Joseph Fenelon Cooper v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11093
Non-Argument Calendar
____________________
JOSEPH FENELON COOPER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket Nos. 3:17-cv-00178-RV-EMT;
3:97-cr-00068-RV-EMT-1
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2 Opinion of the Court 21-10429
____________________
Before L UCK , L AGOA , AND B RASHER , Circuit Judges.
PER C URIAM :
This case is before us on remand from the United States Su-
preme Court for further consideration of Joseph Cooper’s convic-
tion under 18 U.S.C. section 924(c) in light of
United States v. Tay-
lor, 142 S. Ct. 2015 (2022). After consideration, we again affirm the
district court’s denial of Cooper’s second section 2255 motion.
We laid out the facts of this case in our previous opinion.
See Cooper v. United States, No. 20-11093, 2021 WL 2913068 (11th
Cir. July 12, 2021). Relevant here, we granted Cooper permission
to file a second section 2255 motion challenging his section 924(c)
conviction on the grounds that attempted bank robbery wasn’t a
predicate crime of violence in light of
Johnson v. United States, 576
U.S. 591 (2015).
Id. at *2. The district court dismissed Cooper’s
motion because he failed to satisfy his burden under 28 U.S.C. sec-
tion 2255(h) to show that it was “more likely than not that the re-
sidual clause, and only the residual clause, was the basis for the con-
viction.”
Id. “The district judge—who was the judge that sen-
tenced Cooper—found that he relied exclusively on the elements
clause of section 924(c)(3).”
Id. We granted a certificate of appeal-
ability to address the following issue:
Whether the district court erred in finding that
Cooper failed to satisfy his burden under
Beeman v.
United States, 871 F.3d 1215 (11th Cir. 2017), to show
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21-10429 Opinion of the Court 3
that he was unconstitutionally sentenced under the
residual clause of 18 U.S.C. section 924(c), when he
was convicted of attempted armed bank robbery.
Id.
We affirmed. Applying the harmless-error standard set forth
in
Granda v. United States, 990 F.3d 1272, 1284 (11th Cir. 2021), we
asked if there was any “grave doubt” whether Cooper suffered “ac-
tual prejudice” from any error committed by the district court, in-
cluding any improper reliance on the residual clause.
Id. at *3. We
concluded that (1) “the district court found that it relied solely on
the elements clause of section 924(c)(3) to determine that at-
tempted bank robbery was a crime of violence”; (2) “the indictment
support[ted] the conclusion that the district court relied on the ele-
ments clause because the indictment based the section 924(c)
charge on attempted bank robbery under the first paragraph of sec-
tion 2113(a)”; and (3) “the jury instructions reinforce[d] the conclu-
sion that the district court relied on the elements clause in deter-
mining that Cooper’s attempted bank robbery conviction was a
crime of violence.”
Id. at *4.
Cooper filed a petition for certiorari in the United States Su-
preme Court. On June 27, 2022, the Supreme Court granted certi-
orari; vacated our judgment of July 12, 2021; and remanded the
case for reconsideration in light of
Taylor.
Cooper v. United States,
142 S. Ct. 2859, 2859 (2022).
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4 Opinion of the Court 21-10429
In
Taylor, the Court held that attempted Hobbs Act robbery
doesn’t qualify as a “crime of violence” under section 924(c)(3)(A).
142 S. Ct. at 2020. Central to its holding, the Court applied a “cat-
egorical approach” to determine that attempted Hobbs Act rob-
bery may not serve as a predicate for a conviction and sentence
under the elements clause because it doesn’t have “
as an element
the use, attempted use, or threatened use of physical force.”
Id.
(citation omitted).
Whether attempted armed bank robbery may survive the
Court’s categorical approach to qualify as a predicate crime of vio-
lence under section 924(c)’s elements clause is an open question in
light of
Taylor. But whatever impact
Taylor may have on our sec-
tion 2255 jurisprudence going forward, it has no bearing on this
case. This case is about Cooper’s
Beeman burden to show that he
was unconstitutionally sentenced under the residual clause (and
not the elements clause), “meaning he will have to show that his
[section] 924(c) conviction[] resulted from application of solely the
now-unconstitutional residual clause.”
See Alvarado-Linares v.
United States, 44 F.4th 1334, 1341 (11th Cir. 2022) (brackets omit-
ted) (quoting
In re Hammoud, 931 F.3d 1032, 1041 (11th Cir.
2019)).
Determining whether a movant was sentenced solely under
the residual clause is a question of “historical fact.”
Beeman, 871
F.3d at 1224 n.5. For example, “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, that circumstance
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21-10429 Opinion of the Court 5
would strongly point to a sentencing per the residual clause.”
Id.
Conversely, precedent issued after sentencing “casts very little
light, if any, on the key question” of whether the movant was, in
fact, sentenced under only the residual clause.
Id. Nevertheless,
where the record and evidence don’t clearly explain what hap-
pened, the movant with the burden loses.
Id. at 1225.
This takes us right back to where we were before certiorari.
In our previous opinion, we concluded that the answer to
Bee-
man’s question of historical fact in this case was no. “[T]he district
court’s findings, the indictment, and the jury instructions show that
the district court relied on the elements clause.”
Cooper, 2021 WL
2913068, at *3. “Cooper cannot show that the district court relied
on section 924(c)(3)’s residual clause,” and the “record does not
show a ‘substantial likelihood’ that the district court did not rely in
whole or in part on the elements clause when sentencing Cooper.”
Id. at *5 (quoting
Granda, 990 F.3d at 1288). Thus, the district
court’s order denying Cooper’s second section 2255 motion must
be affirmed.
AFFIRMED.
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