United States v. Washington
890 F.3d 891
10th Cir.2018Background
- In 2011 Cory Devon Washington pleaded guilty in W.D. Okla. to being a felon in possession of a firearm and possessing an unregistered firearm; the district court sentenced him to the ACCA mandatory minimum of 15 years based on three prior offenses (juvenile pointing-a-weapon adjudication, assault and battery with a dangerous weapon, Oklahoma second-degree burglary).
- Washington objected at sentencing only that the juvenile adjudication was not a qualifying conviction; the court rejected the objection and imposed the ACCA enhancement; this court affirmed on direct appeal.
- After Johnson v. United States (2015) struck the ACCA residual clause, Washington obtained authorization to file a second-or-successive § 2255 raising a Johnson claim that his ACCA enhancement relied on the now-invalid residual clause.
- The district court dismissed the second § 2255 as failing § 2244 gatekeeping: it concluded Washington did not show by a preponderance that the sentencing court relied on the residual clause (i.e., his claim did not "rely on" Johnson). Washington appealed.
- The Tenth Circuit affirmed: it held the burden is on the movant to prove by a preponderance that the sentencing court actually relied on the residual clause, and the record (PSR, background legal environment, controlling precedent) showed the sentencing court could have and likely did rely on the elements/enumerated clauses for both the burglary and pointing-a-weapon adjudications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washington satisfied § 2244(b)’s authorization gate by showing his claim "relies on" Johnson | Washington: Johnson retroactively invalidates the residual clause, and because records often do not state which ACCA clause was used, he need only show the court could have relied on the residual clause | Government: Movant must show his claim actually relies on Johnson; mere possibility is insufficient | Held: Movant bears burden by a preponderance to show his claim relies on Johnson; mere possibility is insufficient. |
| Whether Oklahoma second-degree burglary conviction was likely treated under the residual clause at sentencing | Washington: Sentencing record is silent; residual clause could have been the basis | Government: At sentencing existing precedent treated Oklahoma burglary as generic burglary under the ACCA enumerated clause (Taylor), so reliance on residual clause unlikely | Held: Court finds burglary fit Taylor generic-burglary; movant failed to show by preponderance that the district court relied on the residual clause. |
| Whether juvenile pointing-a-weapon adjudication more likely than not was classified under the residual clause at sentencing | Washington: Many low-level statutes were being folded into the residual clause; court’s silence suggests residual clause reliance | Government: Precedent (Herron, Ramon Silva, Brothers, and analogous authority) supported treating pointing/menacing statutes as fitting the elements clause | Held: Record and background law made elements-clause characterization plausible; movant failed to show by preponderance that sentencing relied on the residual clause. |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson is retroactive on collateral review)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (limits modified categorical approach; distinguishes alternative elements from alternative means)
- United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017) (inquiry into background legal environment and materials before sentencing court to determine whether residual clause was relied upon)
- United States v. Hood, 774 F.3d 638 (10th Cir. 2014) (similar pointing-a-weapon offense held to fall within the ACCA elements clause)
- Dimott v. United States, 881 F.3d 232 (1st Cir. 2018) (movant must prove by a preponderance that sentencing relied on residual clause)
- Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (similar holding on burden to show reliance on residual clause)
- United States v. Washington, 706 F.3d 1215 (10th Cir. 2012) (direct appeal affirming ACCA enhancement)