IVORY VINCENT PITTS v. UNITED STATES OF AMERICA

Atlanta, Georgia - Criminal defense lawyer represented defendant with distribution of a controlled substance, and for being a felon in possession of a firearm and ammunition charges.



He now files an appeals challenging his sentencing enhancement under the Armed Career Criminal Act

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

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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 of two for

purposes of the ACCA enhancement. Consistent with that, the government took the position in

the district court, as it does here, that because of the different occasions requirement, see 18

U.S.C. § 924(e)(1) (requiring the previous convictions to have been "committed on occasions

different from one another”), only one of those two felonies could be counted for ACCA

purposes. We express no view about that position because, as will become evident later, whether

the rape and robbery are counted as one conviction or two does not affect the application of the

ACCA enhancement in this case. See infra at 9. For the sake of simplicity, however, in the

remainder of this opinion we will refer to this ACCA predicate conviction as "the 1982 robbery.”

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convictions were qualifying predicate offenses under the ACCA. It did just that,

introducing copies of the state court records for Pitts' 1978 California robbery

conviction; the National Crime Information Computer report on Pitts; a probation

officer's report; and a transcript of a sentencing hearing in that earlier state court

case. Pitts again objected. While conceding that he had been convicted of a crime

in California in 1978, he argued it wasn't the qualifying crime of robbery with a

firearm. Pitts did not contest that his other prior convictions –– the 1982 robbery

conviction and the 1993 drug conviction –– also qualified under the ACCA.

The district court did not alter any of the PSR findings. It overruled Pitts'

objections to use of the 1978 California robbery with a firearm conviction, finding

that in 1978 he had been convicted in California of robbery with a firearm, which

qualified as an ACCA predicate offense. It did not specify which ACCA clause it

relied on to determine that the robbery conviction was a "violent felony.” See

generally 18 U.S.C. § 924(e)(2)(B). The court also overruled Pitts' objections to

the use of the 2001 Florida drug offense, finding that it qualified as a serious drug

offense under the ACCA. The court also found, at least implicitly and as the PSR

had recommended, that the 1982 California robbery and the 1993 Florida drug

offense also counted under the ACCA. The result, by the district court's count,

was four qualifying prior convictions for purposes of ACCA enhancement, which

exceeded the statutory requirement of at least three. See 18 U.S.C. § 924(e)(1).

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Application of the ACCA increased Pitts' adjusted offense level, and as we

have mentioned, his guidelines range increased from 168–210 months

imprisonment to 180–210 months because of the 180-month ACCA mandatory

minimum sentence. The court imposed that mandatory minimum sentence.

Sentencing took place in 2009.

In his direct appeal, Pitts challenged the application of the ACCA. See

United States v. Pitts, 394 F. App'x 680 (11th Cir. 2010) (unpublished). He argued

"that the district court erred in: (1) determining that his 1978 California conviction

for robbery with a firearm qualified as a 'violent felony;' and (2) that his 2001

Florida cocaine conviction qualified as a 'serious drug offense' under the ACCA.”

Id. at 681. We concluded that the 1978 robbery conviction was for a violent felony

under the ACCA because the California robbery statute is categorically within the

definition of a violent felony. Id. at 683 (citing 18 U.S.C. § 924(e)(2)(B)(i)). We

also agreed with the district court that the record showed that the 2001 Florida

cocaine conviction qualified as a serious drug offense. Id. at 684. Having decided

that the ACCA enhancement was proper, we affirmed the sentence. Id.

The next year, 2011, Pitts filed a 28 U.S.C. § 2255 motion to vacate his

sentence, raising ineffective assistance of counsel claims that have nothing to do

with this appeal. The district court denied the § 2255 motion with prejudice.

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After Pitts lost on direct appeal and in his initial § 2255 motion, the Supreme

Court held that the ACCA's residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) is

unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015).

Later, it held that Johnson created a new substantive rule of constitutional law

made retroactively applicable to cases on collateral review. Welch v. United

States, 136 S. Ct. 1257, 1268 (2016).

Those developments prompted Pitts to file with this Court an application for

leave to file in the district court a second or successive § 2255 motion based on

Johnson. We granted him leave to proceed, and Pitts filed his second § 2255

motion in the district court in 2016.

The magistrate judge issued a report recommending dismissal of that

motion. The report accepted Pitts' argument that his two prior California robbery

convictions were no longer crimes of violence based on United States v. Dixon,

805 F.3d 1193 (9th Cir. 2015). But it also found that Pitts' California forcible rape

conviction was a violent felony under the ACCA, and that, adding it to his two

drug convictions, Pitts had three qualifying predicate convictions. As a result, the

report recommended that Pitts' ACCA enhancement was valid even after the

Johnson decision and his § 2255 motion should be denied. It also suggested that

the district court "may wish to grant a certificate of appealability issue as to

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whether California's robbery and forcible rape offenses constitute[] . . . crime[s] of

violence to support a § 924(e) ACCA enhancement post-Johnson.”

Pitts objected to the report and recommendation. He contended in the

district court that the magistrate judge should not have concluded that applying the

ACCA enhancement was correct. That was error, he argued, because California's

rape statute included sex by means of "duress,” which he asserted does not require

the use or threatened use of force.

In response to that argument, the district court noted that the duress

provision was added to California's statute in 1990, eight years after Pitts was

convicted of forcible rape. The court adopted the magistrate judge's

recommendation and denied Pitts' second § 2255 motion in 2018. The court also

denied a COA, rejecting the magistrate judge's suggestion that one be granted.

II. THE CERTIFICATE OF APPEALABILITY

Having lost in the district court and been denied a COA, Pitts moved for one

in this Court. We granted him one on the issue of whether his conviction for

forcible rape under the California Penal Code was a violent felony for purposes of

the ACCA, 18 U.S.C. § 924(e)(2)(B). As it turns out, however, that is not the

issue on which this appeal turns, or to which we turn to decide the appeal. The

COA that was granted overlooks the fact that regardless of the forcible rape

conviction, Pitts has two ACCA predicate convictions for serious drug offenses in

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addition to a 1978 robbery with a firearm conviction and a 1982 robbery

conviction.

If we decided the question posed in the COA that was issued, it would not

matter. If we were to decide that the forcible rape conviction was a violent felony

for ACCA purposes, Pitts would lose. And if we were to decide that it was not a

violent felony, he would also lose; he would lose because our decision that the rape

conviction did not count would not affect the counting of his robbery convictions.

Added to Pitts' two drug offenses, which are undisputed ACCA predicate

convictions, Pitts' two robbery convictions make four, which is one more than is

necessary for ACCA status. See 18 U.S.C. § 924(e)(1).

We could dismiss the COA as improvidently granted and dismiss the appeal

for that reason. But in their briefs to this Court and at oral argument, the

government and Pitts joined issue on whether the two robbery convictions were

improperly counted as ACCA predicate offenses in light of the Supreme Court's

Johnson decision. The government argues that they were properly counted as

ACCA-qualifying prior violent felonies notwithstanding Johnson. Pitts argues that

they are not. Given that he cannot, and does not, challenge that each of his two

Florida drug convictions qualify as "a serious drug offense” for ACCA purposes,

see 18 U.S.C. § 924(e)(1), Pitts must show that his two robbery convictions were

each improperly counted as "a violent felony,” id., in light of Johnson.

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Under these circumstances, we have the discretion to amend, revise, or

expand the COA to fit the dispositive issue in this case, which the parties have

briefed and orally argued to us. See Mays v. United States, 817 F.3d 728, 732–33

(11th Cir. 2016); Dell v. United States, 710 F.3d 1267, 1272 (11th Cir. 2013);

Thomas v. Crosby, 371 F.3d 782, 796 (11th Cir. 2004) (Tjoflat, J., concurring); cf.

Jennings v. Stephens, 135 S. Ct. 793, 802 (2015) (holding that no COA is required

for "the defense of a judgment on alternative grounds”); Castillo v. United States,

816 F.3d 1300, 1303 (11th Cir. 2016) ("We may affirm on any ground supported

by the record.”) (quotation marks omitted). Accordingly, we revise the COA to

specify the issue as: Has 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 felony offenses? We turn now to that

question.

III. DISCUSSION

We start with the basics. The ACCA provides that a person convicted of

being a felon in possession of a firearm under 18 U.S.C. § 922(g) and who "has

three previous convictions . . . for a violent felony or a serious drug offense, or

both, committed on occasions different from one another” is subject to a fifteenyear mandatory minimum sentence. 18 U.S.C. § 924(e)(1); see also Mays, 817

F.3d at 730. The "term 'violent felony' means any crime punishable by

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imprisonment for a term exceeding one year” that (1) "has as an element the use,

attempted use, or threatened use of physical force against the person of another”

(the elements clause), (2) "is burglary, arson, or extortion, [or] involves use of

explosives” (the enumerated clause), or (3) "otherwise involves conduct that

presents a serious potential risk of physical injury to another” (the residual clause).

18 U.S.C. § 924(e)(2)(B).

The Supreme Court has held that the ACCA's residual clause is

unconstitutionally vague. Johnson, 576 U.S. at 597–98, 606. And its invalidation

of the residual clause is a new substantive rule that applies retroactively to cases on

collateral review. Welch, 136 S. Ct. at 1268. But the Court has made clear that it

has "not call[ed] into question application of” the ACCA's elements clause or the

enumerated clause. Johnson, 576 U.S. at 606.

The result, as we have held, is that a § 2255 movant seeking to vacate his

sentence based on Johnson bears the burden of showing by a preponderance of the

evidence that he was sentenced as an armed career criminal "solely because of the

residual clause.” Beeman v. United States, 871 F.3d 1215, 1224 (11th Cir. 2017);

see also id. at 1225 (requiring the movant to show that "but for the residual clause

he would have received a different sentence”). "Only if the movant would not

have been sentenced as an armed career criminal absent the existence of the

residual clause is there a Johnson violation.” Id. at 1221. That means "[i]f it is just

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as likely that the sentencing court relied on the elements [clause] 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 use of the residual

clause.” Id. at 1222. And if the movant has failed to show that, he is not entitled

to have his sentence vacated under Johnson.

Pitts' two Florida drug convictions indisputably are "serious drug offenses.”

As a result, Pitts must show that the sentencing court based the ACCA

enhancement on a finding that his prior convictions for robbery counted as violent

felonies based solely on the residual clause. See Williams v. United States, 985

F.3d 813, 817 (11th Cir. 2021) ("[T]he sentencing court must have relied only on

the residual clause in qualifying the felony as violent.”); Tribue v. United States,

929 F.3d 1326, 1331 (11th Cir. 2019) (citing Beeman, 871 F.3d at 1221). We

begin (and, as it turns out, end) with Pitts' 1978 California conviction for robbery

with a firearm.

Whether a § 2255 movant was sentenced because of the residual clause is a

question of "historical fact,” and "[e]ach case must be judged on its own facts.”

Beeman, 871 F.3d at 1224 nn. 4–5. A § 2255 movant can meet his Beeman burden

in one of two ways. The first is by pointing to evidence in the record showing that

the district court relied only on the residual clause in sentencing him. Id. at 1224–

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25. That evidence may include comments made by the parties, by the sentencing

judge, or in the PSR. Id. at 1224 n.4. Pitts can't meet his burden in this way.

Consider the sentencing court's finding that his 1978 California conviction

for robbery with a firearm was a violent felony for ACCA purposes. Pitts has not

identified anything in the sentencing transcript, the PSR, or the remainder of the

record indicating that the court relied on the residual clause, instead of the

elements clause, in concluding that his 1978 California robbery conviction was a

violent felony.

There is one other way a § 2255 movant can meet his Beeman burden: He

can show that when he was sentenced, binding precedent clearly established that

the predicate offense was a violent felony only under the ACCA's residual clause.

See id. at 1224 n.5 ("[I]f 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 would strongly point to a sentencing per the residual

clause.”); see also Williams, 985 F.3d at 820 ("[A]bsent clear precedent showing

that the court could only have used one clause or another, merely persuasive

authority on the state of the law is insufficient to determine the sentencing court's

reasoning.”) (quotation marks omitted; original brackets); id. ("Absent authority

that would have compelled a particular result [at the time of sentencing, the

defendant] cannot meet his burden of proof through case law alone.”) (emphasis

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added). If there were binding precedent at the time of sentencing that would have

compelled the district court to rely on the residual clause and only the residual

clause, then we can conclude there is enough circumstantial evidence to find the

"historical fact” that it actually did so. See id. at 821.

To meet his Beeman burden for his robbery with a firearm conviction, Pitts

first points to United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015). But it doesn't

support his position. He must show what the law was at the time he was

sentenced, see Beeman, 871 F.3d at 1224 n.5, and a case decided in 2015, as Dixon

was, does not establish what the law was at the time of Pitts' sentencing six years

earlier, see United States v. Pickett, 916 F.3d 960, 966 (11th Cir. 2019) ("[C]ases

postdating the sentencing 'cast[] very little light, if any, on the key question of

historical fact.'”) (quoting Beeman, 871 F.3d at 1224 n.5) (original brackets).2

Pitts next points to United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.

2008).3

That decision, at least, was issued before Pitts was sentenced, but it

2 Pitts also relies on People v. Anderson, 252 P.3d 968 (Cal. 2011), for the proposition

that one can commit a California Penal Code § 211 robbery by negligently using force, which

would prevent § 211 from being a categorical match with the ACCA's definition of "violent

felony.” But the Anderson case was decided two years after Pitts was sentenced and could not

have influenced the sentencing court's decision.

3 Pitts is assuming that a decision of the Ninth Circuit interpreting California law can

establish what a sentencing court outside that circuit believed that California law was. We don't

think so. Ninth Circuit decisions aren't binding on any courts in this or any other circuit outside

of that one. And they are not binding on the California Supreme Court or any other state courts

anywhere. They don't bind any judge except lower federal court judges in the Ninth Circuit. See

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doesn't help him. In Becerril-Lopez the defendant appealed his conviction and

sentence for being a deported alien found in the United States. Id. at 885. At the

time Becerril-Lopez was sentenced, a defendant who illegally reentered the

country after deportation received a 16-level sentencing enhancement under

U.S.S.G. § 2L1.2(b) if he had previously been convicted of a "crime of violence.”

See id. at 885, 889. In Becerril-Lopez the sentencing court had applied that

enhancement based on Becerril-Lopez's prior conviction for robbery under

California Penal Code § 211, the same statute Pitts was convicted of violating. Id.

at 889. At the time Becerril-Lopez was decided (and at the time Pitts was

sentenced), California defined robbery as "the felonious taking of personal

property in the possession of another, from his person or immediate presence, and

Johnson v. United States, 559 U.S. 133, 138 (2010) (holding that "[w]e are . . . bound by the

Florida Supreme Court's interpretation of state law, including its determination of the elements

of” the Florida felony battery statute, in determining whether a conviction under that statute

"meets the definition of 'violent felony' in 18 U.S.C. § 924(e)(2)(B)(i) [the elements clause]”);

United States v. Conage, 976 F.3d 1244, 1249 (11th Cir. 2020) (explaining that in determining

whether a state conviction qualifies as a predicate offense under the ACCA "we are bound by

federal law when we interpret terms in the ACCA and bound by state law when we interpret

elements of state-law crimes”) (quotation marks omitted); United States v. Davis, 875 F.3d 592,

597 (11th Cir. 2017) ("We apply federal law in interpreting the ACCA, but state law in

determining the elements of state offenses, keeping in mind that state law is what the state

supreme court says it is.”); United States v. Braun, 801 F.3d 1301, 1303 (11th Cir. 2015) (same);

see also Johnson v. Fankell, 520 U.S. 911, 916 (1997) ("Neither this Court nor any other federal

tribunal has any authority to place a construction on a state statute different from the one

rendered by the highest court of the State.”).

Even if it were binding authority, however, the Becerril-Lopez decision would not affect

our decision in this case, so we will indulge Pitts' assumption and pretend that Becerril-Lopez

tells us what the district court that sentenced him in the Southern District of Florida in 2009 was

thinking at the time.

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against his will, accomplished by means of force or fear.” Cal. Penal Code § 211.

And California defined "fear” as, among other things, the "fear of an unlawful

injury to the person or property of the person robbed.” Id. § 212 (emphasis added).

Based on those definitions, the Ninth Circuit in Becerril-Lopez concluded that

robbery under § 211 can be accomplished by "mere threats to property.” See 541

F.3d at 891. That fact, the court concluded, meant that robbery under § 211 was

not categorically robbery under U.S.S.G. § 2L1.2. Id.

Pitts argues that given how broadly the Ninth Circuit has interpreted robbery

under § 211, he carried his Beeman burden of showing that precedent at the time of

his sentencing made clear that "only the residual clause would authorize a finding

that the prior [robbery] conviction was a violent felony.” Beeman, 871 F.3d at

1224 n.5. Pitts is correct that the court in Becerril-Lopez acknowledged that § 211

is broader than generic robbery, but that additional breadth is that it encompasses

threats to property, which equate to generic extortion, and the court recognized that

generic extortion is a crime of violence. See Becerril-Lopez, 541 F.3d at 891–92.

It held: "Takings through threats to property and other threats of unlawful injury

fall within generic extortion, which is also defined as a 'crime of violence.'” Id. at

891 (quoting U.S.S.G. § 2L1.2 cmt. 1(B)(iii)); see also id. (quoting Scheidler v.

Nat'l Org. for Women, Inc., 537 U.S. 393, 409 (2003)) (noting that the "Supreme

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Court has defined generic extortion as 'obtaining something of value from another

with his consent induced by the wrongful use of force, fear, or threats'”).

In the Ninth Circuit's view "if a conviction under . . . § 211 involved a threat

not encompassed by generic robbery, it would necessarily constitute generic

extortion.” Id. at 892. As a result, the Becerril-Lopez court held that "a conviction

under . . . § 211 could only result from conduct that constitutes a 'crime of

violence' for purposes of U.S.S.G. § 2L1.2”: either generic robbery or generic

extortion. See id. at 893 (emphasis added). The decision in that case does not

establish that robbery under California Penal Code § 211 is not a violent felony for

purposes of the ACCA. If anything, it establishes the contrary. See United States

v. Vail-Bailon, 868 F.3d 1293, 1298 n.8 (11th Cir. 2017) (en banc) ("The elements

clause of the ACCA is identical to the elements clause of § 2L1.2. Cases

construing the ACCA's elements clause are thus relevant to our inquiry here.”);

United States v. Green, 873 F.3d 846, 869 (11th Cir. 2017) ("The elements clause

defining a crime of violence in the Guidelines . . . is identical to the elements

clause defining a violent felony for ACCA purposes.”).

Becerril-Lopez does not make it more likely than not that the sentencing

court relied on only the residual clause. The ACCA lists extortion as a "violent

felony” in its enumerated offense clause. 18 U.S.C. § 924(e)(2)(B)(ii). And the

Ninth Circuit held in Becerril-Lopez that a conviction under California's robbery

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statute would "necessarily constitute” either generic robbery or generic extortion.

That means that even if the non-binding Becerril-Lopez decision had been binding

at the time the district court sentenced Pitts, it would not make any difference. It

wouldn't because Becerril-Lopez does not establish, even for the Ninth Circuit,

that a § 211 robbery is a violent felony only under the ACCA's residual clause.

4

In

sentencing Pitts, the district court might have concluded that the 1978 robbery was

a violent felony under the residual clause, but Beeman demands more than a

showing of a mere possibility that the residual clause was used. See 871 F.3d at

1221–22 & n.3 (rejecting the mere possibility approach). And if in sentencing Pitts

the district court had been persuaded by Becerril-Lopez's reasoning, it would have

found that the robbery was tantamount to extortion and qualified under the

enumerated offenses clause of 18 U.S.C. § 924(e)(2)(B).

4 The Ninth Circuit later backed away from Becerril-Lopez. See Dixon, 805 F.3d at 1196

("Generic extortion, which is an enumerated offense included in the ACCA's definition of

'violent felony,' is defined broadly enough to encompass many violations of . . . § 211, but not

all.”); United States v. Bankston, 901 F.3d 1100, 1104 (9th Cir. 2018) (holding that "California

robbery is . . . no longer a categorical match to a combination of Guidelines-described robbery

and extortion, and Becerril-Lopez's holding to the contrary no longer controls”). But those

decisions came years after the district court sentenced Pitts and could not have influenced the

court's reasoning. See Beeman, 871 F.3d at 1224 n.5.

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At best for Pitts, it is unclear from the record whether the sentencing court

relied on the residual clause or the elements clause or the enumerated offenses

clause, or all three of them, when it found that his 1978 California conviction for

robbery with a firearm was a violent felony under the ACCA. And, when it is

unclear what role, if any, the residual clause played, the movant loses. Williams,

985 F.3d at 821 ("The root problem here is that [the defendant] is relying on

circumstantial evidence which, when unclear, has little to no bearing on the

ultimate issue. . . . Because the authorities that [the defendant] cites are not clear,

they fail to shed light on what the sentencing court did as a matter of historical

fact.”); Beeman, 871 F.3d at 1224–25. The movant loses because "[i]f the

evidence is silent or in equipoise, then the party with the burden fails.” Williams,

985 F.3d at 821. That party is Pitts.

We need not determine whether the 1982 California robbery conviction also

qualifies as a prior "violent felony” for purposes of the ACCA because it doesn't

matter.

We AFFIRM the denial of Pitts’ § 2255 motion.