[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12096 ________________________

D.C. Docket Nos. 0:16-cv-61276-JIC; 0:09-cr-60141-JIC-1

IVORY VINCENT PITTS,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

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

(July 6, 2021) USCA11 Case: 18-12096 Date Filed: 07/06/2021 Page: 2 of 18

Before LUCK, ED CARNES, and MARCUS, Circuit Judges. ED CARNES, Circuit Judge:

Ivory Pitts appeals the denial of his second or successive 28 U.S.C. § 2255 motion, challenging his sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). He contends that two of the four convictions underlying that ACCA enhancement can no longer support it after the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015). Pitts is wrong as to at least one of those two, and that leaves three underlying convictions supporting the ACCA enhancement. Because three is enough, we affirm the denial of his second or successive § 2255 motion.

I. THE FACTS AND PROCEDURAL HISTORY

In June 2009 a federal grand jury indicted Ivory Pitts for distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1), and for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). In exchange for the government’s agreement to seek dismissal of the drug charge, Pitts pleaded guilty to the felon in possession charge. The district court accepted the plea and entered a judgment of conviction on that charge.

The 2009 presentence investigation report calculated a total offense level of 30 and a criminal history category of VI, which produced a guidelines range of 168 to 210 months. The PSR determined that Pitts’ prior convictions qualified him for 2 USCA11 Case: 18-12096 Date Filed: 07/06/2021 Page: 3 of 18

an enhanced sentence as an armed career criminal under 18 U.S.C. § 924(e). To support the ACCA enhancement, the PSR relied on four of Pitts’ prior convictions: (1) a 1978 California conviction for robbery with a firearm; (2) 1982 California convictions 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.1 Because the statutory mandatory minimum sentence was 15 years, that became the bottom of his guidelines range, resulting in a range of 180 to 210 months.

Pitts objected to the PSR’s use of his 1978 California robbery with a firearm conviction and his 2001 Florida drug conviction to enhance his sentence under the ACCA. He argued that there was insufficient evidence to establish that his 1978 conviction was for robbery with a firearm. The government responded that it would establish at sentencing that the 1978 robbery with a firearm and 2001 drug

1 Obviously, the PSR’s list adds up to five convictions instead of four. The disparity relates to the two 1982 California convictions, one for the robbery and another for a particularly brutal rape that was closely related and occurred on the same occasion. Pitts was convicted of two separate charges for those crimes: robbery and “rape by force,” and the judgment showed two convictions. But the PSR counted the rape and robbery as one conviction instead