IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16710 ________________________

D.C. Docket No. 4:16-cv-00143-HLM

JEFFREY BERNARD BEEMAN,

Petitioner - Appellant, versus UNITED STATES OF AMERICA,

Respondent - Appellee.

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

Before ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES*, JILL PRYOR, NEWSOM and BRANCH, Circuit Judges.

* En banc polls are conducted of the “circuit judges of the circuit who are in regular active service” who are not disqualified. 28 U.S.C. § 46(c); Federal Rule of Appellate Procedure 35(a). At the time the poll was conducted in this case, Judge Julie Carnes was in regular active service and participated in it. She took senior status on June 18, 2018, which was after the poll had been completed. Case: 16-16710 Date Filed: 08/14/2018 Page: 2 of 31

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

2 Case: 16-16710 Date Filed: 08/14/2018 Page: 3 of 31

JULIE CARNES, Circuit Judge, respecting the denial of rehearing en banc:

A majority of the Court has voted not to rehear en banc our decision in Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017), in which the panel held that Beeman had failed to make the showing necessary to prevail on his 28 U.S.C. § 2255 motion for resentencing based on Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015). Johnson declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague, meaning that this clause cannot be used as the basis for imposing an enhanced sentence under the ACCA. As the movant, a § 2255 litigant has always been required to shoulder the burden of proving his claim. That being so, Beeman held that a § 2255 litigant who seeks to overturn his sentence on the ground that he was sentenced pursuant to the residual clause must actually prove that his sentence was based on that clause: a requirement that the panel majority thought to be rather obvious and unremarkable.

Dissenting as to the denial of en banc review of Beeman, Judge Martin, however, disagrees that a § 2255 litigant who raises a Johnson claim should be held to such a burden. Instead, our dissenting colleague seeks a new rule that would exempt Johnson § 2255 claimants from the standard that is applied to all other § 2255 litigants. As the author of the Beeman decision, I write in response to our dissenting colleague’s assertion that Beeman was wrongly decided. I. Background

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Following a search of his residence that uncovered, among other things, the presence of illegal drugs, drug paraphernalia, a rifle and pistol, and 31 rounds of ammunition, Jeffrey Beeman was convicted by a jury of cocaine possession with the intent to distribute and of being a felon in possession of a firearm and ammunition. The district court considered whether Beeman’s sentence as to the firearm and ammunition charges should be enhanced pursu