United States v. Copeland

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH April 23, 2019
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-5125
AARON EUGENE COPELAND,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. Nos. 4:16-CV-00490-CVE-PJC & 4:08-CR-00137-CVE-1)
_________________________________
Barry L. Derryberry, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender, Office of the Federal Public Defender, with him on the briefs), Tulsa,
Oklahoma, for Defendant - Appellant.
Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,
Northern District of Oklahoma, with her on the brief), Tulsa, Oklahoma for Plaintiff -
Appellee.
_________________________________
Before MATHESON, PHILLIPS, and EID, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
In 2008, Aaron Eugene Copeland pled guilty to being a felon in possession of
a firearm. The district court imposed an enhanced sentence of 15 years in prison
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on his
two prior drug offenses and one prior burglary. Mr. Copeland did not appeal. After
he brought several unsuccessful motions for habeas relief under 28 U.S.C. § 2255, we
authorized Mr. Copeland to bring a successive § 2255 motion to assert that his
sentence is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015), which
held that the ACCA’s definition of violent felony in its residual clause is
unconstitutionally vague.
Mr. Copeland’s § 2255 motion claimed the sentencing court relied on the
unconstitutional residual clause to find that his prior burglary was a violent felony
and therefore the court should not have enhanced his sentence. The district court
denied the motion, finding that it did not sentence Mr. Copeland under the residual
clause and that his motion accordingly could not rely on Johnson. Exercising
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), we reverse.
I. BACKGROUND
To help understand the facts and issues that Mr. Copeland’s § 2255 motion
presents, we sketch the legal landscape surrounding this case, including discussion of
the ACCA’s definitions of “violent felony,” the Supreme Court’s decision in
Johnson, and the requirements for bringing second and successive § 2255 motions.
We then describe the district court proceedings in 2008 leading to Mr. Copeland’s
sentence, followed by the § 2255 proceedings in 2017 leading to this appeal. We
present additional legal background later in the opinion.
2
A. Legal Landscape
The ACCA
It is a federal crime “for any person . . . who has been convicted in any court
of[] a crime punishable by imprisonment for a term exceeding one year . . . to . . .
possess . . . any firearm or ammunition.” 18 U.S.C. § 922(g). A violation of this
felon-in-possession statute usually carries a maximum penalty of 10 years in prison.
18 U.S.C. § 924(a)(2). But under the ACCA, a person who “has three previous
convictions . . . for a violent felony or serious drug offense, or both” is subject to a
minimum sentence of 15 years. 18 U.S.C. § 924(e).
This appeal concerns the meaning of “violent felony.” The ACCA defines a
“violent felony” as “any crime punishable by imprisonment for a term exceeding one
year” that also:
(1) “has as an element the use, attempted use, or threatened use of physical
force against the person of another,” id. § 924(e)(2)(B)(i)—the elements
clause;
(2) “is burglary, arson, or extortion, [or] involves the use of explosives,” id.
§ 924(e)(2)(B)(ii)—the enumerated clause; or
(3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another,” id. § 924(e)(2)(B)(ii)—the residual clause.
Only the enumerated and residual clauses are pertinent to this appeal. Note that
“burglary” is listed as one of the offenses in the enumerated clause.
Johnson v. United States
In 2015, the Supreme Court held in Johnson that the ACCA’s residual clause
is “unconstitutionally vague,” 135 S. Ct. at 2557, leaving only the elements and
3
enumerated clauses to define a violent felony. In 2016, the Court held in Welch v.
United States, 136 S. Ct. 1257 (2016), that Johnson “announced a substantive rule
that has retroactive effect in cases on collateral review.” Id. at 1268.
Section 2255 and Second or Successive Motions
A federal prisoner “claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution” may move the district court
that sentenced him “to vacate, set aside[,] or correct the sentence.” 28 U.S.C.
§ 2255(a). “Before a federal prisoner may file a second or successive motion under
§ 2255, the prisoner must first obtain an order from the appropriate court of appeals
authorizing the district court to consider the motion.” In re Cline, 531 F.3d 1249,
1250 (10th Cir. 2008) (per curiam); see 28 U.S.C. §§ 2244(b)(3), 2255(h).
A circuit court may authorize a second or successive § 2255 motion in two
circumstances. This appeal turns on one of them—whether the motion “contain[s]
. . . a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).1 “A
motion ‘contains’ a new rule of constitutional law, as required by § 2255(h), if the
claim for which authorization is sought ‘relies on’ the new rule.” United States v.
Murphy, 887 F.3d 1064, 1067 (10th Cir. 2018).
1
The other circumstance is when “newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would have found the
movant guilty of the offense.” 28 U.S.C. § 2255(h)(1).
4
A movant attempting to file a second or successive § 2255 motion must pass
two gates. The first is obtaining authorization from the circuit court to file the
motion, which requires only “a prima facie showing to the court of appeals that the
motion satisfies the requirements of § 2255(h), defined as a sufficient showing of
possible merit to warrant a fuller exploration by the district court.” Id. at 1068
(quotations omitted). The second requires “a determination by the district court that
the petition does, in fact, satisfy those requirements.” Id. This appeal concerns the
second gate.
B. Mr. Copeland’s Guilty Plea and Sentencing
In 2008, Mr. Copeland pled guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The following describes the
proceedings leading to his plea and sentence.
Change of Plea Hearing
At Mr. Copeland’s change of plea hearing, the district court and the parties
discussed whether Mr. Copeland had at least three prior offenses that qualified him
for an ACCA-enhanced sentence. The parties agreed that Mr. Copeland had two
predicate serious drug offenses. See ROA, Vol. II at 13-15.
The discussion turned to whether Mr. Copeland’s 1981 conviction in
California for second-degree burglary was a § 924(e) violent felony. Mr. Copeland’s
counsel said:
I’ve pulled the statutes there in California, and I was not able
to get the actual judgment and sentence. You have to do that
in writing, and it takes a lot of—a long time, more than I had.
5
But out of an abundance of caution, I certainly counseled Mr.
Copeland as to my concerns, and I hope I’m wrong.
Id. at 14. The district court then explained to Mr. Copeland,
[W]hat we’re talking about is whether . . . second-degree
burglary . . . meets the definition of a violent felony under the
Armed Career Criminal Act. We won’t know until the
probation officer and your attorney get all the records from
California, compare your conviction to the statute, compare it
to the [U.S. Sentencing Guidelines (“Guidelines”)] to
determine whether you fall under the act or not.
Id. at 15.2
The court asked the probation officer whether he had “any better information than
[the court or the parties] on whether or not [the § 924(e) enhancement] applie[d].” Id. at
16. The probation officer responded that he did not, but he added that, according to an
application note in U.S.S.G. § 4B1.4, “the definition of a crime of violence under the
[G]uidelines is different than the one in the statute. And the one in the [G]uidelines
limits burglaries to residential, but the one in the statute does not limit it.” Id. at 16. The
court asked, “So when we’re doing Armed Career Criminal Act, we’re going under the
statutory definition?” The probation officer affirmed the court’s understanding. Id.3
The district court advised Mr. Copeland again that the “burglary charge” was a
“sentencing factor[] that c[ould] enhance [his] sentence.” Id. at 28. Then Mr. Copeland
2
It is not clear why the court referred initially to the Guidelines.
3
As explained below, in 2008, the enumerated clause in the Guidelines
differed from the one in § 924(e)(2)(B)(ii), but the residual clause in the Guidelines
was identical to the one in § 924(e)(2)(B)(ii). See infra note 10. This suggests that
the court’s colloquy with the probation officer concerned the enumerated clause.
6
pled guilty, and the district court accepted his plea. Id. at 36-37. The court concluded the
proceedings by advising Mr. Copeland that the probation officer would prepare a
Presentence Investigation Report (“PSR”), “[a]nd if there are any issues, particularly with
regard to the Armed Career Criminal Act, we’ll have a sentencing hearing if that’s an
issue.” Id. at 37-38.
Presentence Investigation Report
The PSR reported that Mr. Copeland had been convicted in 1981 of “Burglary
Second Degree” in Oakland Superior Court and sentenced to one year in jail and
three years on probation. ROA, Vol. III at 7. It said Mr. Copeland and two other
men “used a water meter cover to break a window and enter” a California shoe store.
Id. “The trio stole 104 pairs of shoes, valued at a total of $2,600. They were
apprehended due to a witness observing them run out of the store carrying large
plastic bags and notifying police.” Id. The PSR did not reveal the source of this
information. See id.
The PSR advised that Mr. Copeland was “an armed career criminal under the
provisions of 18 U.S.C. § 924(e), due to his convictions for Burglary Second Degree”
and the two serious drug offenses. Id. at 6. It did not cite to which part of
§ 924(e)(2)(B)(ii)—the enumerated clause or the now-unconstitutional residual
clause—it relied on to categorize Mr. Copeland’s California second-degree burglary
conviction as a violent felony. See id.
7
Sentencing Hearing
At the sentencing hearing, Mr. Copeland, through counsel, stated he had no
objection to the PSR. ROA, Vol. II at 43-44. The district court accepted the PSR’s
findings of fact. Id. at 44. It then sentenced Mr. Copeland to 180 months in prison—
the statutory minimum under § 924(e)—and five years of supervised release. Id. at
50. The court did not address its basis for treating California second-degree burglary
as a violent felony.
C. Post-Conviction § 2255 Proceedings
Mr. Copeland did not appeal4 but filed several unsuccessful motions to
challenge his sentence under 28 U.S.C. § 2255.5 After Welch held that Johnson
applies retroactively on collateral review, we granted Mr. Copeland’s request to file a
successive § 2255 motion to challenge his sentence on the ground that it was based
on the ACCA’s unconstitutional residual clause, in violation of Johnson. In re
Copeland, No. 16-5075 (10th Cir. July 22, 2016). With this authorization, Mr.
4
Mr. Copeland’s failure to file a direct appeal raising a residual clause
vagueness claim does not foreclose his § 2255 motion. The Government has not
objected on this ground. And even assuming the procedural-default rule applies, a
“Johnson claim was not reasonably available during the time when [Mr. Copeland]
could have filed a direct appeal, and this is sufficient to establish cause. Moreover, if
[Mr. Copeland] is correct regarding his Johnson claim . . . . [he] has demonstrated
actual prejudice.” United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018)
(quotations omitted).
5
See In re Copeland, No. 15-5097 (10th Cir. Nov. 5, 2015); In re Copeland,
No. 14-5035 (10th Cir. April 17, 2014); United States v. Copeland, 539 F. App’x
918, 919 (10th Cir. 2013); United States v. Copeland, 509 F. App’x 760, 761 (10th
Cir. 2013); United States v. Copeland, No. 13-CV-0479-CVE-FHM, 2013 WL
4022062, at *1 (N.D. Okla. Aug. 6, 2013).
8
Copeland moved the district court under § 2255 to vacate, set aside, or correct his
sentence. ROA, Vol. I at 32.
The district court denied his motion. United States v. Copeland, No. 08-CR-
0137-CVE, 2017 WL 4819108, at *4 (N.D. Okla. Oct. 25, 2017). It found “there is
no possibility that [Mr. Copeland’s] burglary conviction was treated as a violent
felony under the residual clause.” Id. at *3. The court pointed to the discussion at
the change of plea hearing: “The [c]ourt advised [Mr. Copeland] that it would not
know if he qualified for sentencing under the ACCA until the probation office and
his attorney gathered the necessary records to determine if his conviction qualified as
a generic burglary.”6 Id. (emphasis added). The court concluded: “[T]he evidence is
clear that [Mr. Copeland’s] conviction for second[-]degree burglary was treated as a
violent felony under the enumerated offense clause of the ACCA.” Id.Because the court found in 2017 that it sentenced Mr. Copeland in 2008 under
the enumerated clause, it concluded that “Johnson has no application in this case”
and that any other arguments Mr. Copeland urged were beyond the scope of our
authorization of his successive § 2255 motion. Id. at *4.
The district court entered judgment against Mr. Copeland, and Mr. Copeland
timely appealed. See Fed. R. App. P. 4(a)(1)(B)(i). We granted a certificate of
appealability.
6
As we explain below, the transcript of the change of plea hearing shows that
the district court did not use the words “enumerated” or “generic.”
9
II. DISCUSSION
We begin with our standard of review and the burden of proof. We then
explain how courts determine whether there is sufficient evidence of Johnson error to
grant relief on a § 2255 motion. We conclude that Mr. Copeland has met his burden
to show his sentence was based on the residual clause.
A. Standard of Review and Movant’s Burden
Standard of Review – Johnson Error
The parties disagree about the standard of review. Mr. Copeland argues it is de
novo. Aplt. Reply Br. at 2. The Government contends we review the district court’s
findings for clear error and its conclusions of law de novo. Aplee. Br. at 7. Our cases, in
particular those addressing a district court’s denial of a § 2255 movant’s Johnson-error
claim, support Mr. Copeland’s position.
In recent cases, this court said, “On appeal from the denial of a § 2255 motion,
ordinarily we review the district court’s findings of fact for clear error and its conclusions
of law de novo.” United States v. Driscoll, 892 F.3d 1127, 1130 (10th Cir. 2018); United
States v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017) (same quotation); see also United
States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (similar quotation). This quotation
came from United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015), which in turn
quoted from United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). But Barrett
and Rushin, neither of which concerned Johnson-related claims, both said more—that
“where, as here, the district court does not hold an evidentiary hearing, but rather denies
the motion as a matter of law upon an uncontested trial record, our review is strictly de
10
novo.” Barrett, 797 F.3d at 1213 (quotations and brackets omitted); Rushin, 642 F.3d at
1302.
This court also recently said in United States v. Murphy, 887 F.3d 1064, 1068
(10th Cir. 2018), “We review the dismissal of a § 2255 motion de novo.” We cited
Snyder for this statement. Id. Shortly thereafter, in an appeal from a district court ruling
that the movant had failed to show he had a Johnson claim to satisfy § 2255(h)(2), the
panel, citing Murphy, again said, “We review the district court’s determination de novo.”
United States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018) (emphasis omitted).
We think the proper reading of these cases is that our review of a district court’s
denial of a § 2255 Johnson claim is de novo unless the court conducted an evidentiary
hearing from which it made findings. Unless the district court had the benefit of
observing live testimony in an evidentiary hearing, this court can review the sentencing
record and the relevant background law on equal footing with the district court.7
The de novo standard is consistent with our other recent § 2255 cases raising
Johnson-related claims. This court recently reaffirmed that we conduct a de novo review
of a denial of a § 2255 motion when the district court did not hold an evidentiary hearing.
United States v. Pullen, 913 F.3d 1270, 1275 (10th Cir. 2019) (quoting Barrett); United
States v. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017) (quoting Rushin).
7
To support its preferred standard of review, the Government quotes United
States v. Viera, 674 F.3d 1214 (10th Cir. 2012): this court “review[s] the district
court’s findings for clear error and its conclusions of law de novo.” Id. at 1217; see
Aplee. Br. at 7. But Viera quotes Rushin for this proposition, and, as noted above,
Rushin goes on to say that review is de novo when the district court has not held an
evidentiary hearing. 642 F.3d at 1302.
11
Standard of Review – Sentencing Record and Background Law
The Driscoll panel also addressed the standard of review for the two steps leading
to the ultimate determination of whether a sentencing court relied on the residual clause:
“[W]e review the [district court’s] factual determinations about the sentencing record for
clear error and the legal conclusions about the relevant background legal environment de
novo.” 892 F.3d at 1132-33. As applied to our consideration of the district court’s
analysis of the sentencing record, this statement is in tension with the rule that de novo
review applies when there was no district court evidentiary hearing. But, as the
discussion below shows, any such tension does not affect our disposition in this case.
Burden of Proof
The § 2255 movant bears the burden of proving by a preponderance of the
evidence that “it was use of the residual clause that led to the sentencing court’s
enhancement of his sentence.” Driscoll, 892 F.3d at 1135 (quotations omitted); see
also Washington, 890 F.3d at 895-96.
B. Legal Background
To determine whether the sentencing court relied on the residual clause, we
examine (1) “the sentencing record to confirm that ‘there is no mention whatsoever of the
residual clause in the PSR or any of the other sentencing court pleadings or transcripts,’”
and (2) “the ‘relevant background legal environment’ at the time of sentencing to
determine whether the district court would have needed to rely on the residual clause.’”
Driscoll, 892 F.3d at 1132 (quoting Snyder, 871 F.3d at 1130) (brackets omitted). It may
not be necessary to consult background law if the sentencing record “unambiguously”
12
shows the court relied on a clause other than the residual clause because background law
“is only useful insofar as it helps to show the most likely reasoning of the district court.”
Id. at 1132 n.2.
Sentencing Record
In previous cases, we have examined the sentencing record for (1) references
to the residual clause or another ACCA clause, see, e.g., Driscoll, 892 F.3d at 1133,
and (2) information about a movant’s prior convictions, Lewis, 904 F.3d at 871;
Washington, 890 F.3d at 896.
First, express “mention” of either the residual, elements, or enumerated clause8
by the sentencing judge at sentencing, in a court order, in a PSR adopted by the
sentencing judge, or in a party’s motion may be relevant and even sufficient to show
whether the sentencing court relied on the residual clause. See Driscoll, 892 F.3d
1133 n.2.
Second, facts about the movant’s previous convictions contained in the PSR,
sentencing hearing, or other parts of the district court docket, when viewed in light of
background law, can often enable a court to determine “whether the district court
relied on the residual clause in sentencing.” Washington, 890 F.3d at 896; see also
Lewis, 904 F.3d at 871-72.
8
We have used the word “mention,” or a variant thereof to describe review of
the record to assess Johnson error. See Driscoll, 892 F.3d at 1133; Murphy, 887 F.3d
at 1068; Snyder, 871 F.3d at 1128.
13
Nothing in our previous opinions excludes our review of any relevant evidence
in the sentencing record regarding whether the sentencing court relied on the residual
clause. For example, the court, the parties, or other participants in sentencing, such
as a probation officer, may have made statements consistent with use of a particular
clause. Until now, we have addressed this type of record evidence only in an
unpublished case, where we considered the sentencing judge’s comments in
concluding that the court relied on the enumerated clause to sentence the movant.
See United States v. Couchman, 720 F. App’x 501, 504-06 (10th Cir. 2018)
(unpublished).
Background Legal Environment
“[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of
what the controlling law was at the time of sentencing and does not take into account
post-sentencing decisions that may have clarified or corrected pre-sentencing
decisions.” Snyder, 871 F.3d at 1129. It includes case law (1) holding that particular
offenses qualify as violent felonies under specific ACCA clauses and (2) instructing
how to determine whether an offense qualifies. See id. at 1129-30.
The Driscoll decision explained that we examine the relevant background legal
environment at the time of sentencing “to determine whether the district court would
have needed to rely on the residual clause.” 892 F.3d at 1132. If the court’s “only
option was the residual clause” under the background law because it could not have
relied on the enumerated or elements clause, “we conclude that the sentencing court
must have relied on the residual clause.” Id. at 1135. When background law
14
foreclosing the enumerated or elements clause is coupled with a silent or ambiguous
record, the movant “has adequately shown it is more likely than not that the
sentencing court relied on the residual clause to enhance his sentence.” Id.
Accordingly, “[i]n Johnson cases . . . a court can often determine whether the
district court relied on the residual clause in sentencing by looking to the relevant
background legal environment that existed at the time of the [movant’s] sentencing
and the PSR and other relevant materials before the district court.” Washington, 890
F.3d at 896 (quotations and brackets omitted). The movant may meet his burden to
show the court relied on the residual clause by establishing that the background law
did not permit reliance on the other clauses. See Driscoll, 892 F.3d at 1135; see also
Beeman v. United States, 871 F.3d 1215, 1224 n.5 (11th Cir. 2017), cert. denied, No. 18-
6385, 2019 WL 659904 (U.S. Feb. 19, 2019) (“Certainly, 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 would strongly point to a sentencing
per the residual clause.”).
C. Analysis
The sentencing record does not explicitly mention which ACCA violent felony
clause the district court relied on to enhance Mr. Copeland’s sentence, though the change
of plea hearing contains statements pointing more to reliance on the enumerated clause
than the residual clause. The relevant background legal environment in 2008, however,
prevented reliance on the enumerated clause and allowed reliance on the residual clause.
Under these circumstances, we think our cases, especially Driscoll, require us to
15
conclude that the sentencing court must have relied on the residual clause. The district
court therefore erred in denying Mr. Copeland’s § 2255 motion, and because the error
was harmful, we reverse.
Sentencing Record
We recounted evidence from the sentencing record in the background section
above. As in Snyder, Washington, and Driscoll, the record does not include any
reference, explicit or implicit, to the residual clause, and Mr. Copeland does not contend
otherwise. It also does not include any explicit reference to the enumerated clause or
terms associated with the clause, such as “generic burglary.” But it is not silent, either.
The discussions at the change of plea hearing and the PSR’s description of the burglary
offense at least suggest the court relied on the enumerated clause. And the district
judge’s statement and finding in 2017 that she did so are consistent with that suggestion.
Nonetheless, the sentencing record is not clear.
a. Change of plea hearing
Although the sentencing record contains no direct statement of which ACCA
clause the court relied on to find Mr. Copeland’s offense to be a violent felony, two
exchanges at the change of plea hearing support an inference that the district court
sentenced Mr. Copeland under the enumerated clause.
First, Mr. Copeland’s counsel stated, “I’ve pulled the statutes there in
California, and I was not able to get the actual judgment and sentence. You have to
do that in writing . . . .” ROA, Vol. II at 14. A few moments later, the district court
said to Mr. Copeland, “We won’t know [whether California second-degree burglary
16
is a violent felony] until the probation officer and your attorney get all the records
from California, compare your conviction to the statute, compare it to the sentencing
guidelines to determine whether you fall under the act or not.” Id. at 15.
The records mentioned in the court’s statement were likely intended to
determine whether Mr. Copeland’s burglary conviction was an offense under the
enumerated clause rather than the residual clause. This is so because the law in 2008,
as we explain below, (1) was certain that records could be used for an enumerated
clause determination, and (2) was less certain whether the court could use records of
a prior burglary conviction to determine that a prior offense was a violent felony
under the residual clause, United States v. Maldonado, 696 F.3d 1095, 1099 (10th
Cir. 2012) (stating the issue was undecided in the Tenth Circuit before 2012).9
Second, the district court asked whether the probation officer had “any better
information . . . on whether or not [the § 924(e) enhancement] applie[d].” ROA, Vol.
II at 16. The probation officer pointed to the differences between the enumerated
clauses in § 4B1.2(a) of the Guidelines and in the ACCA, noting that the ACCA
clause was not confined to residential burglaries and the Guidelines clause was. The
court responded, “So when we’re doing the Armed Career Criminal Act, we’re going
under the statutory definition?” Id. at 16. This exchange suggests the district court
shared the probation officer’s understanding that the definition of generic burglary
9
Although cases like Snyder and Driscoll appear to suggest that we should
examine the sentencing record and the relevant background law as separate sequential
steps, in some instances, as in the discussion above, we must refer to background law to
explain the relevance of certain sentencing record facts.
17
under the enumerated clause mattered to Mr. Copeland’s sentencing. Only the
enumerated clause differed between the statute and the Guidelines—there would have
been no need to consider the difference to apply the residual clause.10
b. Sentencing hearing
At sentencing, Mr. Copeland did not object to the PSR, which described his
prior burglary offense as breaking and entering a structure with intent to steal—the
elements of generic burglary. Neither the court nor the parties commented on the
application of the ACCA, and the court “accept[ed] the [PSR] as its findings of fact.”
ROA, Vol. II at 44. The record does not show that the parties’ or the court’s
understanding of the basis for an ACCA sentence changed in the three months
between the change of plea hearing and the sentencing hearing. As discussed above,
at the change of plea hearing the court suggested that the enumerated clause would be
the basis for enhancing the sentence for the prior burglary. The PSR’s description of
the burglary conviction confirmed that basis, and Mr. Copeland did not object to the
PSR. No one mentioned the residual clause. Accordingly, the record indicates the
court relied on the enumerated clause in sentencing Mr. Copeland under the ACCA.
10
In 2008, the Guidelines defined “crime of violence” to mean an offense
“punishable by imprisonment for a term exceeding one year,” U.S.S.G. § 4B1.2(a)
(2008), that meets one of three criteria: (1) “has as an element the use attempted use
or threatened use of physical force against the person of another,” id. § 4B1.2(a)(1);
(2) “is burglary of a dwelling, arson or extortion, [or] involves use of explosives,” id.
§ 4B1.2(a)(2); (3) “otherwise involves conduct that presents a serious potential risk
of physical injury to another,” id.
18
But, as we discuss next, the sentencing record is not as clear as the district court
concluded.
c. Ambiguous sentencing record
The district judge who denied Mr. Copeland’s § 2255 motion in 2017 was the
same judge who sentenced him in 2008. Because the district court did not specify
whether its denial of Mr. Copeland’s § 2255 motion was based at all on the judge’s
memory of the 2008 sentencing, we limit our review of the sentencing record to the
transcripts of the change of plea sentencing hearings and to the PSR.11 As explained
below, we read that record as less conclusive about the basis for the ACCA
sentencing enhancement than the district court’s reading.
When it denied Mr. Copeland’s § 2255 motion in 2017, the district court found
that the sentencing record in 2008 unambiguously showed that it relied on the
enumerated clause and not the residual clause to determine that Mr. Copeland’s
burglary conviction was an ACCA violent felony. The court said, “[T]here is no
possibility that [Mr. Copeland’s] burglary conviction was treated as a violent felony
under the residual clause.” Copeland, 2017 WL 4819108, at *3. It also said, “[T]he
evidence is clear that [Mr. Copeland’s] conviction for second[-]degree burglary was
treated as a violent felony under the enumerated offense clause of the ACCA.” Id.11
But see United States v. Scully, 798 F.2d 411, 412 (10th Cir. 1986)
(“Appellate courts have approved a district judge’s reliance on . . . memory to rule on
the merits of a § 2255 motion where [the judge] supplements the record with personal
knowledge in situations where the record does not reflect one way or another whether
a defendant’s allegations have any validity.”).
19
The record, however, is not so clear. The district court said in 2017 that “[t]he
[c]ourt advised [Mr. Copeland in 2008] that it would not know if he qualified for
sentencing under the ACCA until the probation office and his attorney gathered the
necessary records to determine if his conviction qualified as a generic burglary.”
Copeland, 2017 WL 4819108, at *3 (emphasis added). But while the transcript of
the change of plea hearing does not rule out that the district court had generic
burglary in mind, the transcript does not contain a specific reference to “generic
burglary” or to the enumerated clause.
Based on our review, the district court could have plausibly found from the
sentencing record that it had relied on the enumerated clause rather than the residual
clause. But we take issue with the district court’s conclusion that the sentencing
record unambiguously supports this finding. The sentencing record, without any
reference to the residual clause and only inferential references to the enumerated
clause, is ambiguous.
The district court in 2017 did not address the relevant background legal
environment at the time of sentencing. But because the sentencing record is
ambiguous, we turn next to examine the relevant background law to inform our
analysis of whether the district court relied on the residual clause when it enhanced
Mr. Copeland’s sentence. See Driscoll, 892 F.3d at 1132 n.2 (explaining that “when
20
. . . we are presented with an ambiguous sentencing record,” we examine the relevant
background law “to show the most likely reasoning of the sentencing court”).12
Background legal environment
As the following discussion shows, the relevant background law at the time of
Mr. Copeland’s sentencing in 2008 supports a finding that the district court could
only have relied on the residual clause to determine that his California burglary
conviction was a violent felony under the ACCA.
Taylor v. United States, 495 U.S. 575 (1990), was the primary source of relevant
background law in 2008. Taylor used California burglary as an example of a crime that
is broader than generic burglary and that could not generally qualify as an enumerated
clause predicate offense. Id. at 591, 599. But Taylor also said that a burglary conviction
could qualify when the charging documents showed that the prior offense fell within the
definition of generic burglary. Id. at 602. As we show below, however, additional
background law about use of PSRs that contain information about a prior offense
combined with the record in this case would have prevented the sentencing court’s
reliance on the enumerated clause.
12
In our previous discussion of the standard of review, we noted that this court
in Driscoll said that “we review the factual determinations about the sentencing
record for clear error and the legal conclusions about the relevant background legal
environment de novo.” 892 F.3d at 1132-33. We also noted our cases generally call
for de novo review when, as here, the district court did not conduct an evidentiary
hearing. This apparent tension does not affect our analysis of the sentencing record.
Under either clear error or de novo review, the district court may not have erred in
concluding that the sentencing record showed it had relied on the enumerated clause,
but it did err in concluding that the record showed it had unambiguously relied on the
enumerated clause.
21
a. California burglary and generic burglary
In Taylor, the Supreme Court held that a prior burglary conviction qualified as
an ACCA predicate when the underlying statute required proof of all elements of
generic burglary—“an unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime.” Id. at 598. If the statute
swept more broadly than generic burglary, the prior conviction was not categorically
an ACCA predicate under the enumerated clause. Id. at 599. Two features of the
California burglary statute placed it outside the generic burglary definition.13 First, it
did not require unlawful entry: “California defines ‘burglary’ so broadly as to
include shoplifting . . . .” Taylor, 495 U.S. at 591. Second, it criminalized entry into
places other than buildings. Id. at 599. Accordingly, a conviction for California
burglary—in either the first or second degree—could not categorically be an ACCA
predicate under the enumerated clause. Id. at 591; see United States v. Strahl, 958
13
When Mr. Copeland was convicted of California second-degree burglary,
California Penal Code § 459 defined burglary as follows:
Every person who enters any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse,
or other building, tent, vessel, railroad car, trailer coach, . . .
inhabited camper, . . . vehicle . . . , aircraft . . . , mine or any
underground portion thereof, with intent to commit grand or
petit larceny or any felony is guilty of burglary. As used in
this chapter, “inhabited” means currently being use for
dwelling purposes, whether occupied or not.
Cal. Penal Code § 459 (1981) (emphasis added). Burglary of inhabited dwelling
houses and various other inhabited places was burglary in the first degree. Id.§ 460(1). “All other kinds of burglary [were] of the second degree.” Id. § 460(2).
The statute has been amended several times, and the current version includes
additional locations that may be burglarized. See Cal. Penal Code § 459.
22
F.2d 980, 983 (10th Cir. 1992), overruling on other grounds recognized by United
States v. Trent, 767 F.3d 1046, 1058 n.2 (10th Cir. 2014).
b. California burglary convictions on charges limited to elements of generic
burglary
In Taylor, the Supreme Court said that a sentencing court could “go beyond
the mere fact of conviction in a narrow range of cases where a jury was actually
required to find all the elements of generic burglary” to determine whether a prior
burglary offense qualified as an ACCA predicate under the enumerated clause. Id. at
602. Because the sentencing court’s task was to determine the elements of the
burglary conviction and not “the facts underlying [it],” id. at 600, it could consult
only limited sources. These sources included the indictment or information and jury
instructions. Id. at 602. In Shepard v. United States, 544 U.S. 13 (2005), the
Supreme Court held this determination could be made about convictions following
guilty pleas, and it expanded the list of permissible documents to include a “written
plea agreement, transcript of [the] plea colloquy, and any explicit factual findings by
the trial judge to which the defendant assented.” Id. at 26; see also United States v.
Barney, 955 F.2d 635, 639 (10th Cir. 1992). We refer to these materials as Shepard
documents.14
14
We did not use the phrase “Shepard documents” until 2012. See United
States v. Cartwright, 678 F.3d 907, 918 n.4 (2012). But this shorthand phrase is
consistent with the background legal environment when Mr. Copeland was sentenced.
23
c. Use of a PSR to show elements of generic burglary
Although a sentencing court in 2008 could use Shepard documents to find that a
conviction for California burglary fit within the definition of generic burglary, was it
permissible to rely instead on a PSR’s description of the burglary offense? The sparse
case law at the time permitted a court to do so only when the PSR itself relied on Shepard
documents.
In United States v. Perez-Vargas, 414 F.3d 1282, 1283 (10th Cir. 2005),15 decided
four months after Shepard, the defendant challenged his sentence on direct appeal,
arguing the district court erred when it enhanced his Guidelines offense level based on
finding that his Colorado assault conviction was a crime of violence. Id. at 1283. This
court reversed, holding that the sentencing court’s reliance on the PSR’s description of
the assault offense was insufficient. Id. at 1285-87. The description must be “supported
by proof allowable under Taylor and Shepard.” Id. at 1285. The appellate record lacked
“the ‘court documents’ relied on by the PSR. We thus [could not] evaluate whether the
records would be acceptable under the strictures of Supreme Court precedent.” Id.Perez-Vargas provided, therefore, that when Mr. Copeland was sentenced, a court
could rely on a PSR’s description of a prior crime to find it was an enumerated-clause
offense, but only when the PSR was backed by “proof allowable under Taylor and
Shepard.” See id.15
Perez-Vargas has been overruled on other grounds. United States v.
Bettcher, 911 F.3d 1040, 1041 n.1 (10th Cir. 2018).
24
The Government states that we can find relevant background law about reliance on
PSRs in a passage from our 2018 decision in United States v. Washington: “[T]his court
. . . upheld a district court’s reliance on a PSR in enhancing a sentence under the ACCA
where the PSR was based in part on court records and the defendant did not object to the
PSR.” 890 F.3d at 897 n.6. The court cited United States v. Harris, 447 F.3d 1300,
1305-06 (10th Cir. 2006), for this statement. Harris, however, was not directly on point
to Mr. Copeland’s sentencing because it upheld a district court’s reliance on a PSR to
determine whether prior ACCA predicate crimes were committed on different occasions,
not whether they were violent felonies. Id. at 1305-06.16
Perez-Vargas appears to supply the most pertinent background legal authority
on when a court in the Tenth Circuit in 2008 could rely on a PSR to make an ACCA
enumeration-clause determination. But even under Washington’s take on Harris, a
court would have needed more than a defendant’s failure to object to a PSR’s
description of a prior offense. There must be some proof that the PSR relied on court
records before its description could serve as the basis for an enumerated-clause
offense finding.17
16
Determining whether a conviction is a crime of violence or a violent felony
requires “a formal categorical approach, looking only to the statutory definitions of
the prior offenses, and not to the particular facts underlying those convictions,”
Perez-Vargas, 414 F.3d at 1284, while determining whether prior convictions were
committed on different occasions is a finding of fact similar to other factual
determinations judges make in sentencing, United States v. Michel, 446 F.3d 1122,
1132-33 (10th Cir. 2006).
17
Mr. Copeland urges us to consider Descamps v. United States, 570 U.S. 254(2013), as part of the background legal environment, arguing it removed the modified
25
d. California burglary and the residual clause
In 2008, background law regarding California burglary and the residual clause
was undeveloped in the Tenth Circuit. In our 2012 Maldonado decision, we said that
“[t]his circuit has not yet determined whether California’s first[-]degree burglary
offense is a violent felony.” 696 F.3d at 1098.18 Although “[n]either the Supreme
Court nor the Tenth Circuit ha[d] addressed whether [first-degree California
burglary] is a violent felony under the residual clause” of the ACCA, Maldonado,
696 F.3d at 1099, we had held that second-degree California burglary was not a crime
of violence under the residual clause of U.S.S.G. § 4B1.2(1)(ii), United States v.
Smith, 10 F.3d 724, 733 (10th Cir. 1993) (per curiam),19 which, as noted above, was
worded identically to the ACCA residual clause. Mr. Copeland has not cited, and we
have not found, case law from the Supreme Court, the Tenth Circuit, or other circuits
categorical approach from consideration of his prior burglary offense. We decline to
do so because we must consider only the relevant background law in 2008 when Mr.
Copeland was sentenced. See Snyder, 871 F.3d at 1129.
18
We held that California first-degree burglary was a violent felony under the
ACCA residual clause, a holding that would not be allowed after the Supreme
Court’s decision in Johnson that the ACCA residual clause is unconstitutionally
vague.
19
In Smith we acknowledged “[t]his view”—that second-degree burglary is not
a crime of violence—“is diametrically opposed to the position taken by Congress” in
the ACCA. 10 F.3d at 732. Smith interpreted Congress as “stat[ing] that every
burglary inherently presents a serious potential risk of physical injury to another.”
Id.This view later found support in Leocal v. Ashcroft, 543 U.S. 1 (2004): “A
burglary would be covered under [the definition of crime of violence in 18 U.S.C.]
§ 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar
will use force against a victim in completing the crime.” Id. at 10.
26
as of 2008 holding that a second-degree California burglary conviction could be an
ACCA residual clause offense.20
Nonetheless, the Supreme Court’s 1990 decision in Taylor kept the door open to
finding second-degree California burglary to be a residual clause offense:
Our present concern is only to determine what offenses
should count as “burglaries” for enhancement purposes. The
Government remains free to argue that any offense—
including offenses similar to generic burglary—should count
towards enhancement as one that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another” under § 924(e)(2)(B)(ii).
495 U.S. at 600 n.9.
The Sentencing Record and the Background Law
The sentencing record and the relevant background law stand in tension. The
residual clause was not mentioned in the sentencing record. The enumerated clause and
“generic burglary” were not explicitly mentioned, either. But the discussions at the
change of plea hearing about obtaining the burglary conviction records and about the
difference between the enumerated clauses in the ACCA and the Guidelines suggested
the court was contemplating an enumerated-clause sentence. The description of the
burglary offense in the PSR was consistent with generic burglary.
In 2017, when the district court denied the § 2255 motion, the judge read the 2008
transcript as evincing reliance on the enumerated clause. As discussed above, the
20
Mr. Copeland did cite, however, James v. United States, 550 U.S. 192(2007) (applying ACCA residual clause to Florida attempted burglary); and United
States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 1993) (applying residual clause in 18
U.S.C. § 16(b) to Texas burglary).
27
sentencing record does not “reveal[] the sentencing court unambiguously relied on a
clause other than the residual clause to enhance [Mr. Copeland’s] sentence under the
ACCA.” Driscoll, 892 F.3d at 1132 n.2 (emphasis added). The court made no “clear
pronouncement.” Lewis, 904 F.3d at 871. Nonetheless, the record still points to the
enumerated clause as the basis for enhancement.
By contrast, the relevant background law in 2008 permitted the court to rely on the
enumerated clause only if Shepard documents or a PSR referring to them showed that the
prior offense was generic burglary. But there were no Shepard documents in the record.
Although the law regarding the use of Shepard documents was in its infancy, the few
relevant Tenth Circuit cases as of 2008 provided that the PSR at least needed to state it
relied on Shepard documents for its description of the offense to serve as the basis for a
generic burglary finding. See Perez-Vargas, 414 F.3d at 1285.
The relevant background law in 2008 lacked a decision holding that second-
degree California burglary qualified as a violent felony under the ACCA residual
clause. See Washington, 890 F.3d at 897 (stating the movant “cites no authority
indicating . . . second-degree burglary also qualified under the ACCA’s residual
clause”). But Taylor kept the door open to that possibility.
The Driscoll opinion’s analysis of Mr. Driscoll’s Nebraska burglary conviction is
instructive. Although the sentencing court had the “information”—the charging
document—underlying the conviction, that document did not show that Mr. Driscoll had
“burglarized a ‘building or structure’ within the generic definition of burglary.” 892 F.3d
at 1134. The sentencing court could not have known whether he was prosecuted for
28
burglarizing a building and therefore “could not have relied on the enumerated offenses
clause because that would have violated Taylor.” Id. at 1135. Because the sentencing
record was ambiguous “as to whether the sentencing court relied on the residual clause to
enhance [Mr.] Driscoll’s sentence,” we concluded, based on the legal environment, that
“the sentencing court must have relied on the residual clause, as any reliance on the
enumerated offenses clause would have violated Taylor.” Id.
As in Driscoll, the sentencing record here did not expressly mention the
enumerated or the residual clauses. The court never used the words “enumerated clause”
or “generic burglary.” At the change of plea hearing, the court’s colloquies with the
lawyers and the probation officer indicated potential reliance on the enumerated clause—
far from conclusive or unambiguous evidence. The hearing occurred three months before
sentencing. In the intervening period, the court could have picked a different basis for its
sentence based on research, information (or lack of information) about Mr. Copeland’s
prior conviction, or further reflection.
Although Mr. Copeland’s sentencing record points more to the enumerated
clause than the record did in Driscoll, Driscoll’s conclusion that the sentencing court
“must have relied on the residual clause” due to the relevant background law, 892
F.3d at 1135, determines the outcome here. Notwithstanding clues from the change
of plea hearing that the court was contemplating the enumerated clause, the
applicable law allowed an ACCA sentencing enhancement for the burglary
conviction only under the residual clause. The background law points more strongly
toward the court’s use of the residual clause than the sentencing record points toward
29
its use of the enumerated clause.21 It shows the sentencing court, with no Shepard
documents to find “generic burglary,” could not have relied on the enumerated clause
but could have relied on the residual clause. As a result, Mr. Copeland “has
adequately shown it is more likely than not that the sentencing court relied on the
residual clause to enhance his sentence.” Id.22
This conclusion has two consequences. First, it means Mr. Copeland has satisfied
the requirements of 28 U.S.C. § 2255(h)(2) for a second or successive § 2255 motion by
showing that his claim relies on the “new rule of constitutional law” recognized in
21
The combination of the sentencing record and the relevant background law in
this case stops short of a circumstance where (1) a sentencing court unambiguously stated
that it relied on the ACCA enumerated or elements clause to enhance the sentence, and
(2) the relevant background law at the time of sentencing precluded reliance on the
enumerated or elements clause but allowed reliance on the residual clause.
We said in Driscoll that we “might” not need to consider the background law
when the sentencing court has unambiguously relied on a clause other than the residual
clause. Driscoll, 892 F.3d at 1132 n.2. But we have not explained when and how we
should consider the background law in that circumstance and when we should not.
If we do not consider the background law in this scenario, the movant has failed to
show a Johnson error, even though, under the law at the time of sentencing, the only
legally permissible way to enhance the sentence would have been to rely on the residual
clause. If we do consider the background law, would we say that the court could not
have relied on the enumerated clause, even though the court said it did, and that the
prisoner has shown a Johnson error?
Because this scenario does not describe our case, we do not attempt to resolve it.
We mention it here, however, because we recognized the difficulty of this question while
analyzing our case.
22
We recently explained: “If, on the other hand, the sentencing court would
have been unable to rely on the enumerated-offenses clause or the elements clause at
the time of sentencing because doing so would have violated then-controlling law, we
may instead deduce that the sentencing court must have relied on the residual
clause.” United States v. Neely, No. 17-8087, 2019 WL 761556, at *2 (10th Cir. Feb.
20, 2019) (unpublished) (quotations omitted).
30
Johnson that Welch “made retroactive to cases on collateral review.”23 Second, it means
that the district court committed a Johnson error in 2008 when it based Mr. Copeland’s
sentence on the now-unconstitutional residual clause. We turn next to whether that error
was harmless.
Harmless Error Analysis
Even when a sentencing court erred by relying on the ACCA’s residual clause
to enhance a sentence, we will grant habeas relief only if the error “‘had substantial
and injurious effect or influence in determining’ his sentence.” Driscoll, 892 F.3d at
1135 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). More precisely,
“[W]ould a sentencing judge, applying current law, determine that the movant’s
conviction(s) still qualifies as a crime of violence under one or both of the still-valid
ACCA clauses and resentence him to the same length of imprisonment?” Lewis, 904
F.3d at 873. If the answer is yes, we consider the error harmless. Id. “The
government bears the burden of proof on this issue.” Id. at 872 (quoting United
States v. Wilfong, 733 F. App’x 920, 927 (10th Cir. 2018) (unpublished)).
Applying “current law” to the harmless error analysis, id. at 873, we turn to
Descamps v. United States, 570 U.S. 254 (2013). In Descamps, the Supreme Court
said the California burglary statute does not list alternative elements, id. at 264, and
therefore “a conviction under that statute is never for generic burglary,” id. at 277.
23
This is contrary to the district court’s conclusion that Mr. Copeland “has not
asserted a claim for relief under Johnson,” Copeland, 2017 WL 4819108, at *4,
which we take to be the court’s determination that Mr. Copeland could not pass the
second gate for a second or successive § 2255 motion.
31
Accordingly, a conviction under the California burglary statute is not an ACCA
predicate. It fails under the elements clause because it lacks “as an element the use,
attempted use, or threatened use of physical force against the person of another,”
compare 18 U.S.C. § 924(e), with Cal. Penal Code § 459; fails under the enumerated
clause after Descamps, see 570 U.S. at 264; and cannot qualify under the residual
clause because that clause is “unconstitutionally vague,” Johnson, 135 S. Ct. at 2557.
Mr. Copeland had only two ACCA predicate offenses in 2008—his two drug
convictions. He lacks the required third ACCA predicate for an enhanced sentence
because his California second-degree burglary does not qualify. He thus may not be
sentenced, today, under the ACCA. The error in his 2008 sentence is therefore
harmful.
III. CONCLUSION
Because Mr. Copeland has shown the district court relied on the residual
clause when it sentenced him in 2008 and that his successive § 2255 motion relies on
Johnson, he has passed the second gate of § 2255(h)(2) review. He further has
shown that he should prevail on the merits.
We therefore reverse the district court’s dismissal of Mr. Copeland’s § 2255
motion and remand with instructions to grant the motion to vacate, set aside the
sentence, and resentence Mr. Copeland consistent with this opinion. In view of the
potential consequence of this decision to Mr. Copeland’s custodial status, the
mandate shall issue forthwith to enable the district court to conduct further
32
proceedings on a prompt basis. Should the Government wish to petition for panel or
en banc rehearing, we will consider a motion to recall the mandate.
33