921 F.3d 1233
10th Cir.2019Background
- In 2008 Copeland pleaded guilty to being a felon in possession of a firearm and was sentenced to the 15-year ACCA mandatory minimum based on two prior drug convictions and a 1981 California second-degree burglary conviction.
- At the change-of-plea hearing the court and parties discussed obtaining California records to determine whether the burglary qualified as "generic burglary;" the PSR described the burglary facts but did not cite which ACCA clause (enumerated or residual) it relied on.
- Copeland did not appeal his 2008 conviction; after Johnson (2015) held the ACCA residual clause void for vagueness and Welch made that rule retroactive, this court authorized Copeland to file a successive § 2255 motion asserting Johnson error.
- The district court denied the § 2255 motion in 2017, finding it had sentenced Copeland under the ACCA enumerated (generic burglary) clause and thus Johnson did not apply; Copeland appealed and a COA was granted.
- On appeal the Tenth Circuit examined (1) the sentencing record (plea colloquy, PSR, sentencing transcript) and (2) the relevant background law at the time of sentencing to decide whether the district court relied on the now-invalid residual clause.
- The panel concluded the record was ambiguous and that 2008 background law would have precluded treating Copeland’s California burglary as an enumerated (generic) burglary absent Shepard-compliant records, so the sentencing court must have relied on the residual clause. Because California burglary is not generic under Descamps, Copeland lacked a third ACCA predicate and the error was harmful.
Issues
| Issue | Copeland's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the sentencing court relied on the ACCA residual clause when imposing the ACCA enhancement | The sentencing record is ambiguous and, given 2008 background law, the court must have relied on the residual clause | The sentencing record and the district court’s 2017 finding show the court relied on the enumerated (generic burglary) clause | Court: record ambiguous; background law in 2008 made enumerated-clause reliance legally unavailable without Shepard documents, so the sentencing court must have relied on the residual clause |
| Whether Copeland’s successive § 2255 motion was authorized under 28 U.S.C. § 2255(h)(2) (Johnson-based claim) | Johnson announced a new, retroactive rule that Copeland relies upon | Argues the sentencing record shows no Johnson error so § 2255(h)(2) authorization does not support relief | Court: Copeland’s claim relies on Johnson and satisfies § 2255(h)(2); second-gate § 2255 review met |
| Harmless-error: Would Copeland still qualify for ACCA under current law (post-Descamps and Johnson)? | Under current law (Descamps + Johnson) California second-degree burglary is not an ACCA predicate; Copeland lacks a third predicate | Government bears burden to show sentence would remain under current law | Court: Error was not harmless; Descamps forecloses treating California burglary as generic and Johnson invalidates the residual clause, so Copeland lacks a third ACCA predicate and is entitled to vacatur and resentencing |
| Standard of review for § 2255 Johnson claims where no evidentiary hearing was held | De novo review of district court’s denial when no evidentiary hearing occurred | Government urged clear-error for factual findings but conceded law is reviewed de novo | Court: Review is de novo when no evidentiary hearing; factual determinations from record reviewed for clear error but ultimate question resolved de novo |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (holding ACCA residual clause unconstitutionally vague)
- Descamps v. United States, 570 U.S. 254 (2013) (California burglary statute is not divisible; convictions under it cannot count as generic burglary)
- Taylor v. United States, 495 U.S. 575 (1990) (explains categorical approach and when charging documents/Shepard materials may show a prior offense is generic burglary)
- Welch v. United States, 578 U.S. 120 (2016) (held Johnson announced a substantive rule retroactive on collateral review)
- United States v. Driscoll, 892 F.3d 1127 (10th Cir. 2018) (framework for determining whether sentencing court relied on residual clause)
- United States v. Maldonado, 696 F.3d 1095 (10th Cir. 2012) (discussing uncertainty in Tenth Circuit about treating California burglary as ACCA predicate)