          Case: 17-10028   Date Filed: 02/01/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    __________________________

                           No. 17-10028
                       Non-Argument Calendar
                    __________________________

              D.C. Docket No. 8:16-cv-01673-SCB-TGW,
                     8:92-cr-00271-SCB-TGW-1


KENNETH FLOYD PRUTTING,

                                                        Petitioner - Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent - Appellee.

                    __________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                   __________________________

                           (February 1, 2018)
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Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

       Kenneth Prutting, a federal prisoner serving a 264-month sentence, appeals

the District Court’s dismissal of his motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. On appeal, Prutting argues that he does not

qualify as an armed career criminal because his robbery convictions under

Connecticut law fell under the residual clause of the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e), which the Supreme Court invalidated in Johnson v.

United States, — U.S. ——, 135 S. Ct. 2551 (2015). We hold that he has failed to

prove that the sentencing court used the residual clause to enhance his sentence,

and therefore that he cannot prevail on his Johnson claim. Beeman v. United

States, 871 F.3d 1215, 1221–22 (11th Cir. 2017).

                                          I.
       Prutting has three prior convictions of robbery in Connecticut. 1 He has one

conviction of third-degree assault from 1982. In 1993, a jury convicted Prutting of

being a convicted felon in possession of a firearm. 18 U.S.C. §§ 922(g), 924(e).




       1
         In 1982, Prutting was convicted of second degree robbery under Conn. Gen. Stat. § 53a-
135(a)(1) and first degree robbery pursuant to Conn. Gen. Stat. § 53a-134(a)(4). In 1984,
Prutting was once again convicted of first degree robbery under Conn. Gen. Stat. § 53a-
134(a)(4).
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The District Court determined that Prutting was an armed career criminal and

sentenced him to 264 months of prison.

      In the aftermath of Johnson, Prutting moved the District Court to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255(a). He argued that his

sentence enhancement relied on the residual clause and that his robbery

convictions cannot fall under the elements clause. The District Court denied his

§ 2255 petition. It held that robbery, as defined in Connecticut law, constitutes a

violent felony under the elements clause because it requires the use, attempted use,

or threatened use of physical force against another person.

      Prutting then moved for a certificate of appealability (“COA”), but the

District Court denied the motion. Prutting, however, appealed and obtained a COA

from a member of this Court.

                                         II.

      When we review a § 2255 claim, we review legal conclusions de novo and

factual findings for clear error. Osley v. United States, 751 F.3d 1214, 1222 (11th

Cir. 2014). It is a question of law whether a conviction is a violent felony under

the ACCA. United States v. Seabrooks, 839 F.3d 1326, 1338 (11th Cir. 2016). We

are free to affirm on any ground supported by the record. Castillo v. United States,

816 F.3d 1300, 1303 (11th Cir. 2016).




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      The ACCA provides that a defendant faces a mandatory minimum of fifteen

years in prison when he or she is convicted of being a felon in possession of a

firearm and has three or more prior convictions for a serious drug offense or a

violent felony. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” to

mean any crime punishable by more than one year in prison and 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)(i)–(ii). We refer to the first prong of this definition as the

“elements clause,” while the second prong contains both an “enumerated crimes”

clause and a “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th

Cir. 2012). In Johnson, the Supreme Court struck down the residual clause as

unconstitutionally vague. 135 S. Ct at 2556. The holding in Johnson represents a

new substantive rule that has retroactive application to cases on review. Welch v.

United States, — U.S. ——, 136 S. Ct. 1257, 1268 (2016).

      To make out a successful claim under Johnson, a petitioner must establish

that his sentence enhancement turned on the validity of the residual clause.

Beeman, 871 F.3d at 1221. He must show that the residual clause “actually

adversely affected the sentence he received.” Id. Accordingly, the petitioner must

prove that the residual clause “more likely than not” formed the basis for his
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sentence enhancement. Id. at 1221–22. “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 the use of the residual clause.” Id. at 1222. A petitioner

cannot prevail if he or she fails “to prove that but for the residual clause he would

have received a different sentence.” Id. at 1225.

       In the present case, Prutting argues that he is not an armed career criminal

because his ACCA enhancement rested on the residual clause. However, he offers

no evidence that the District Court actually relied on the residual clause in

enhancing his sentence. Prutting concedes that robbery convictions could, and

have been held to, fall under the elements clause. True. See United States v.

Wilkerson, 286 F.3d 1324, 1325 (11th Cir. 2002) (holding that robbery under

Florida law is a violent felony under the ACCA). As a result, the District Court

might have relied on either the elements clause or the residual clause in enhancing

his sentence. The record does not reveal which one.2 Id. at 1221. It is just as

likely that the District Court relied on the elements clause as the residual clause,

especially since the Connecticut robbery statute plainly requires “the use of

physical force upon another person.” Conn. Gen. Stat. § 53a-133; cf. United States


       2
          The Presentence Investigation Report (“PSI”) does not state which clause of the ACCA
supported an enhancement. In a sentencing hearing on September 7, 1993, the District Court
stated that “the Defendant is an armed career criminal.” It said no more on the matter.
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v. Vail-Bailon, 868 F.3d 1293, 1302 (11th Cir. 2017) (holding that the ACCA

requires only “violent force that is capable of causing physical pain or injury to

another (emphasis added)). Therefore, Prutting has “failed to prove—that it was

more likely than not—he in fact was sentenced as an armed career criminal under

the residual clause.” Beeman, 871 F.3d at 1225. Because Prutting does not have a

claim under Johnson, his challenge to the elements clause is time-barred. See 28

U.S.C. § 2255(f)(1). Accordingly, the decision of the District Court is

      AFFIRMED.




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