Case: 17-15742   Date Filed: 06/22/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15742
                        Non-Argument Calendar
                      ________________________

   D.C. Docket Nos. 4:16-cv-00304-MW-CAS & 4:02-cr-00003-MW-CAS-1



DAVID JUNIOR UPSHAW,

                                                          Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                             (June 22, 2018)

Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      David Upshaw, a federal prisoner, is serving a total 329-month sentence

after pleading guilty, under the pre-Booker1 sentencing guidelines, to conspiracy to

distribute and to possess with intent to distribute cocaine base, possession of a

firearm during a drug trafficking crime, and possession of a firearm by a convicted

felon. Upshaw appeals the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate. In his motion, Upshaw argued he was illegally sentenced both under the

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and as a career

offender under United States Sentencing Guideline (“USSG”) § 4B1.1, because his

previous convictions for Florida burglary of a dwelling did not qualify as predicate

offenses. The district court concluded that Upshaw’s arguments were foreclosed

by our decisions in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) and

In re Griffin, 823 F.3d 1350 (11th Cir. 2016) (per curiam). After careful review,

we affirm.

                                                I.

      In 2002, Upshaw pled guilty to conspiracy to distribute and to possess with

intent to distribute more than 500 grams of cocaine base; possession of a firearm

during and in relation to a drug trafficking crime; and possession of a firearm by a

convicted felon. Upshaw’s presentence investigation report (“PSR”) listed a

number of prior convictions, including a 1995 Florida conviction for possession of


      1
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
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a controlled substance with intent to sell and two 1997 Florida convictions for

burglary of a dwelling. Based on these convictions, Upshaw qualified both as a

career offender under USSG § 4B1.1 and for an enhanced sentence under ACCA.

But because of the large drug quantity at issue in his case, neither of those

enhancements drove Upshaw’s sentence. In the end, Upshaw’s guidelines range

was 292 to 365 months, plus an additional mandatory minimum consecutive

sentence of 60 months for his possession of a firearm by a convicted felon charge.

The sentencing court imposed a total sentence of 360-months imprisonment.

      In 2008, Upshaw filed a motion for a sentence reduction based on an

amendment to the sentencing guidelines that lowered the guideline range for

certain offenses involving cocaine base. The sentencing court agreed a reduction

was appropriate, but noted Upshaw’s sentence would now be based on his career

offender and ACCA enhancements. The court calculated Upshaw’s new

sentencing guideline range to be 262 to 327 months, plus the same mandatory

consecutive 60-month sentence for his firearm possession charge. The court

sentenced Upshaw to a new total sentence of 329 months.

      Upshaw filed his first 18 U.S.C. § 2255 petition in 2014, which the district

court dismissed as untimely. In 2016, Upshaw filed an application to file a second

or successive § 2255 petition, which this Court granted. Upshaw’s application was

based on the Supreme Court’s decision in Johnson v. United States, 576 U.S. ___,


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135 S. Ct. 2551 (2015). He argued that his sentence had been unconstitutionally

enhanced under ACCA.

      The district court denied Upshaw’s petition. The court determined

Upshaw’s ACCA claim was foreclosed by this Court’s recent decision in Beeman

because Upshaw had not shown it was more likely than not that he was sentenced

under the residual clause. The district court also determined Upshaw’s career

offender claim failed because this Court’s decision in Griffin held that Johnson did

not invalidate the residual clause of the career offender provision of the mandatory

guidelines. Although it denied relief, the district court granted Upshaw a

certificate of appealability on the following issues:

      1) whether Petitioner must affirmatively show that the sentencing
      court relied on the ACCA residual clause; and 2) whether Johnson
      applies to the career offender provision of the pre-Booker Guidelines.

This appeal followed.

                                          II.

      First, Upshaw argues that “despite a silent record” on whether his sentencing

court relied on the residual clause, he “presented a cognizable claim” under

Johnson. Upshaw concedes that we are obligated to affirm the district court’s

decision based on the holding in Beeman, but he argues that Beeman was wrongly

decided and should be overturned.




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      “In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal

conclusions de novo and factual findings for clear error.” Devine v. United States,

520 F.3d 1286, 1287 (11th Cir. 2008) (per curiam). Under the prior precedent rule,

we are bound by our prior decisions unless and until they are overruled by the

Supreme Court or this Court en banc. United States v. Brown, 342 F.3d 1245,

1246 (11th Cir. 2003). The issuance or non-issuance of the mandate does not

change this result. See Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir.

1992) (per curiam).

      ACCA requires a sentence of at least 15 years if a defendant is convicted of

being a felon in possession of a firearm and has three or more earlier convictions

for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1). ACCA

defines “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

      (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 referred to as the “elements

clause,” while the second prong contains the “enumerated crimes” clause and the

“residual clause.” See United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).



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In Johnson, the Supreme Court held that ACCA’s residual clause was

unconstitutionally vague. Johnson, 135 S. Ct. at 2557–58, 2563.

      Under Beeman, a defendant bringing a Johnson claim in a § 2255 motion

must “show that—more likely than not—it was use of the residual clause that led

to the sentencing court’s enhancement of his sentence.” Beeman, 871 F.3d at

1221–22. And “[i]f 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.

      Upshaw failed to show the sentencing court relied on the residual clause in

applying his ACCA enhancement. He acknowledges that Beeman forecloses his

claim for this reason. Although he argues Beeman was wrongly decided, it

remains binding precedent in this circuit unless and until it is overruled. See

Brown, 342 F.3d at 1246. The district court therefore properly denied Upshaw’s

ACCA claim.

                                            III.

      Second, Upshaw argues that Beckles v. United States, 580 U.S. ___, 137 S.

Ct. 886 (2017), suggests Johnson also renders the residual clause in the career

offender provision of the pre-Booker guidelines unconstitutionally vague. Upshaw

acknowledges that this Court ruled in Griffin that the mandatory guidelines are not


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subject to vagueness challenges, but he argues that Griffin was wrongly decided

and should be overturned in light of Beckles. In addition, Upshaw says Griffin is

not binding on him because it arose in the context of an application to file a second

or successive § 2255 motion.

      In Beckles, the Supreme Court held that the advisory guidelines are not

subject to a vagueness challenge under the Due Process Clause. Beckles, 137 S.

Ct. at 895–96. Beckles specifically left open the question of whether the pre-

Booker mandatory guidelines are subject to a vagueness challenge. See id. But in

Griffin, this Court held that “[t]he Guidelines—whether mandatory or advisory—

cannot be unconstitutionally vague because they do not establish the illegality of

any conduct and are designed to assist and limit the discretion of the sentencing

judge.” Griffin, 823 F.3d at 1354–56.

      The district court correctly denied Upshaw’s career offender claim because

his argument is foreclosed by Griffin. Griffin is a published order denying an

application to file a second or successive habeas petition, and this Court recently

decided that such orders are binding precedent even outside of the context of

second or successive habeas applications. United States v. St. Hubert, 883 F.3d
1319, 1329 (11th Cir. 2018). Upshaw argues that Griffin was wrongly decided, but

again, prior panel decisions remain binding unless and until they are overruled.

See Brown, 342 F.3d at 1246. While Beckles specifically left open the question of


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Johnson’s application to the pre-Booker mandatory guidelines, that does not mean

that the Supreme Court has overruled our precedent answering that question.

      Upshaw also claims he is entitled to a resentencing even if this Court only

overturns his ACCA sentence but leaves his career offender designation intact.

Because we affirm both Upshaw’s ACCA sentence and his career offender

designation, we need not reach this question.

      AFFIRMED.




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