In Pitts v. United States, No. 18-12096 (July 6, 2021) (Luck, Ed Carnes, Marcus), the Court affirmed the denial of Pitts’s Johnson-based second or successive § 2255 motion.
Pitts was sentenced as an armed career criminal based upon the following prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) a 1982 California conviction for robbery and forcible rape; (3) a 1993 Florida conviction for delivery of cocaine; and (4) a 2001 Florida conviction for possession with intent to sell or deliver cocaine.
On appeal, the Court addressed whether Pitts carried his burden of showing that the district court that sentenced him erred under the Johnson decision in counting his two robbery convictions as ACCA predicate violent felonies. It found that he had not under Beeman. A movant can meet his Beeman burden in one of two ways: first, by pointing to evidence in the record showing that the district court relied only on the residual clause in sentencing him–evidence which may include comments made by the parties, by the sentencing judge, or in the PSR; second, by showing that when he was sentenced, binding precedent clearly established that the predicate offense was a violent felony only under the ACCA’s residual clause.
Here, Pitts failed to identify anything in the sentencing transcript, PSR, or the remainder of the record indicating that the court relied on the residual clause, instead of the elements clause, in concluding that this 1978 California robbery conviction was a violent felony. Additionally, the Court found Pitts’s reference to multiple California cases unconvincing. Pitts’s reliance on United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015), is unavailing because it was decided six years after he was sentenced. Pitts’s reliance on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), was also unavailing, even though it was issued before Pitts was sentenced, because it does not establish that robbery under California law is not a violent felony for purposes of the ACCA. There, the 9th Circuit held that a conviction under California’s robbery statute would necessarily constitute either generic robbery or generic extortion. Thus, even if the district court might have concluded that the 1978 robbery was a violent felony under the residual clause, it could have been persuaded to find that the robbery was tantamount to extortion and therefore qualified under the enumerated offenses clause of 18 U.S.C. § 924(e)(2)(B).
At best then, it is unclear from the record whether the sentencing court relied on the residual clause or the elements clause or the enumerated offenses cause, or all three. As such, Pitts has failed to meet his burden and loses.