama
    third-degree burglary conviction qualifies as a violent felony. This is because
    we’ve held, in a case on direct appeal, that “[w]ithout the residual clause of the
    ACCA, there is no longer any basis for characterizing the Alabama third degree
    burglary statute as a violent felony under the ACCA.” United States v. Nelson,
    
    813 F.3d 981
    , 981 (11th Cir. 2015). Without this Alabama conviction, Coon has,
    at most, two predicate convictions, which is not enough to qualify for an enhanced
    sentence under the ACCA. See 18 U.S.C. § 924(a)(2), (e)(1). Therefore, his total
    15-year sentence exceeds the statutory maximum. See 
    id. Accordingly, we
    agree with Coon and the government that a remand to the
    district court is appropriate.   On remand, Coon must be resentenced without
    reference to the residual clause.    “[W]hen a criminal sentence is vacated, it
    becomes void in its entirety; the sentence -- including any enhancements -- has
    been wholly nullified and the slate wiped clean.” United States v. Stinson, 
    97 F.3d 466
    , 469 (11th Cir. 1996) (quotation omitted). “Consequently, when a sentence is
    vacated and the case is remanded for resentencing, the district court is free to
    reconstruct the sentence utilizing any of the sentence components.” 
    Id. VACATED AND
    REMANDED.
    5
    

Document Info

Docket Number: 13-15951

Judges: Marcus, Carnes, Pryor

Filed Date: 9/1/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024