United States v. Driscoll
892 F.3d 1127
10th Cir.2018Background
- In 2004 Driscoll pleaded guilty to being a felon in possession of a firearm and a related § 924(c) offense; at his 2005 sentencing the PSR classified him as an Armed Career Criminal (ACCA) based on two burglaries and a drug conviction.
- The sentencing transcript and PSR did not specify whether the court relied on the ACCA enumerated-offenses clause or the residual clause to treat the prior burglaries as violent felonies. Driscoll did not object at sentencing.
- In 2015 the Supreme Court in Johnson v. United States struck down the ACCA residual clause as unconstitutionally vague; Welch made Johnson retroactive to collateral review. Driscoll filed a § 2255 motion within a year of Johnson.
- The district court dismissed the § 2255 motion as time-barred, reasoning Driscoll could not show the sentencing court relied on the residual clause. The Tenth Circuit granted appeal.
- The Tenth Circuit held Driscoll’s Johnson claim was timely and not procedurally defaulted (cause and prejudice), applied the "more likely than not" burden for proving reliance on the residual clause, and analyzed whether Nebraska burglary (§ 28-507) categorically qualified as generic burglary.
- The court concluded Nebraska’s statute sweeps to "real estate" (including land and improvements), not just buildings, so the 1988 Nebraska conviction did not categorically match generic burglary; because the sentencing court likely relied on the residual clause, Driscoll’s ACCA enhancement was invalid. The court reversed, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Driscoll) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Timeliness under § 2255(f) | Johnson claim filed within one year of Johnson, so timely | Motion is time-barred because cannot show residual-clause reliance | Timely: § 2255(f)(3) applies because Driscoll asserted Johnson right within a year |
| Procedural default / Cause & Prejudice | Johnson was not reasonably available on direct appeal; error affected sentencing range | Procedural default and no prejudice shown | Cause and prejudice shown; claim overcomes procedural default |
| Did sentencing court rely on ACCA residual clause? | Sentencing record ambiguous; background law (Taylor) made enumerated-clause reliance impossible here, so residual clause was likely used | Movant must prove residual-clause reliance; record ambiguous so gov't argues enhancement stands | Held Driscoll met "more likely than not" burden: given the statutory text and record, sentencing court likely relied on residual clause |
| Harmless-error: Does Nebraska burglary qualify as generic burglary? | Nebraska statute covers "any real estate or any improvements erected thereon" (land + improvements) and thus is broader than generic burglary (buildings/structures) | Argues "real estate" should be read to mean buildings/structures and thus qualifies categorically | Held § 28-507 is broader than generic burglary and does not categorically qualify; error was not harmless; ACCA enhancement invalid |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (ACCA residual clause is unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (U.S. 2016) (Johnson applies retroactively on collateral review)
- Taylor v. United States, 495 U.S. 575 (U.S. 1990) (categorical approach to burglary under the ACCA)
- Brecht v. Abrahamson, 507 U.S. 619 (U.S. 1993) (harmless-error standard for collateral relief)
- United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017) (timeliness, cause/prejudice, and background-law analysis where sentencing record ambiguous)
- Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (movant must show "more likely than not" the residual clause was the basis for enhancement)
- United States v. Washington, 890 F.3d 891 (10th Cir. 2018) (adopts "more likely than not" burden in § 2255 context)